Texas 2017 - 85th Regular

Texas Senate Bill SB1392 Compare Versions

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11 By: Perry S.B. No. 1392
22 (In the Senate - Filed March 7, 2017; March 16, 2017, read
33 first time and referred to Committee on Agriculture, Water & Rural
44 Affairs; May 10, 2017, reported adversely, with favorable
55 Committee Substitute by the following vote: Yeas 5, Nays 2;
66 May 10, 2017, sent to printer.)
77 Click here to see the committee vote
88 COMMITTEE SUBSTITUTE FOR S.B. No. 1392 By: Hinojosa
99
1010
1111 A BILL TO BE ENTITLED
1212 AN ACT
1313 relating to groundwater conservation districts.
1414 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1515 SECTION 1. Sections 36.001(2) and (7), Water Code, are
1616 amended to read as follows:
1717 (2) "Commission" means the Texas [Natural Resource
1818 Conservation] Commission on Environmental Quality or its
1919 successor.
2020 (7) "Subdivision of a groundwater reservoir" means a
2121 definable part of a groundwater reservoir in which the groundwater
2222 supply will not be appreciably affected by withdrawing water from
2323 any other part of the reservoir, as indicated by known geological
2424 and hydrological conditions and relationships [and on foreseeable
2525 economic development] at the time the subdivision is designated or
2626 altered.
2727 SECTION 2. Section 36.0015(b), Water Code, is amended to
2828 read as follows:
2929 (b) In order to provide for the conservation, preservation,
3030 protection, recharging, and prevention of waste of groundwater, and
3131 of groundwater reservoirs or their subdivisions, and to control
3232 subsidence caused by withdrawal of water from those groundwater
3333 reservoirs or their subdivisions, consistent with the objectives of
3434 Section 59, Article XVI, Texas Constitution, groundwater
3535 conservation districts may be created as provided by this chapter.
3636 Groundwater conservation districts created as provided by this
3737 chapter are the state's preferred method of groundwater management
3838 in order to:
3939 (1) protect property rights;
4040 (2) [,] balance the conservation and development of
4141 groundwater to meet the needs of this state;
4242 (3) [, and] use the best available science; and
4343 (4) treat each groundwater owner fairly [in the
4444 conservation and development of groundwater through rules
4545 developed, adopted, and promulgated by a district in accordance
4646 with the provisions of this chapter].
4747 SECTION 3. Sections 36.002(a) and (b), Water Code, are
4848 amended to read as follows:
4949 (a) A [The legislature recognizes that a] landowner owns the
5050 groundwater below the surface of the landowner's land as real
5151 property.
5252 (b) The groundwater ownership and rights described by this
5353 section entitle the landowner, including a landowner's lessees,
5454 heirs, or assigns, to:
5555 (1) drill for and produce the groundwater below the
5656 surface of real property, subject to Subsection (d), without
5757 causing waste or malicious drainage of other property or
5858 negligently causing subsidence; [and]
5959 (2) the right to use groundwater for a beneficial use
6060 without causing waste; and
6161 (3) [have] any other right recognized under common
6262 law.
6363 SECTION 4. Section 36.020(a), Water Code, is amended to
6464 read as follows:
6565 (a) At an election to create a district, the temporary
6666 directors may include a proposition for the issuance of bonds or
6767 notes, the levy of taxes to retire all or part of the bonds or notes,
6868 and the levy of a maintenance tax. The maintenance tax rate may not
6969 exceed 37.5 [50] cents on each $100 of assessed valuation.
7070 SECTION 5. Section 36.062, Water Code, is amended to read as
7171 follows:
7272 Sec. 36.062. OFFICES AND MEETING PLACES. (a) The board
7373 shall designate from time to time and maintain one or more regular
7474 offices for conducting the business of the district and maintaining
7575 the records of the district. Such offices must be reasonably
7676 accessible to members of the public who reside in the district and
7777 may be located either inside or outside the district's boundaries
7878 as determined in the discretion of the board.
7979 (b) The board shall designate one or more places reasonably
8080 accessible to members of the public who reside in the district
8181 inside or outside the district for conducting the meetings of the
8282 board.
8383 SECTION 6. Section 36.101(c), Water Code, is amended to
8484 read as follows:
8585 (c) The board shall compile its rules and make them
8686 available for use and inspection at each of the district's offices
8787 [principal office].
8888 SECTION 7. Sections 36.1071(e) and (f), Water Code, are
8989 amended to read as follows:
9090 (e) In the management plan described under Subsection (a),
9191 the district shall:
9292 (1) identify the performance standards and management
9393 objectives under which the district will operate to achieve the
9494 management goals identified under Subsection (a);
9595 (2) specify, in as much detail as possible, the
9696 actions, procedures, performance, and avoidance that are or may be
9797 necessary to effect the plan, including specifications and proposed
9898 rules; and
9999 (3) include estimates of the following:
100100 (A) modeled available groundwater in the
101101 district based on the desired future condition established under
102102 Section 36.108;
103103 (B) the amount of groundwater being used within
104104 the district on an annual basis;
105105 (C) the annual amount of recharge from
106106 precipitation, if any, to the groundwater resources within the
107107 district;
108108 (D) for each aquifer, the estimated annual volume
109109 of water that discharges:
110110 (i) from the aquifer to springs and any
111111 surface water bodies, including lakes, streams, and rivers; and
112112 (ii) through evaporation or transpiration;
113113 and
114114 (E) the annual volume of lateral and vertical
115115 flow into and out of the district within each aquifer and between
116116 aquifers in the district[, if a groundwater availability model is
117117 available;
118118 [(F) the projected surface water supply in the
119119 district according to the most recently adopted state water plan;
120120 and
121121 [(G) the projected total demand for water in the
122122 district according to the most recently adopted state water plan;
123123 and
124124 [(4) consider the water supply needs and water
125125 management strategies included in the adopted state water plan].
126126 (f) The district shall adopt rules necessary to implement
127127 the management plan. Prior to the development of the management
128128 plan and its approval under Section 36.1072, the district may not
129129 adopt rules other than rules pertaining to the registration and
130130 interim permitting of new and existing wells and rules governing
131131 spacing and procedure before the district's board; however, the
132132 district may not adopt any rules limiting the production of wells,
133133 except rules requiring that groundwater produced from a well be put
134134 to a nonwasteful, beneficial use. A newly created [The] district
135135 may accept applications for permits under Section 36.113, provided
136136 the district does not act on any such application until the
137137 district's initial management plan is approved as provided in
138138 Section 36.1072.
139139 SECTION 8. Section 36.108, Water Code, is amended by
140140 amending Subsections (c), (d), (d-3), and (d-4) and adding
141141 Subsections (c-1) and (c-2) to read as follows:
142142 (c) The district representatives shall meet at least
143143 annually to conduct joint planning with the other districts in the
144144 management area and to review the management plans, the
145145 accomplishments of the management area, and proposals to adopt new
146146 or amend existing desired future conditions. In reviewing the
147147 management plans, the districts shall consider:
148148 (1) the goals of each management plan and its impact on
149149 planning throughout the management area;
150150 (2) the effectiveness of the measures established by
151151 each district's management plan for conserving and protecting
152152 groundwater and preventing waste, and the effectiveness of these
153153 measures in the management area generally;
154154 (3) any other matters that the boards consider
155155 relevant to the protection and conservation of groundwater and the
156156 prevention of waste in the management area; and
157157 (4) the degree to which [each management plan
158158 achieves] the desired future conditions in the management area are
159159 being achieved [established during the joint planning process].
160160 (c-1) Districts in a management area jointly shall
161161 delineate the boundaries of each subdivision of a groundwater
162162 reservoir in the management area, using the best available science.
163163 On request by a district, the development board shall provide
164164 technical assistance with the development of the initial boundaries
165165 and any subsequent updates to the boundaries of a subdivision. The
166166 delineated boundaries of each subdivision must be updated as
167167 necessary to accurately reflect the actual boundaries.
168168 (c-2) Under Subsection (c-1), a district:
169169 (1) may take into consideration conditions that differ
170170 substantially from one geographic area to another in delineating
171171 boundaries of a subdivision of a groundwater reservoir;
172172 (2) shall report to the development board the surface
173173 level boundaries of a subdivision of a groundwater reservoir using
174174 metes and bounds; and
175175 (3) shall maintain in each office of the districts in
176176 the management area copies of the delineations of the subdivisions
177177 of groundwater reservoirs and the report made under Subdivision
178178 (2).
179179 (d) Not later than September 1, 2010, and every five years
180180 thereafter, the districts shall consider groundwater monitoring
181181 data, groundwater availability models, and other data or
182182 information for the management area and shall propose for adoption
183183 desired future conditions for the relevant aquifers within the
184184 management area. Before voting on the proposed desired future
185185 conditions of the aquifers under Subsection (d-2), the districts
186186 shall consider:
187187 (1) aquifer uses or conditions within the management
188188 area, including conditions that differ substantially from one
189189 geographic area to another;
190190 (2) the water supply needs and water management
191191 strategies included in the state water plan;
192192 (3) hydrological conditions, including for each
193193 aquifer in the management area the total estimated recoverable
194194 storage as provided by the executive administrator, and the average
195195 annual recharge, inflows, and discharge;
196196 (4) other environmental impacts, including impacts on
197197 spring flow and other interactions between groundwater and surface
198198 water;
199199 (5) the impact on subsidence;
200200 (6) socioeconomic impacts reasonably expected to
201201 occur;
202202 (7) the impact on the interests and rights in private
203203 property, including ownership and the rights of management area
204204 landowners and their lessees and assigns in groundwater as
205205 recognized under Section 36.002;
206206 (8) the feasibility of achieving the desired future
207207 condition and the degree to which any previously adopted desired
208208 future condition is being achieved; and
209209 (9) any other information relevant to the specific
210210 desired future conditions.
211211 (d-3) After the earlier of the date on which all the
212212 districts have submitted their district summaries or the expiration
213213 of the public comment period under Subsection (d-2), the district
214214 representatives shall reconvene to review the reports, consider any
215215 district's suggested revisions to the proposed desired future
216216 conditions, and finally adopt the desired future conditions for the
217217 management area. The desired future conditions must be approved by
218218 [adopted as] a resolution adopted by a two-thirds vote of all the
219219 district representatives not later than the 90th day after the date
220220 the public comment period expires. Not later than the 180th day
221221 after the expiration of the public comment period, the [The]
222222 district representatives shall produce a desired future conditions
223223 explanatory report for the management area and submit to the
224224 development board and each district in the management area proof
225225 that notice was posted for the joint planning meeting, a copy of the
226226 resolution, and a copy of the explanatory report. The report must:
227227 (1) identify each desired future condition;
228228 (2) provide the policy and technical justifications
229229 for each desired future condition;
230230 (3) include documentation that the factors under
231231 Subsection (d) were considered by the districts and a discussion of
232232 how the adopted desired future conditions impact each factor;
233233 (4) list other desired future condition options
234234 considered, if any, and the reasons why those options were not
235235 adopted; and
236236 (5) discuss reasons why recommendations made by
237237 advisory committees and relevant public comments received by the
238238 districts were or were not incorporated into the desired future
239239 conditions.
240240 (d-4) Not later than the 180th day after the date the public
241241 comment period expires, the district shall submit the explanatory
242242 report under Subsection (d-3) to the development board and [As soon
243243 as possible after a district receives the desired future conditions
244244 resolution and explanatory report under Subsection (d-3), the
245245 district shall] adopt the desired future conditions in the
246246 resolution required by Subsection (d-3) and the explanatory report
247247 that apply to the district.
248248 SECTION 9. Section 36.1083(e), Water Code, is amended to
249249 read as follows:
250250 (e) Not later than the 10th day after receiving a petition
251251 described by Subsection (b), the district shall submit a copy of the
252252 petition to the development board and to each district in the
253253 management area. On receipt of the petition, the development board
254254 shall conduct:
255255 (1) an administrative review to determine whether the
256256 desired future condition established by the district meets the
257257 criteria in Section 36.108(d); and
258258 (2) a study containing scientific and technical
259259 analysis of the desired future condition, including consideration
260260 of:
261261 (A) the hydrogeology of the aquifer;
262262 (B) the explanatory report provided to the
263263 development board under Section 36.108(d-3);
264264 (C) the factors described under Section
265265 36.108(d); and
266266 (D) any relevant:
267267 (i) groundwater availability models;
268268 (ii) published studies;
269269 (iii) estimates of total recoverable
270270 storage capacity;
271271 (iv) average annual amounts of recharge,
272272 inflows, and discharge of groundwater; or
273273 (v) information provided in the petition or
274274 available to the development board.
275275 SECTION 10. Section 36.113(d), Water Code, is amended to
276276 read as follows:
277277 (d) This subsection does not apply to the renewal of an
278278 operating permit issued under Section 36.1145. Before granting or
279279 denying a permit, or a permit amendment issued in accordance with
280280 Section 36.1146, the district shall consider whether:
281281 (1) the application conforms to the requirements
282282 prescribed by this chapter and is accompanied by the prescribed
283283 fees;
284284 (2) for each water well, the proposed spacing of the
285285 wells conforms to the district's rules regulating the spacing of
286286 wells under Section 36.116;
287287 (3) the proposed use of water unreasonably affects
288288 existing groundwater and surface water resources or existing permit
289289 holders;
290290 (4) the proposed annual production conforms to the
291291 district's rules regulating the groundwater production of wells
292292 under Section 36.116;
293293 (5) [(3)] the proposed use of water is dedicated to
294294 any beneficial use;
295295 (6) [(4) the proposed use of water is consistent with
296296 the district's approved management plan;
297297 [(5)] if the well will be located in the Hill Country
298298 Priority Groundwater Management Area, the proposed use of water
299299 from the well is wholly or partly to provide water to a pond, lake,
300300 or reservoir to enhance the appearance of the landscape;
301301 (7) [(6)] the applicant has agreed to avoid waste and
302302 achieve water conservation; and
303303 (8) [(7)] the applicant has agreed that reasonable
304304 diligence will be used to protect groundwater quality and that the
305305 applicant will follow well plugging guidelines at the time of well
306306 closure.
307307 SECTION 11. Section 36.1131(b), Water Code, is amended to
308308 read as follows:
309309 (b) The permit may include:
310310 (1) the name and address of the person to whom the
311311 permit is issued;
312312 (2) the location of the well;
313313 (3) the date the permit is to expire if no well is
314314 drilled;
315315 (4) a statement of the purpose for which the well is to
316316 be used;
317317 (5) a requirement that the water withdrawn under the
318318 permit be put to beneficial use at all times;
319319 (6) the location of the use of the water from the well;
320320 (7) a water well closure plan or a declaration that the
321321 applicant will comply with well plugging guidelines and report
322322 closure to the commission;
323323 (8) the conditions and restrictions[, if any,] placed
324324 by district rules adopted under Section 36.116 on the rate and
325325 amount of withdrawal;
326326 (9) any conservation-oriented methods of drilling and
327327 operating prescribed by the district;
328328 (10) a drought contingency plan prescribed by the
329329 district; and
330330 (11) other terms and conditions as provided by Section
331331 36.113.
332332 SECTION 12. The heading to Section 36.1132, Water Code, is
333333 amended to read as follows:
334334 Sec. 36.1132. DISTRICT MANAGEMENT TO ACHIEVE DESIRED FUTURE
335335 CONDITIONS [PERMITS BASED ON MODELED AVAILABLE GROUNDWATER].
336336 SECTION 13. Section 36.1132, Water Code, is amended by
337337 amending Subsection (b) and adding Subsections (b-1) and (b-2) to
338338 read as follows:
339339 (b) In issuing permits, the district shall manage total
340340 groundwater production on a long-term basis to achieve an
341341 applicable desired future condition and consider:
342342 (1) the modeled available groundwater determined by
343343 the executive administrator;
344344 (2) preparing a report on the degree to which the
345345 desired future conditions are being achieved in the one-year period
346346 after the collection of monitoring data from an aquifer and the
347347 relevant desired future conditions; and
348348 (3) participating in a joint groundwater management
349349 hearing if the report prepared under Subdivision (2) indicates the
350350 desired future conditions are not being achieved.
351351 (b-1) Not later than the second anniversary of the date of
352352 the final adoption of a desired future condition under Section
353353 36.108, and every five years thereafter, district representatives
354354 in a management area shall develop a report as described by this
355355 subsection. The districts shall maintain a copy of the report at
356356 each district office. The report must:
357357 (1) identify and compare the rules adopted under
358358 Section 36.116 by each district in the management area; and
359359 (2) identify differences in rules based on factors
360360 considered in the establishment of desired future conditions
361361 provided by Section 36.108 and the justification for those
362362 differences in the rules.
363363 (b-2) The joint groundwater management hearing held under
364364 Subsection (b)(3) must include a public comment period on the
365365 desired future conditions. During the joint groundwater management
366366 hearing, the districts shall consider:
367367 (1) [(2)] the executive administrator's estimate of
368368 the current and projected amount of groundwater produced under
369369 exemptions granted by district rules and Section 36.117;
370370 (2) [(3)] the amount of groundwater authorized under
371371 permits previously issued by the district;
372372 (3) [(4)] a reasonable estimate of the amount of
373373 groundwater that is actually produced under permits issued by the
374374 district; and
375375 (4) [(5)] yearly precipitation and production
376376 patterns.
377377 SECTION 14. Section 36.116(a), Water Code, is amended to
378378 read as follows:
379379 (a) In order to minimize as far as practicable the drawdown
380380 of the water table or the reduction of artesian pressure, to control
381381 subsidence, to prevent interference between wells, to prevent
382382 degradation of water quality, or to prevent waste, a district by
383383 rule may regulate:
384384 (1) the spacing of water wells by:
385385 (A) requiring all water wells to be spaced a
386386 certain distance from property lines or adjoining wells; or
387387 (B) requiring wells with a certain production
388388 capacity, pump size, or other characteristic related to the
389389 construction or operation of and production from a well to be spaced
390390 a certain distance from property lines or adjoining wells; [or
391391 [(C) imposing spacing requirements adopted by
392392 the board;] and
393393 (2) the production of groundwater by:
394394 (A) setting production limits on wells;
395395 (B) limiting the amount of water produced based
396396 on acreage or tract size;
397397 (C) limiting the amount of water that may be
398398 produced from a defined number of acres assigned to an authorized
399399 well site;
400400 (D) limiting the maximum amount of water that may
401401 be produced on the basis of acre-feet per acre or gallons per minute
402402 per well site per acre;
403403 (E) managed depletion; or
404404 (F) any combination of the methods listed above
405405 in Paragraphs (A) through (E).
406406 SECTION 15. Sections 36.122(h) and (q), Water Code, are
407407 amended to read as follows:
408408 (h) In addition to conditions provided by Section 36.1131,
409409 the permit shall specify:
410410 (1) the maximum amount of water that may be
411411 transferred out of the district; and
412412 (2) the period for which the water may be transferred.
413413 (q) In applying this section, a district must be fair,
414414 impartial, and nondiscriminatory between the transfer of
415415 groundwater outside of the district's boundaries and the use of
416416 groundwater in the district.
417417 SECTION 16. Section 36.201(b), Water Code, is amended to
418418 read as follows:
419419 (b) The board may annually levy taxes to pay the maintenance
420420 and operating expenses of the district at a rate not to exceed 37.5
421421 [50] cents on each $100 of assessed valuation.
422422 SECTION 17. Section 36.205(f), Water Code, is amended to
423423 read as follows:
424424 (f) A district[, including a district described under
425425 Subsection (d),] may assess a production fee under Subsection (c)
426426 and an export fee under Subsection (g), if applicable, for any water
427427 produced under an exemption under Section 36.117 if that water is
428428 subsequently sold to another person.
429429 SECTION 18. Section 36.207, Water Code, is amended to read
430430 as follows:
431431 Sec. 36.207. USE OF FEES. (a) A district may use funds
432432 obtained from administrative or[,] production[, or export] fees
433433 collected under a special law governing the district or this
434434 chapter for any purpose consistent with the district's approved
435435 management plan, including, without limitation, making grants,
436436 loans, or contractual payments to achieve, facilitate, or expedite
437437 reductions in groundwater pumping or the development or
438438 distribution of alternative water supplies.
439439 (b) A district may use funds obtained from export fees
440440 collected under a special law governing the district or this
441441 chapter only to enhance:
442442 (1) monitoring, modeling, and data collection
443443 regarding aquifers managed by the district; and
444444 (2) research on the advancement of the scientific
445445 understanding of a district's groundwater resources.
446446 SECTION 19. Sections 36.4051(a) and (d), Water Code, are
447447 amended to read as follows:
448448 (a) The board may take action on any uncontested application
449449 at a properly noticed public meeting held at any time after the
450450 public hearing at which the application is scheduled to be heard.
451451 The board may issue a written order to:
452452 (1) grant the application;
453453 (2) grant the application with special conditions
454454 provided that the applicant agrees to the conditions before the
455455 issuance of the order; or
456456 (3) deny the application.
457457 (d) An applicant may, not later than the 20th day after the
458458 date the board issues an order granting or denying the application,
459459 demand a contested case hearing [if the order:
460460 [(1) includes special conditions that were not part of
461461 the application as finally submitted; or
462462 [(2) grants a maximum amount of groundwater production
463463 that is less than the amount requested in the application].
464464 SECTION 20. Section 8824.101, Special District Local Laws
465465 Code, is amended to read as follows:
466466 Sec. 8824.101. RESTRICTIONS ON GENERAL POWERS. Section
467467 [Sections] 36.103 [and 36.104], Water Code, does [do] not apply to
468468 the district.
469469 SECTION 21. Section 8833.102, Special District Local Laws
470470 Code, is amended to read as follows:
471471 Sec. 8833.102. LIMITATIONS ON DISTRICT POWERS. The
472472 district may not impose:
473473 (1) a tax; [or]
474474 (2) a fee on a well used exclusively for domestic or
475475 livestock watering purposes; or
476476 (3) production fees for an annual period greater than
477477 $1 per acre-foot for water used for agricultural use or 17 cents per
478478 thousand gallons for water used for any other purpose.
479479 SECTION 22. Section 11, Chapter 1321, Acts of the 77th
480480 Legislature, Regular Session, 2001, is amended by adding Subsection
481481 (b-1) to read as follows:
482482 (b-1) The district may not assess production fees for an
483483 annual period greater than $1 per acre-foot for water used for
484484 agricultural use or 17 cents per thousand gallons for water used for
485485 any other purpose.
486486 SECTION 23. The following provisions of the Water Code are
487487 repealed:
488488 (1) Section 36.001(31), as added by Chapter 415 (H.B.
489489 2767), Acts of the 84th Legislature, Regular Session, 2015;
490490 (2) Section 36.104;
491491 (3) Section 36.1072(g);
492492 (4) Section 36.108(d-5);
493493 (5) Sections 36.122(m) and (n); and
494494 (6) Section 36.205(d).
495495 SECTION 24. Not later than September 1, 2019, a groundwater
496496 conservation district in a management area under Section 36.108,
497497 Water Code, as amended by this Act, shall meet and delineate the
498498 initial boundaries of each subdivision of a groundwater reservoir
499499 in the management area as required by Section 36.108(c-1), Water
500500 Code, as added by this Act.
501501 SECTION 25. As soon as practicable after the effective date
502502 of this Act, each groundwater conservation district shall adopt
503503 rules as necessary to implement the changes in law made by this Act.
504504 SECTION 26. The changes in law made by this Act apply only
505505 to an application for a permit or a permit amendment that is
506506 received by a groundwater conservation district on or after the
507507 effective date of this Act. An application for a permit or permit
508508 amendment that is received before the effective date of this Act is
509509 governed by the law in effect on the date the application is
510510 received, and that law is continued in effect for that purpose.
511511 SECTION 27. The changes in law made by this Act apply only
512512 to a suit involving a groundwater conservation district that is
513513 filed on or after the effective date of this Act. A suit filed
514514 before the effective date of this Act is subject to the law in
515515 effect on the date the suit is filed, and that law is continued in
516516 effect for that purpose.
517517 SECTION 28. This Act takes effect September 1, 2017.
518518 * * * * *