By: Larson, et al. (Senate Sponsor - Perry) H.B. No. 31
(In the Senate - Received from the House April 26, 2017;
May 15, 2017, read first time and referred to Committee on
Agriculture, Water & Rural Affairs; May 19, 2017, reported
adversely, with favorable Committee Substitute by the following
vote: Yeas 5, Nays 0; May 19, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 31 By: Perry
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of groundwater.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 35.018(b), Water Code, is amended to
read as follows:
(b) The report must include:
(1) the names and locations of all priority
groundwater management areas and districts created or attempted to
be created on or after November 5, 1985, the effective date of
Chapter 133 (H.B. No. 2), Acts of the 69th Legislature, Regular
Session, 1985;
(2) the authority under which each priority
groundwater management area and district was proposed for creation;
(3) a detailed analysis of each election held to
confirm the creation of a district, including analysis of election
results, possible reasons for the success or failure to confirm the
creation of a district, and the possibility for future voter
approval of districts in areas in which attempts to create
districts failed;
(4) a detailed analysis of the activities of each
district created, including those districts which are implementing
management plans certified under Section 36.1072;
(5) a report on [audits performed on districts under
Section 36.302 and] remedial actions taken under Section 36.303;
(6) recommendations for changes in this chapter and
Chapter 36 that will facilitate the creation of priority
groundwater management areas and the creation and operation of
districts;
(7) a report on educational efforts in newly
designated priority groundwater management areas; and
(8) any other information and recommendations that the
commission considers relevant.
SECTION 2. Sections 36.001(2) and (7), Water Code, are
amended to read as follows:
(2) "Commission" means the Texas [Natural Resource
Conservation] Commission on Environmental Quality or its
successor.
(7) "Subdivision of a groundwater reservoir" means a
definable part of a groundwater reservoir in which the groundwater
supply will not be appreciably affected by withdrawing water from
any other part of the reservoir, as indicated by known geological
and hydrological conditions and relationships [and on foreseeable
economic development] at the time the subdivision is designated or
altered.
SECTION 3. Sections 36.002(a) and (b), Water Code, are
amended to read as follows:
(a) A [The legislature recognizes that a] landowner owns the
groundwater below the surface of the landowner's land as real
property.
(b) The groundwater ownership and rights described by this
section entitle the landowner, including a landowner's lessees,
heirs, or assigns, to:
(1) drill for and produce the groundwater below the
surface of real property, subject to Subsection (d), without
causing waste or malicious drainage of other property or
negligently causing subsidence; [and]
(2) the right to use groundwater for a beneficial use
without causing waste; and
(3) [have] any other right recognized under common
law.
SECTION 4. Section 36.020(a), Water Code, is amended to
read as follows:
(a) At an election to create a district, the temporary
directors may include a proposition for the issuance of bonds or
notes, the levy of taxes to retire all or part of the bonds or notes,
and the levy of a maintenance tax. The maintenance tax rate may not
exceed 37.5 [50] cents on each $100 of assessed valuation.
SECTION 5. Section 36.061(b), Water Code, is amended to
read as follows:
(b) The state auditor may conduct a financial audit [the
records] of any district if the state auditor determines that the
audit is necessary.
SECTION 6. Section 36.062, Water Code, is amended to read as
follows:
Sec. 36.062. OFFICES AND MEETING PLACES. (a) The board
shall designate from time to time and maintain one or more regular
offices for conducting the business of the district and maintaining
the records of the district. Such offices must be reasonably
accessible to members of the public who reside in the district and
may be located either inside or outside the district's boundaries
as determined in the discretion of the board.
(b) The board shall designate one or more places reasonably
accessible to members of the public who reside in the district
inside or outside the district for conducting the meetings of the
board.
SECTION 7. Section 36.101(c), Water Code, is amended to
read as follows:
(c) The board shall compile its rules and make them
available for use and inspection at each of the district's offices
[principal office].
SECTION 8. Sections 36.1071(e) and (f), Water Code, are
amended to read as follows:
(e) In the management plan described under Subsection (a),
the district shall:
(1) identify the performance standards and management
objectives under which the district will operate to achieve the
management goals identified under Subsection (a);
(2) specify, in as much detail as possible, the
actions, procedures, performance, and avoidance that are or may be
necessary to effect the plan, including specifications and proposed
rules; and
(3) include estimates of the following:
(A) modeled available groundwater in the
district based on the desired future condition established under
Section 36.108;
(B) the amount of groundwater being used within
the district on an annual basis;
(C) the annual amount of recharge from
precipitation, if any, to the groundwater resources within the
district;
(D) for each aquifer, the estimated annual volume
of water that discharges:
(i) from the aquifer to springs and any
surface water bodies, including lakes, streams, and rivers; and
(ii) through evaporation or transpiration;
and
(E) the annual volume of lateral and vertical
flow into and out of the district within each aquifer and between
aquifers in the district[, if a groundwater availability model is
available;
[(F) the projected surface water supply in the
district according to the most recently adopted state water plan;
and
[(G) the projected total demand for water in the
district according to the most recently adopted state water plan;
and
[(4) consider the water supply needs and water
management strategies included in the adopted state water plan].
(f) The district shall adopt rules necessary to implement
the management plan. Prior to the development of the management
plan and its approval under Section 36.1072, the district may not
adopt rules other than rules pertaining to the registration and
interim permitting of new and existing wells and rules governing
spacing and procedure before the district's board; however, the
district may not adopt any rules limiting the production of wells,
except rules requiring that groundwater produced from a well be put
to a nonwasteful, beneficial use. A newly created [The] district
may accept applications for permits under Section 36.113, provided
the district does not act on any such application until the
district's initial management plan is approved as provided in
Section 36.1072.
SECTION 9. Section 36.1072(f), Water Code, is amended to
read as follows:
(f) If the executive administrator does not approve the
district's management plan, the executive administrator shall
provide to the district, in writing, the reasons for the
action. Not later than the 180th day after the date a district
receives notice that its management plan has not been approved, the
district may submit a revised management plan for review and
approval. The executive administrator's decision may be appealed
to the development board. If the development board decides not to
approve the district's management plan on appeal, the district may
request that the conflict be mediated. The district and the board
may seek the assistance of the Center for Public Policy Dispute
Resolution at The University of Texas School of Law or an
alternative dispute resolution system established under Chapter
152, Civil Practice and Remedies Code, in obtaining a qualified
impartial third party to mediate the conflict. The cost of the
mediation services must be specified in the agreement between the
parties and the Center for Public Policy Dispute Resolution or the
alternative dispute resolution system. If the parties do not
resolve the conflict through mediation, the decision of the
development board not to approve the district's management plan may
be appealed to a district court in Travis County. Costs for the
appeal shall be set by the court hearing the appeal. An appeal
under this subsection is by trial de novo. The commission shall
not take enforcement action against a district under Subchapter I
until the latest of the expiration of the 180-day period, the date
the development board has taken final action withholding approval
of a revised management plan, the date the mediation is completed,
or the date a final judgment upholding the board's decision is
entered by a district court. An enforcement action may not be
taken against a district by the commission [or the state auditor]
under Subchapter I because the district's management plan and the
approved regional water plan are in conflict while the parties are
attempting to resolve the conflict before the development board, in
mediation, or in court. Rules of the district continue in full
force and effect until all appeals under this subsection have been
exhausted and the final judgment is adverse to the district.
SECTION 10. Section 36.108(d), Water Code, is amended to
read as follows:
(d) Not later than September 1, 2010, and every five years
thereafter, the districts shall consider groundwater monitoring
data, 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 feasibility of achieving the desired future
condition and the degree to which any previously adopted desired
future condition is being achieved; and
(9) any other information relevant to the specific
desired future conditions.
SECTION 11. Section 36.113, Water Code, is amended by
amending Subsections (c) and (d) and adding Subsection (d-1) to
read as follows:
(c) A district may require that only the following be
included in the permit or permit amendment application, as
applicable under the rules of the district:
(1) the name and mailing address of the applicant and
the owner of the land on which the well will be located;
(2) if the applicant is other than the owner of the
property, documentation establishing the applicable authority to
construct and operate a well for the proposed use;
(3) a statement of the nature and purpose of the
proposed use and the amount of water to be used for each purpose;
(4) a water conservation plan or a declaration that
the applicant will comply with the district's management plan;
(5) the location of each well and the estimated rate at
which water will be withdrawn;
(6) a water well closure plan or a declaration that the
applicant will comply with well plugging guidelines and report
closure to the commission; [and]
(7) a drought contingency plan; and
(8) other information:
(A) included in a rule of the district in effect
on the date the application is submitted that specifies what
information must be included in an application for a determination
of administrative completeness; and
(B) reasonably related to an issue that a
district is authorized to consider under this chapter.
(d) This subsection does not apply to the renewal of an
operating permit issued under Section 36.1145. Before granting or
denying a permit, or a permit amendment issued in accordance with
Section 36.1146, the district shall consider whether:
(1) the application conforms to the requirements
prescribed by this chapter and is accompanied by the prescribed
fees;
(2) the proposed use of water unreasonably affects:
(A) existing groundwater and surface water
resources; [or]
(B) existing permit holders; or
(C) registered wells that are exempt from the
requirement to obtain a permit under this chapter or district
rules;
(3) the proposed use of water is dedicated to any
beneficial use;
(4) the proposed use of water is consistent with the
district's approved management plan;
(5) if the well will be located in the Hill Country
Priority Groundwater Management Area, the proposed use of water
from the well is wholly or partly to provide water to a pond, lake,
or reservoir to enhance the appearance of the landscape;
(6) the applicant has agreed to avoid waste and
achieve water conservation; and
(7) the applicant has agreed that reasonable diligence
will be used to protect groundwater quality and that the applicant
will follow well plugging guidelines at the time of well closure.
(d-1) The district's consideration of the effect the
proposed use of water has on a registered well described by
Subsection (d)(2)(C) does not affect the registered well's permit
exemption under this chapter or district rules.
SECTION 12. Section 36.114(h), Water Code, is amended to
read as follows:
(h) An application is administratively complete if it
contains the [application requires] information set forth under [in
accordance with] Sections 36.113 and 36.1131. A district may not
require that additional information be included in an application
for a determination of administrative completeness.
SECTION 13. Subchapter D, Chapter 36, Water Code, is
amended by adding Section 36.1147 to read as follows:
Sec. 36.1147. LIMITATION ON APPLICABILITY OF RULES. The
rules of a district in effect on the date an application for a
permit or a permit amendment is submitted to the district are the
only district rules that may govern the district's decision to
grant or deny the application.
SECTION 14. The heading to Section 36.122, Water Code, is
amended to read as follows:
Sec. 36.122. EXPORT [TRANSFER] OF GROUNDWATER OUT OF
DISTRICT.
SECTION 15. Section 36.122, Water Code, is amended by
amending Subsections (a), (b), (c), (d), (f), and (k) and adding
Subsections (f-1) and (f-2) to read as follows:
(a) This section applies to [If] an application for a permit
or an amendment to a permit under Section 36.113 that proposes the
export [transfer] of groundwater for use outside of a district's
boundaries[, the district may also consider the provisions of this
section in determining whether to grant or deny the permit or permit
amendment].
(b) A district may promulgate rules requiring a person to
obtain an operating [a] permit or an amendment to an operating [a]
permit under Section 36.113 from the district to produce and export
[for the transfer of] groundwater. A district may not require a
separate permit for the export of groundwater for use outside [out]
of the district [to:
[(1) increase, on or after March 2, 1997, the amount of
groundwater to be transferred under a continuing arrangement in
effect before that date; or
[(2) transfer groundwater out of the district on or
after March 2, 1997, under a new arrangement].
(c) Except as provided in Subsection (e) [Section
36.113(e)], the district may not impose more restrictive permit
conditions on exporters [transporters] than the district imposes on
[existing] in-district users. A district may not deny a permit
solely because the applicant intends to export groundwater for use
outside of the district.
(d) The district may impose a reasonable fee for processing
an application under this section. The fee may not exceed fees that
the district imposes for processing other applications under
Section 36.113. An application filed under [to comply with] this
section shall be considered and processed under the same procedures
as other applications for permits under Section 36.113 [and shall
be combined with applications filed to obtain a permit for
in-district water use under Section 36.113 from the same
applicant].
(f) In reviewing a proposed transfer of groundwater out of
the district, the district shall consider:
(1) the availability of water in the district [and in
the proposed receiving area] during the period for which the water
supply is requested; and
(2) the projected effect of the proposed transfer on
aquifer conditions, depletion, subsidence, or effects on existing
permit holders or other groundwater users within the district[; and
[(3) the approved regional water plan and approved
district management plan].
(f-1) A term for a permit issued under this section that
existed on May 29, 2017, shall automatically be extended on or
before its expiration:
(1) to a term that is not shorter than the term of an
operating permit for the production of water to be exported that is
in effect at the time of the extension; and
(2) for each additional term for which that operating
permit for production is renewed under Section 36.1145 or remains
in effect under Section 36.1146.
(f-2) A term automatically extended under Subsection (f-1)
continues to be subject to conditions contained in the permit as
issued before the automatic extension.
(k) A [Notwithstanding the period specified in Subsections
(i) and (j) during which water may be transferred under a permit, a]
district may periodically review the amount of water that may be
transferred under the permit and may limit the amount if additional
factors considered in Subsection (f) warrant the limitation,
subject to Subsection (c). The review described by this subsection
may take place not more frequently than the period provided for the
review or renewal of regular permits issued by the district. In its
determination of whether to renew a permit issued under this
section, the district shall consider relevant and current data for
the conservation of groundwater resources and shall consider the
permit in the same manner it would consider any other permit in the
district.
SECTION 16. Section 36.201(b), Water Code, is amended to
read as follows:
(b) The board may annually levy taxes to pay the maintenance
and operating expenses of the district at a rate not to exceed 37.5
[50] cents on each $100 of assessed valuation.
SECTION 17. Section 36.303(a), Water Code, is amended to
read as follows:
(a) If Section 36.301 or [,] 36.3011[, or 36.302(f)]
applies, the commission, after notice and hearing in accordance
with Chapter 2001, Government Code, shall take action the
commission considers appropriate, including:
(1) issuing an order requiring the district to take
certain actions or to refrain from taking certain actions;
(2) dissolving the board in accordance with Sections
36.305 and 36.307 and calling an election for the purpose of
electing a new board;
(3) requesting the attorney general to bring suit for
the appointment of a receiver to collect the assets and carry on the
business of the groundwater conservation district; or
(4) dissolving the district in accordance with
Sections 36.304, 36.305, and 36.308.
SECTION 18. Sections 36.4051(a) and (d), Water Code, are
amended to read as follows:
(a) The board may take action on any uncontested application
at a properly noticed public meeting held at any time after the
public hearing at which the application is scheduled to be heard.
The board may issue a written order to:
(1) grant the application;
(2) grant the application with special conditions
provided that the applicant agrees to the conditions before the
issuance of the order; or
(3) deny the application.
(d) An applicant may, not later than the 20th day after the
date the board issues an order granting or denying the application,
demand a contested case hearing [if the order:
[(1) includes special conditions that were not part of
the application as finally submitted; or
[(2) grants a maximum amount of groundwater production
that is less than the amount requested in the application].
SECTION 19. Chapter 36, Water Code, is amended by adding
Subchapter M-1 to read as follows:
SUBCHAPTER M-1. MORATORIUM ON ISSUING PERMIT
Sec. 36.426. PROCEDURE FOR ADOPTING MORATORIUM. A district
may not adopt a moratorium on the issuance of a permit or permit
amendment unless the district:
(1) complies with the notice and hearing procedures
prescribed by Section 36.427; and
(2) makes written findings supporting the district's
determination regarding the issuance, including the district's
justification for imposing the moratorium, if applicable.
Sec. 36.427. NOTICE AND PUBLIC HEARING REQUIREMENTS. (a) A
district may impose a moratorium on the issuance of a permit or
permit amendment only after the district conducts a public hearing
as provided by this section. The public hearing must provide
residents of the district and other affected parties an opportunity
to be heard.
(b) The district shall publish notice of the date, time, and
place of the hearing in a newspaper of general circulation in the
district on or before the fourth day before the date of the hearing.
(c) During the period beginning on the fifth business day
after the date a notice is published under Subsection (b) and ending
on the date the district makes its determination under Subsection
(d), a temporary moratorium is imposed. During that period, a
district may stop issuing permits or permit amendments.
(d) Not later than the 12th day after the date of the public
hearing, the district shall make a final determination on whether
to impose the moratorium and shall issue written findings
supporting the district's determination, including the district's
justification for imposing the moratorium, if applicable.
Sec. 36.428. EXPIRATION OF MORATORIUM; EXTENSION
PROHIBITED. A moratorium imposed under this subchapter expires on
the 90th day after the date the district makes its determination
under Section 36.427(d) to impose the moratorium. The district may
not extend a moratorium imposed under this subchapter.
SECTION 20. Section 8824.101, Special District Local Laws
Code, is amended to read as follows:
Sec. 8824.101. RESTRICTIONS ON GENERAL POWERS. Section
[Sections] 36.103 [and 36.104], Water Code, does [do] not apply to
the district.
SECTION 21. Section 8833.102, Special District Local Laws
Code, is amended to read as follows:
Sec. 8833.102. LIMITATIONS ON DISTRICT POWERS. The
district may not impose:
(1) a tax; [or]
(2) a fee on a well used exclusively for domestic or
livestock watering purposes; or
(3) production fees for an annual period greater than
$1 per acre-foot for water used for agricultural use or 17 cents per
thousand gallons for water used for any other purpose.
SECTION 22. Section 11, Chapter 1321, Acts of the 77th
Legislature, Regular Session, 2001, is amended by adding Subsection
(b-1) to read as follows:
(b-1) The district may not assess production fees for an
annual period greater than $1 per acre-foot for water used for
agricultural use or 17 cents per thousand gallons for water used for
any other purpose.
SECTION 23. The following provisions of the Water Code are
repealed:
(1) Section 36.001(31), as added by Chapter 415 (H.B.
2767), Acts of the 84th Legislature, Regular Session, 2015;
(2) Section 36.104;
(3) Section 36.1072(g);
(4) Section 36.108(d-5);
(5) Sections 36.122(i), (j), (l), (m), (n), (p), and
(q);
(6) Section 36.205(d); and
(7) Section 36.302.
SECTION 24. A moratorium on the issuance of a permit or
permit amendment that is adopted by a groundwater conservation
district before September 1, 2017, may not continue in effect after
November 30, 2017.
SECTION 25. (a) A permit to export groundwater approved by
a groundwater conservation district before the effective date of
this Act is validated and confirmed in all respects. This
subsection does not apply to a permit to export groundwater that is
subject to litigation:
(1) that is pending on the effective date of this Act;
or
(2) that results in final judgment that may not be
appealed that the permit is invalid.
(b) An administratively complete permit application to
export groundwater received by a groundwater conservation district
before the effective date of this Act is governed by the law in
effect when the application became administratively complete. The
former law is continued for the purpose of processing an
application received before the effective date of this Act.
(c) Except as provided by Subsection (b) of this section,
the changes in law made by this Act apply only to an application for
a permit or a permit amendment that is received by a groundwater
conservation district on or after the effective date of this Act.
An application for a permit or permit amendment that is received
before the effective date of this Act is governed by the law in
effect on the date the application is received, and that law is
continued in effect for that purpose.
SECTION 26. To the extent of any conflict, this Act prevails
over another Act of the 85th Legislature, Regular Session, 2017,
relating to changes to Chapter 36, Water Code, or nonsubstantive
additions to and corrections in enacted codes.
SECTION 27. This Act takes effect September 1, 2017.
* * * * *