By: Perry S.B. No. 1392
(In the Senate - Filed March 7, 2017; March 16, 2017, read
first time and referred to Committee on Agriculture, Water & Rural
Affairs; May 10, 2017, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 2;
May 10, 2017, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 1392 By: Hinojosa
A BILL TO BE ENTITLED
AN ACT
relating to groundwater conservation districts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. 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 2. Section 36.0015(b), Water Code, is amended to
read as follows:
(b) In order to provide for the conservation, preservation,
protection, recharging, and prevention of waste of groundwater, and
of groundwater reservoirs or their subdivisions, and to control
subsidence caused by withdrawal of water from those groundwater
reservoirs or their subdivisions, consistent with the objectives of
Section 59, Article XVI, Texas Constitution, groundwater
conservation districts may be created as provided by this chapter.
Groundwater conservation districts created as provided by this
chapter are the state's preferred method of groundwater management
in order to:
(1) protect property rights;
(2) [,] balance the conservation and development of
groundwater to meet the needs of this state;
(3) [, and] use the best available science; and
(4) treat each groundwater owner fairly [in the
conservation and development of groundwater through rules
developed, adopted, and promulgated by a district in accordance
with the provisions of this chapter].
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 36.062, 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 6. 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 7. 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 8. Section 36.108, Water Code, is amended by
amending Subsections (c), (d), (d-3), and (d-4) and adding
Subsections (c-1) and (c-2) to read as follows:
(c) The district representatives shall meet at least
annually to conduct joint planning with the other districts in the
management area and to review the management plans, the
accomplishments of the management area, and proposals to adopt new
or amend existing desired future conditions. In reviewing the
management plans, the districts shall consider:
(1) the goals of each management plan and its impact on
planning throughout the management area;
(2) the effectiveness of the measures established by
each district's management plan for conserving and protecting
groundwater and preventing waste, and the effectiveness of these
measures in the management area generally;
(3) any other matters that the boards consider
relevant to the protection and conservation of groundwater and the
prevention of waste in the management area; and
(4) the degree to which [each management plan
achieves] the desired future conditions in the management area are
being achieved [established during the joint planning process].
(c-1) Districts in a management area jointly shall
delineate the boundaries of each subdivision of a groundwater
reservoir in the management area, using the best available science.
On request by a district, the development board shall provide
technical assistance with the development of the initial boundaries
and any subsequent updates to the boundaries of a subdivision. The
delineated boundaries of each subdivision must be updated as
necessary to accurately reflect the actual boundaries.
(c-2) Under Subsection (c-1), a district:
(1) may take into consideration conditions that differ
substantially from one geographic area to another in delineating
boundaries of a subdivision of a groundwater reservoir;
(2) shall report to the development board the surface
level boundaries of a subdivision of a groundwater reservoir using
metes and bounds; and
(3) shall maintain in each office of the districts in
the management area copies of the delineations of the subdivisions
of groundwater reservoirs and the report made under Subdivision
(2).
(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.
(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 approved by
[adopted as] a resolution adopted by a two-thirds vote of all the
district representatives not later than the 90th day after the date
the public comment period expires. Not later than the 180th day
after the expiration of the public comment period, the [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 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.
(d-4) Not later than the 180th day after the date the public
comment period expires, the district shall submit the explanatory
report under Subsection (d-3) to the development board and [As soon
as possible after a district receives the desired future conditions
resolution and explanatory report under Subsection (d-3), the
district shall] adopt the desired future conditions in the
resolution required by Subsection (d-3) and the explanatory report
that apply to the district.
SECTION 9. Section 36.1083(e), Water Code, is amended to
read as follows:
(e) Not later than the 10th day after receiving a petition
described by Subsection (b), the district shall submit a copy of the
petition to the development board and to each district in the
management area. On receipt of the petition, the development board
shall conduct:
(1) an administrative review to determine whether the
desired future condition established by the district meets the
criteria in Section 36.108(d); and
(2) a study containing scientific and technical
analysis of the desired future condition, including consideration
of:
(A) the hydrogeology of the aquifer;
(B) the explanatory report provided to the
development board under Section 36.108(d-3);
(C) the factors described under Section
36.108(d); and
(D) any relevant:
(i) groundwater availability models;
(ii) published studies;
(iii) estimates of total recoverable
storage capacity;
(iv) average annual amounts of recharge,
inflows, and discharge of groundwater; or
(v) information provided in the petition or
available to the development board.
SECTION 10. Section 36.113(d), Water Code, is amended to
read as follows:
(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) for each water well, the proposed spacing of the
wells conforms to the district's rules regulating the spacing of
wells under Section 36.116;
(3) the proposed use of water unreasonably affects
existing groundwater and surface water resources or existing permit
holders;
(4) the proposed annual production conforms to the
district's rules regulating the groundwater production of wells
under Section 36.116;
(5) [(3)] the proposed use of water is dedicated to
any beneficial use;
(6) [(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;
(7) [(6)] the applicant has agreed to avoid waste and
achieve water conservation; and
(8) [(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.
SECTION 11. Section 36.1131(b), Water Code, is amended to
read as follows:
(b) The permit may include:
(1) the name and address of the person to whom the
permit is issued;
(2) the location of the well;
(3) the date the permit is to expire if no well is
drilled;
(4) a statement of the purpose for which the well is to
be used;
(5) a requirement that the water withdrawn under the
permit be put to beneficial use at all times;
(6) the location of the use of the water from the well;
(7) a water well closure plan or a declaration that the
applicant will comply with well plugging guidelines and report
closure to the commission;
(8) the conditions and restrictions[, if any,] placed
by district rules adopted under Section 36.116 on the rate and
amount of withdrawal;
(9) any conservation-oriented methods of drilling and
operating prescribed by the district;
(10) a drought contingency plan prescribed by the
district; and
(11) other terms and conditions as provided by Section
36.113.
SECTION 12. The heading to Section 36.1132, Water Code, is
amended to read as follows:
Sec. 36.1132. DISTRICT MANAGEMENT TO ACHIEVE DESIRED FUTURE
CONDITIONS [PERMITS BASED ON MODELED AVAILABLE GROUNDWATER].
SECTION 13. Section 36.1132, Water Code, is amended by
amending Subsection (b) and adding Subsections (b-1) and (b-2) to
read as follows:
(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) preparing a report on the degree to which the
desired future conditions are being achieved in the one-year period
after the collection of monitoring data from an aquifer and the
relevant desired future conditions; and
(3) participating in a joint groundwater management
hearing if the report prepared under Subdivision (2) indicates the
desired future conditions are not being achieved.
(b-1) Not later than the second anniversary of the date of
the final adoption of a desired future condition under Section
36.108, and every five years thereafter, district representatives
in a management area shall develop a report as described by this
subsection. The districts shall maintain a copy of the report at
each district office. The report must:
(1) identify and compare the rules adopted under
Section 36.116 by each district in the management area; and
(2) identify differences in rules based on factors
considered in the establishment of desired future conditions
provided by Section 36.108 and the justification for those
differences in the rules.
(b-2) The joint groundwater management hearing held under
Subsection (b)(3) must include a public comment period on the
desired future conditions. During the joint groundwater management
hearing, the districts shall consider:
(1) [(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;
(2) [(3)] the amount of groundwater authorized under
permits previously issued by the district;
(3) [(4)] a reasonable estimate of the amount of
groundwater that is actually produced under permits issued by the
district; and
(4) [(5)] yearly precipitation and production
patterns.
SECTION 14. Section 36.116(a), Water Code, is amended to
read as follows:
(a) In order to minimize as far as practicable the drawdown
of the water table or the reduction of artesian pressure, to control
subsidence, to prevent interference between wells, to prevent
degradation of water quality, or to prevent waste, a district by
rule may regulate:
(1) the spacing of water wells by:
(A) requiring all water wells to be spaced a
certain distance from property lines or adjoining wells; or
(B) requiring wells with a certain production
capacity, pump size, or other characteristic related to the
construction or operation of and production from a well to be spaced
a certain distance from property lines or adjoining wells; [or
[(C) imposing spacing requirements adopted by
the board;] and
(2) the production of groundwater by:
(A) setting production limits on wells;
(B) limiting the amount of water produced based
on acreage or tract size;
(C) limiting the amount of water that may be
produced from a defined number of acres assigned to an authorized
well site;
(D) limiting the maximum amount of water that may
be produced on the basis of acre-feet per acre or gallons per minute
per well site per acre;
(E) managed depletion; or
(F) any combination of the methods listed above
in Paragraphs (A) through (E).
SECTION 15. Sections 36.122(h) and (q), Water Code, are
amended to read as follows:
(h) In addition to conditions provided by Section 36.1131,
the permit shall specify:
(1) the maximum amount of water that may be
transferred out of the district; and
(2) the period for which the water may be transferred.
(q) In applying this section, a district must be fair,
impartial, and nondiscriminatory between the transfer of
groundwater outside of the district's boundaries and the use of
groundwater 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 36.205(f), Water Code, is amended to
read as follows:
(f) A district[, including a district described under
Subsection (d),] may assess a production fee under Subsection (c)
and an export fee under Subsection (g), if applicable, for any water
produced under an exemption under Section 36.117 if that water is
subsequently sold to another person.
SECTION 18. Section 36.207, Water Code, is amended to read
as follows:
Sec. 36.207. USE OF FEES. (a) A district may use funds
obtained from administrative or[,] production[, or export] fees
collected under a special law governing the district or this
chapter for any purpose consistent with the district's approved
management plan, including, without limitation, making grants,
loans, or contractual payments to achieve, facilitate, or expedite
reductions in groundwater pumping or the development or
distribution of alternative water supplies.
(b) A district may use funds obtained from export fees
collected under a special law governing the district or this
chapter only to enhance:
(1) monitoring, modeling, and data collection
regarding aquifers managed by the district; and
(2) research on the advancement of the scientific
understanding of a district's groundwater resources.
SECTION 19. 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 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(m) and (n); and
(6) Section 36.205(d).
SECTION 24. Not later than September 1, 2019, a groundwater
conservation district in a management area under Section 36.108,
Water Code, as amended by this Act, shall meet and delineate the
initial boundaries of each subdivision of a groundwater reservoir
in the management area as required by Section 36.108(c-1), Water
Code, as added by this Act.
SECTION 25. As soon as practicable after the effective date
of this Act, each groundwater conservation district shall adopt
rules as necessary to implement the changes in law made by this Act.
SECTION 26. 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 27. The changes in law made by this Act apply only
to a suit involving a groundwater conservation district that is
filed on or after the effective date of this Act. A suit filed
before the effective date of this Act is subject to the law in
effect on the date the suit is filed, and that law is continued in
effect for that purpose.
SECTION 28. This Act takes effect September 1, 2017.
* * * * *