Texas 2017 - 85th Regular

Texas House Bill HB3028 Compare Versions

Only one version of the bill is available at this time.

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1	1	85R9799 AAF-F
2	2	By: Burns H.B. No. 3028
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to groundwater ownership and rights.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 36.001, Water Code, is amended by adding
10	10	Subdivision (32) to read as follows:
11	11	(32) "Fair share" means a reasonable quantification,
12	12	based on the best available science, of the amount of groundwater in
13	13	place beneath each tract of land overlying an aquifer, subdivision
14	14	of an aquifer, or geologic formation that may be produced:
15	15	(A) under the applicable desired future
16	16	conditions adopted under Section 36.108;
17	17	(B) under the operating and hydrogeological
18	18	conditions of the area; and
19	19	(C) without resulting in the confiscation by
20	20	uncompensated drainage of the fair share of groundwater in place
21	21	under other tracts of land.
22	22	SECTION 2. Sections 36.002(b), (b-1), (c), and (d), Water
23	23	Code, are amended to read as follows:
24	24	(b) The groundwater ownership and rights recognized
25	25	[described] by this section entitle the landowner, including a
26	26	landowner's lessees, heirs, or assigns, to:
27	27	(1) drill for and produce the groundwater below the
28	28	surface of real property, subject to Subsection (d), without
29	29	causing waste or malicious drainage of other property or
30	30	negligently causing subsidence; [and]
31	31	(2) be afforded a fair share of groundwater when the
32	32	right to drill a well and produce groundwater is regulated under
33	33	this chapter; and
34	34	(3) have any other right recognized under common law.
35	35	(b-1) The groundwater ownership and rights recognized
36	36	[described] by this section do not:
37	37	(1) entitle a landowner, including a landowner's
38	38	lessees, heirs, or assigns, to the [right to capture a] specific
39	39	amount of groundwater below the surface of that landowner's land;
40	40	or
41	41	(2) affect the existence of common law defenses or
42	42	other defenses to liability under the rule of capture.
43	43	(c) Nothing in this code shall be construed as granting the
44	44	authority to deprive or divest a landowner, including a landowner's
45	45	lessees, heirs, or assigns, of the groundwater ownership and rights
46	46	recognized [described] by this section.
47	47	(d) This section does not:
48	48	(1) prohibit a district from adopting or enforcing
49	49	rules authorized under this chapter for a public purpose consistent
50	50	with Section 59, Article XVI, Texas Constitution [limiting or
51	51	prohibiting the drilling of a well by a landowner for failure or
52	52	inability to comply with minimum well spacing or tract size
53	53	requirements adopted by the district]; or
54	54	(2) [affect the ability of a district to regulate
55	55	groundwater production as authorized under Section 36.113, 36.116,
56	56	or 36.122 or otherwise under this chapter or a special law governing
57	57	a district; or
58	58	[(3)] require that a rule adopted by a district
59	59	allocate to each landowner a proportionate share of available
60	60	groundwater for production from the aquifer based on the number of
61	61	acres owned by the landowner.
62	62	SECTION 3. Section 36.066(g), Water Code, is amended to
63	63	read as follows:
64	64	(g) If the district prevails in any suit other than a suit in
65	65	which it voluntarily intervenes or in which it challenges the
66	66	validity of a law, rule, or order under the Texas Constitution, the
67	67	district may seek and the court may [shall] grant, in the interests
68	68	of justice and as provided by Subsection (h), in the same action,
69	69	recovery for attorney's fees, costs for expert witnesses, and other
70	70	costs incurred by the district before the court. The amount of the
71	71	attorney's fees shall be fixed by the court.
72	72	SECTION 4. Section 36.101(a), Water Code, is amended to
73	73	read as follows:
74	74	(a) A district may make and enforce rules, including rules
75	75	limiting groundwater production based on tract size or the spacing
76	76	of wells, to provide for conserving, preserving, protecting, and
77	77	recharging of the groundwater or of a groundwater reservoir or its
78	78	subdivisions in order to control subsidence, prevent degradation of
79	79	water quality, or prevent waste of groundwater and to carry out the
80	80	powers and duties provided by this chapter. In adopting a rule
81	81	under this chapter, a district [shall]:
82	82	(1) shall consider all groundwater uses and needs;
83	83	(2) shall develop rules that are fair and impartial;
84	84	(3) shall protect [consider] the groundwater
85	85	ownership and rights recognized [described] by Section 36.002;
86	86	(4) may not restrict the exercise of a person's
87	87	groundwater ownership and rights unless it is necessary
88	88	for [consider] the public interest in conservation, preservation,
89	89	protection, recharging, and prevention of waste of groundwater, and
90	90	of groundwater reservoirs or their subdivisions, and in controlling
91	91	subsidence caused by withdrawal of groundwater from those
92	92	groundwater reservoirs or their subdivisions, consistent with the
93	93	objectives of Section 59, Article XVI, Texas Constitution;
94	94	(5) shall consider the goals developed as part of the
95	95	district's management plan under Section 36.1071; and
96	96	(6) may not discriminate between land that is
97	97	irrigated for production and land that was irrigated for production
98	98	and enrolled or participating in a federal conservation program.
99	99	SECTION 5. Section 36.1071(a), Water Code, is amended to
100	100	read as follows:
101	101	(a) Following notice and hearing, the district shall, in
102	102	coordination with surface water management entities on a regional
103	103	basis, develop a management plan that addresses the following
104	104	management goals, as applicable:
105	105	(1) providing the most efficient use of groundwater;
106	106	(2) controlling and preventing waste of groundwater;
107	107	(3) controlling and preventing subsidence;
108	108	(4) addressing conjunctive surface water management
109	109	issues;
110	110	(5) addressing natural resource issues;
111	111	(6) addressing drought conditions;
112	112	(7) addressing conservation, recharge enhancement,
113	113	rainwater harvesting, precipitation enhancement, or brush control,
114	114	where appropriate and cost-effective; [and]
115	115	(8) addressing the desired future conditions adopted
116	116	by the district under Section 36.108; and
117	117	(9) protecting the groundwater ownership and rights
118	118	recognized by Section 36.002.
119	119	SECTION 6. The heading to Section 36.108, Water Code, is
120	120	amended to read as follows:
121	121	Sec. 36.108. ESTABLISHING DESIRED FUTURE CONDITIONS [JOINT
122	122	PLANNING] IN MANAGEMENT AREA.
123	123	SECTION 7. Sections 36.108(c), (d), and (d-2), Water Code,
124	124	are amended to read as follows:
125	125	(c) The district representatives shall meet at least
126	126	annually to [conduct joint planning with the other districts in the
127	127	management area and to] review the management plans, the
128	128	accomplishments of the management area, and proposals to adopt new
129	129	or amend existing desired future conditions. In reviewing the
130	130	management plans, the districts shall consider:
131	131	(1) the goals of each management plan and its impact on
132	132	planning throughout the management area;
133	133	(2) the effectiveness of the measures established by
134	134	each district's management plan for protecting private property
135	135	rights, conserving and protecting groundwater, and preventing
136	136	waste, and the effectiveness of these measures in the management
137	137	area generally;
138	138	(3) any other matters that the boards consider
139	139	relevant to the protection of private property rights, protection
140	140	and conservation of groundwater, and the prevention of waste in the
141	141	management area; and
142	142	(4) the degree to which each management plan achieves
143	143	the desired future conditions adopted under Subsection (d-4)
144	144	[established during the joint planning process].
145	145	(d) Not later than September 1, 2010, and every five years
146	146	thereafter, the districts shall consider groundwater availability
147	147	models and other data or information for the management area and
148	148	shall propose for adoption desired future conditions for the
149	149	relevant aquifers within the management area. Before voting on the
150	150	proposed desired future conditions of the aquifers under Subsection
151	151	(d-2), the districts shall consider:
152	152	(1) aquifer uses or conditions within the management
153	153	area, including conditions that differ substantially from one
154	154	geographic area to another;
155	155	(2) the water supply needs and water management
156	156	strategies included in the state water plan;
157	157	(3) hydrological conditions, including for each
158	158	aquifer in the management area the total estimated recoverable
159	159	storage as provided by the executive administrator, and the average
160	160	annual recharge, inflows, and discharge;
161	161	(4) other environmental impacts, including impacts on
162	162	spring flow and other interactions between groundwater and surface
163	163	water;
164	164	(5) the impact on subsidence;
165	165	(6) socioeconomic impacts reasonably expected to
166	166	occur;
167	167	(7) the impact on the interests and rights in private
168	168	property, including ownership and the rights of management area
169	169	landowners and their lessees and assigns in groundwater as
170	170	recognized by [under] Section 36.002;
171	171	(8) the feasibility of achieving the desired future
172	172	condition; and
173	173	(9) any other information relevant to the specific
174	174	desired future conditions.
175	175	(d-2) The desired future conditions proposed and approved
176	176	under this section [Subsection (d)] must allow [provide a balance
177	177	between] the highest practicable level of groundwater production of
178	178	the total estimated recoverable storage that is consistent with the
179	179	groundwater ownership and rights recognized by Section 36.002,
180	180	[and] the reasonable conservation, preservation, protection,
181	181	recharging, and prevention of waste of groundwater, and control of
182	182	subsidence in the management area. This subsection does not
183	183	prohibit the establishment of desired future conditions that
184	184	provide for the reasonable long-term management of groundwater
185	185	resources consistent with the management goals under Section
186	186	36.1071(a). The desired future conditions proposed under
187	187	Subsection (d) must be approved by a two-thirds vote of all the
188	188	district representatives for distribution to the districts in the
189	189	management area. A period of not less than 90 days for public
190	190	comments begins on the day the proposed desired future conditions
191	191	are mailed to the districts. During the public comment period and
192	192	after posting notice as required by Section 36.063, each district
193	193	shall hold a public hearing on any proposed desired future
194	194	conditions relevant to that district. During the public comment
195	195	period, the district shall make available in its office a copy of
196	196	the proposed desired future conditions and any supporting
197	197	materials, such as the documentation of factors considered under
198	198	Subsection (d) and groundwater availability model run results.
199	199	After the public hearing, the district shall compile for
200	200	consideration at the next joint planning meeting a summary of
201	201	relevant comments received, any suggested revisions to the proposed
202	202	desired future conditions, and the basis for the revisions.
203	203	SECTION 8. Sections 36.113(c), (d), (e), (f), and (h),
204	204	Water Code, are amended to read as follows:
205	205	(c) A district may require that the following be included in
206	206	the permit or permit amendment application:
207	207	(1) the name and mailing address of the applicant and
208	208	the owner of the land on which the well will be located;
209	209	(2) if the applicant is other than the owner of the
210	210	property, documentation establishing the applicable authority to
211	211	construct and operate a well for the proposed use;
212	212	(3) a statement of the nature and purpose of the
213	213	proposed use and the amount of water to be used for each purpose;
214	214	(4) a water conservation plan or a declaration that
215	215	the applicant will comply with the district's management plan;
216	216	(5) the location of each well and the estimated rate at
217	217	which water will be withdrawn;
218	218	(6) a water well closure plan or a declaration that the
219	219	applicant will comply with well plugging guidelines and report
220	220	closure to the commission; [and]
221	221	(7) a drought contingency plan; and
222	222	(8) documentation of the applicant's ownership
223	223	interest in the proposed groundwater production that demonstrates:
224	224	(A) the application is consistent with the
225	225	applicant's fair share; and
226	226	(B) the applicant's production of groundwater
227	227	will not result in the confiscation by uncompensated drainage of
228	228	another person's fair share.
229	229	(d) This subsection does not apply to the renewal of an
230	230	operating permit issued under Section 36.1145. Before granting or
231	231	denying a permit, or a permit amendment issued in accordance with
232	232	Section 36.1146, the district shall consider whether:
233	233	(1) the application conforms to the requirements
234	234	prescribed by this chapter and is accompanied by the prescribed
235	235	fees;
236	236	(2) the proposed use of water unreasonably affects the
237	237	groundwater ownership and rights recognized by Section 36.002 or
238	238	existing groundwater and surface water resources [or existing
239	239	permit holders];
240	240	(3) the proposed use of water is dedicated to any
241	241	beneficial use;
242	242	(4) the proposed use of water is consistent with the
243	243	district's approved management plan;
244	244	(5) if the well will be located in the Hill Country
245	245	Priority Groundwater Management Area, the proposed use of water
246	246	from the well is wholly or partly to provide water to a pond, lake,
247	247	or reservoir to enhance the appearance of the landscape;
248	248	(6) the applicant has agreed to avoid waste and
249	249	achieve water conservation; and
250	250	(7) the applicant has agreed that reasonable diligence
251	251	will be used to protect groundwater quality and that the applicant
252	252	will follow well plugging guidelines at the time of well closure.
253	253	(e) The district may impose more restrictive permit
254	254	conditions on new permit applications and permit amendment
255	255	applications to increase use by historic users if the limitations:
256	256	(1) apply to all subsequent new permit applications
257	257	and permit amendment applications to increase use by historic
258	258	users, regardless of type or location of use;
259	259	(2) bear a reasonable relationship to the existing
260	260	district management plan; [and]
261	261	(3) are reasonably necessary to protect existing use;
262	262	and
263	263	(4) are consistent with the groundwater ownership and
264	264	rights recognized by Section 36.002 and with Section 59, Article
265	265	XVI, Texas Constitution.
266	266	(f) This subsection does not apply to the renewal of an
267	267	operating permit issued under Section 36.1145. Permits, and permit
268	268	amendments issued in accordance with Section 36.1146, may be issued
269	269	subject to the rules promulgated by the district and subject to
270	270	terms and provisions with reference to the drilling, equipping,
271	271	completion, alteration, or operation of, or production of
272	272	groundwater from, wells or pumps that may be necessary to:
273	273	(1) protect the groundwater ownership and rights
274	274	recognized by Section 36.002;
275	275	(2) prevent waste and achieve water conservation;
276	276	(3) [,] minimize as far as practicable the drawdown of
277	277	the water table or the reduction of artesian pressure;
278	278	(4) [,] lessen interference between wells; [,] or
279	279	(5) control and prevent subsidence.
280	280	(h) In issuing a permit for an existing or historic use, a
281	281	district may not:
282	282	(1) discriminate between land that is irrigated for
283	283	production and land or wells on land that was irrigated for
284	284	production and enrolled or participating in a federal conservation
285	285	program; or
286	286	(2) issue a permit that will result in the
287	287	confiscation by uncompensated drainage of another person's fair
288	288	share.
289	289	SECTION 9. Section 36.116, Water Code, is amended to read as
290	290	follows:
291	291	Sec. 36.116. REGULATION OF SPACING AND PRODUCTION. (a) In
292	292	order to protect the groundwater ownership and rights recognized by
293	293	Section 36.002, to minimize as far as practicable the drawdown of
294	294	the water table or the reduction of artesian pressure, to control
295	295	subsidence, to prevent interference between wells, to prevent
296	296	degradation of water quality, or to prevent waste, a district by
297	297	rule may regulate:
298	298	(1) the spacing of water wells by:
299	299	(A) requiring all water wells to be spaced a
300	300	certain distance from property lines or adjoining wells;
301	301	(B) requiring wells with a certain production
302	302	capacity, pump size, or other characteristic related to the
303	303	construction or operation of and production from a well to be spaced
304	304	a certain distance from property lines or adjoining wells; or
305	305	(C) imposing spacing requirements adopted by the
306	306	board; and
307	307	(2) the production of groundwater by:
308	308	(A) setting production limits on wells;
309	309	(B) limiting the amount of water produced based
310	310	on acreage or tract size;
311	311	(C) limiting the amount of water that may be
312	312	produced from a defined number of acres assigned to an authorized
313	313	well site;
314	314	(D) limiting the maximum amount of water that may
315	315	be produced on the basis of acre-feet per acre or gallons per minute
316	316	per well site per acre;
317	317	(E) managed depletion; or
318	318	(F) any combination of the methods listed above
319	319	in Paragraphs (A) through (E).
320	320	(b) In promulgating any rules limiting groundwater
321	321	production, the district:
322	322	(1) may preserve historic or existing use before the
323	323	effective date of the rules to the maximum extent practicable
324	324	consistent with the groundwater ownership and rights recognized by
325	325	Section 36.002, Section 59, Article XVI, Texas Constitution, and
326	326	the district's management plan under Section 36.1071 and as
327	327	provided by Section 36.113; and
328	328	(2) may adopt a rule only if the district finds that
329	329	the rule is consistent with the public interest.
330	330	(c) In regulating the production of groundwater based on
331	331	tract size or acreage, a district may consider the service needs or
332	332	service area of a retail public utility in a manner consistent with
333	333	and without resulting in the confiscation by uncompensated drainage
334	334	of the groundwater ownership and rights recognized by Section
335	335	36.002. For the purposes of this subsection, "retail public
336	336	utility" has [shall have] the meaning provided by Section 13.002.
337	337	(d) For the protection of the groundwater ownership and
338	338	rights recognized by Section 36.002 and better management of the
339	339	groundwater resources located in a district or if a district
340	340	determines that conditions in or use of an aquifer differ
341	341	substantially from one geographic area of the district to another,
342	342	the district may adopt different rules for:
343	343	(1) each aquifer, subdivision of an aquifer, or
344	344	geologic strata located in whole or in part within the boundaries of
345	345	the district; or
346	346	(2) each geographic area overlying an aquifer or
347	347	subdivision of an aquifer located in whole or in part within the
348	348	boundaries of the district.
349	349	(e) In regulating the production of groundwater under
350	350	Subsection (a)(2), a district:
351	351	(1) shall select a method that is appropriate based on
352	352	the protection of the groundwater ownership and rights recognized
353	353	by Section 36.002 and hydrogeological conditions of the aquifer or
354	354	aquifers in the district; and
355	355	(2) may limit the amount of water produced based on
356	356	contiguous surface acreage.
357	357	(f) A rule adopted under this section must afford each
358	358	person who has an ownership interest in the groundwater within the
359	359	boundaries of the district a fair share of the groundwater as
360	360	recognized by Section 36.002.
361	361	SECTION 10. Subchapter D, Chapter 36, Water Code, is
362	362	amended by adding Section 36.1161 to read as follows:
363	363	Sec. 36.1161. PETITION FOR RULEMAKING. (a) A person who
364	364	has an ownership interest in groundwater may petition a district
365	365	with authority to regulate the groundwater to adopt rules under
366	366	Section 36.116(d).
367	367	(b) The petitioner has the burden of proof that the rules
368	368	are necessary to protect the groundwater ownership and rights
369	369	recognized by Section 36.002 or to achieve a purpose of this chapter
370	370	because conditions in or use of an aquifer, subdivision of an
371	371	aquifer, or geologic strata differ substantially from:
372	372	(1) another aquifer, subdivision of an aquifer, or
373	373	geologic strata;
374	374	(2) any aquifer, subdivision of an aquifer, or
375	375	geologic strata not currently included in an established desired
376	376	future condition, as of January 1, 2013; or
377	377	(3) one geographic area of the district to another.
378	378	(c) A district shall require the petitioner to provide
379	379	written notice to each person with an ownership interest in
380	380	groundwater that would be affected by the rules requested in the
381	381	petition.
382	382	(d) A district may request technical assistance regarding
383	383	the technical merits of the petition from the Texas Water
384	384	Development Board. The Texas Water Development Board shall provide
385	385	a written technical response not later than the 60th day after the
386	386	date the Texas Water Development Board receives a written request
387	387	for assistance by the district under this subsection.
388	388	(e) A district shall hold a hearing to consider a petition
389	389	submitted under this section in the manner provided by Section
390	390	36.101. A district is not required to provide notice required by
391	391	Sections 36.101(d)(1) through (4).
392	392	(f) A board may grant, modify, or deny a petition by written
393	393	order. The order must include the findings of the board relevant to
394	394	the evidence provided by the petitioner under Subsection (b).
395	395	(g) A person affected by and dissatisfied with a rule
396	396	adopted under this section is entitled to file a suit against the
397	397	district or its directors under Section 36.251.
398	398	SECTION 11. Section 36.117(a), Water Code, is amended to
399	399	read as follows:
400	400	(a) A district by rule may provide an exemption from the
401	401	district's requirement to obtain any permit required by this
402	402	chapter or the district's rules if the exemption is consistent with
403	403	the groundwater ownership and rights recognized by Section 36.002.
404	404	SECTION 12. The changes in law made by this Act apply only
405	405	to an application for a permit or a permit amendment that is
406	406	received by a groundwater conservation district on or after the
407	407	effective date of this Act. An application for a permit or permit
408	408	amendment that is received before the effective date of this Act is
409	409	governed by the law in effect on the date the application is
410	410	received, and that law is continued in effect for that purpose.
411	411	SECTION 13. The changes in law made by this Act apply only
412	412	to a rule of a groundwater conservation district that is adopted on
413	413	or after the effective date of this Act. A rule adopted before the
414	414	effective date of this Act is subject to the law in effect on the
415	415	date the rule took effect, and that law is continued in effect for
416	416	that purpose.
417	417	SECTION 14. This Act takes effect September 1, 2017.