86R11974 SLB-F
By: Wilson H.B. No. 3998
A BILL TO BE ENTITLED
AN ACT
relating to the transfer of the administration of surface water
rights permitting from the Texas Commission on Environmental
Quality to the Texas Water Development Board and the regulation of
groundwater; authorizing fees; authorizing civil penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 111.002, Natural Resources Code, is
amended to read as follows:
Sec. 111.002. COMMON CARRIERS UNDER CHAPTER. A person is a
common carrier subject to the provisions of this chapter if it:
(1) owns, operates, or manages a pipeline or any part
of a pipeline in the State of Texas for the transportation of crude
petroleum or nonpotable water to or for the public for hire, or
engages in the business of transporting crude petroleum or
nonpotable water to another person by pipeline;
(2) owns, operates, or manages a pipeline or any part
of a pipeline in the State of Texas for the transportation of crude
petroleum to or for the public for hire and the pipeline is
constructed or maintained on, over, or under a public road or
highway, or is an entity in favor of whom the right of eminent
domain exists;
(3) owns, operates, or manages a pipeline or any part
of a pipeline in the State of Texas for the transportation of crude
petroleum to or for the public for hire which is or may be
constructed, operated, or maintained across, on, along, over, or
under the right-of-way of a railroad, corporation, or other common
carrier required by law to transport crude petroleum as a common
carrier;
(4) under lease, contract of purchase, agreement to
buy or sell, or other agreement or arrangement of any kind, owns,
operates, manages, or participates in ownership, operation, or
management of a pipeline or part of a pipeline in the State of Texas
for the transportation of crude petroleum, bought of others, from
an oil field or place of production within this state to any
distributing, refining, or marketing center or reshipping point
within this state;
(5) owns, operates, or manages, wholly or partially,
pipelines for the transportation for hire of coal in whatever form
or of any mixture of substances including coal in whatever form;
(6) owns, operates, or manages, wholly or partially,
pipelines for the transportation of carbon dioxide or hydrogen in
whatever form to or for the public for hire, but only if such person
files with the commission a written acceptance of the provisions of
this chapter expressly agreeing that, in consideration of the
rights acquired, it becomes a common carrier subject to the duties
and obligations conferred or imposed by this chapter; or
(7) owns, operates, or manages a pipeline or any part
of a pipeline in the State of Texas for the transportation of
feedstock for carbon gasification, the products of carbon
gasification, or the derivative products of carbon gasification, in
whatever form, to or for the public for hire, but only if the person
files with the commission a written acceptance of the provisions of
this chapter expressly agreeing that, in consideration of the
rights acquired, it becomes a common carrier subject to the duties
and obligations conferred or imposed by this chapter.
SECTION 2. Section 5.012, Water Code, is amended to read as
follows:
Sec. 5.012. DECLARATION OF POLICY. (a) The commission is
the agency of the state given primary responsibility for
implementing the constitution and laws of this state relating to
the conservation of natural resources and the protection of the
environment.
(b) The board is the agency of the state given primary
responsibility for implementing the constitution and laws of this
state relating to the conservation of water resources.
SECTION 3. Section 5.013(a), Water Code, is amended to read
as follows:
(a) The commission has general jurisdiction over:
(1) [water and water rights including the issuance of
water rights permits, water rights adjudication, cancellation of
water rights, and enforcement of water rights;
[(2)] continuing supervision over districts created
under Article III, Sections 52(b)(1) and (2), and Article XVI,
Section 59, of the Texas Constitution;
(2) [(3)] the state's water quality program including
issuance of permits, enforcement of water quality rules, standards,
orders, and permits, and water quality planning;
(3) [(4)] the determination of the feasibility of
certain federal projects;
(4) [(5)] the adoption and enforcement of rules and
performance of other acts relating to the safe construction,
maintenance, and removal of dams;
(5) [(6)] conduct of the state's hazardous spill
prevention and control program;
(6) [(7)] the administration of the state's program
relating to inactive hazardous substance, pollutant, and
contaminant disposal facilities;
(7) [(8)] the administration of a portion of the
state's injection well program;
(8) [(9)] the administration of the state's programs
involving underground water and water wells and drilled and mined
shafts;
(9) [(10)] the state's responsibilities relating to
regional waste disposal;
(10) [(11)] the responsibilities assigned to the
commission by Chapters 361, 363, 382, 401, 505, 506, and 507, Health
and Safety Code; and
(11) [(12)] any other areas assigned to the commission
by this code and other laws of this state.
SECTION 4. Section 5.501(b), Water Code, is amended to read
as follows:
(b) The commission may issue an emergency order under this
subchapter after providing the notice and opportunity for hearing
that the commission considers practicable under the circumstances
or without notice or hearing. Notice [Except as provided by Section
5.506, notice] must be given not later than the 10th day before the
date set for a hearing if the commission requires notice and hearing
before issuing the order. The commission shall give notice not
later than the 20th day before the date set for a hearing on a
temporary order.
SECTION 5. Section 5.701(q), Water Code, is amended to read
as follows:
(q) Notwithstanding any other law, fees collected for
deposit to the water resource management account under the
following statutes may be appropriated and used to protect water
resources in this state, including assessment of water quality,
reasonably related to the activities of any of the persons required
to pay a fee under:
(1) Subsection [Subsections] (b) [and (c)], to the
extent those fees are collected in connection with [water use or]
water quality permits;
(2) [Subsections (h)-(l);
[(3) Section 11.138(g);
[(4) Section 11.145;
[(5)] Section 26.0135(h);
(3) [(6)] Sections 26.0291, 26.044, and 26.0461; or
(4) [(7)] Sections 341.041, 366.058, 366.059,
371.024, 371.026, and 371.062, Health and Safety Code.
SECTION 6. Section 6.012(a), Water Code, is amended to read
as follows:
(a) The board has general jurisdiction over:
(1) the development and implementation of a statewide
water plan;
(2) the administration of the state's various water
assistance and financing programs including those created by the
constitution;
(3) the administration of the National Flood Insurance
Program; [and]
(4) water and water rights, including the issuance of
water rights permits, water rights adjudication, cancellation of
water rights, and enforcement of water rights; and
(5) other areas specifically assigned to the board by
this code or other law.
SECTION 7. Section 7.051(b), Water Code, is amended to read
as follows:
(b) This subchapter does not apply to violations of Chapter
[11,] 12, 13, 16, or 36 of this code, or Chapter 341, Health and
Safety Code.
SECTION 8. Section 7.102, Water Code, is amended to read as
follows:
Sec. 7.102. MAXIMUM PENALTY. A person who causes, suffers,
allows, or permits a violation of a statute, rule, order, or permit
relating to Chapter 37 of this code, Chapter 366, 371, or 372,
Health and Safety Code, Subchapter G, Chapter 382, Health and
Safety Code, or Chapter 1903, Occupations Code, shall be assessed
for each violation a civil penalty not less than $50 nor greater
than $5,000 for each day of each violation as the court or jury
considers proper. A person who causes, suffers, allows, or permits
a violation of a statute, rule, order, or permit relating to any
other matter within the commission's jurisdiction to enforce, other
than violations of Chapter [11,] 12, 13, 16, or 36 of this code, or
Chapter 341, Health and Safety Code, shall be assessed for each
violation a civil penalty not less than $50 nor greater than $25,000
for each day of each violation as the court or jury considers
proper. Each day of a continuing violation is a separate violation.
SECTION 9. Section 11.002, Water Code, is amended by adding
Subdivision (2-a) and amending Subdivisions (6), (17), and (20) to
read as follows:
(2-a) "Executive administrator" means the executive
administrator of the Texas Water Development Board.
(6) "Appropriator" means a person who has made
beneficial use of any water in a lawful manner under the provisions
of any act of the legislature before the enactment of Chapter 171,
General Laws, Acts of the 33rd Legislature, 1913, as amended, and
who has filed with the State Board of Water Engineers a record of
the [his] appropriation as required by the 1913 Act, as amended, or
a person who makes or has made beneficial use of any water within
the limitations of a permit lawfully issued by the board
[commission] or one of its predecessors.
(17) "Environmental flow standards" means those
requirements adopted by the board [commission] under Section
11.1471.
(20) "Best management practices" means those
voluntary efficiency measures developed by the [commission and the]
board that save a quantifiable amount of water, either directly or
indirectly, and that can be implemented within a specified time
frame.
SECTION 10. Section 11.004, Water Code, is amended to read
as follows:
Sec. 11.004. BOARD [COMMISSION] TO RECEIVE CERTIFIED COPIES
OF JUDGMENTS, ETC. When any court of record renders a judgment,
decree, or order affecting the title to any water right, claim,
appropriation, or irrigation facility or affecting any matter over
which the board [commission] is given supervision by law, the clerk
of the court shall immediately transmit to the board [commission] a
certified copy of the judgment, decree, or order.
SECTION 11. Sections 11.023(a) and (e), Water Code, are
amended to read as follows:
(a) To the extent that state water has not been set aside by
the board [commission] under Section 11.1471(a)(2) to meet
downstream instream flow needs or freshwater inflow needs, state
water may be appropriated, stored, or diverted for:
(1) domestic and municipal uses, including water for
sustaining human life and the life of domestic animals;
(2) agricultural uses and industrial uses, meaning
processes designed to convert materials of a lower order of value
into forms having greater usability and commercial value, including
the development of power by means other than hydroelectric;
(3) mining and recovery of minerals;
(4) hydroelectric power;
(5) navigation;
(6) recreation and pleasure;
(7) public parks; and
(8) game preserves.
(e) The amount of water appropriated for each purpose
mentioned in this section shall be specifically appropriated for
that purpose, subject to the preferences prescribed in Section
11.024 [of this code]. The board [commission] may authorize
appropriation of a single amount or volume of water for more than
one purpose of use. In the event that a single amount or volume of
water is appropriated for more than one purpose of use, the total
amount of water actually diverted for all of the authorized
purposes may not exceed the total amount of water appropriated.
SECTION 12. Sections 11.0235(c) and (d-3), Water Code, are
amended to read as follows:
(c) The legislature has expressly required the board
[commission] while balancing all other public interests to consider
and, to the extent practicable, provide for the freshwater inflows
and instream flows necessary to maintain the viability of the
state's streams, rivers, and bay and estuary systems in the board's
[commission's] regular granting of permits for the use of state
waters. As an essential part of the state's environmental flows
policy, all permit conditions relating to freshwater inflows to
affected bays and estuaries and instream flow needs must be subject
to temporary suspension if necessary for water to be applied to
essential beneficial uses during emergencies.
(d-3) The legislature finds that:
(1) in those basins in which water is available for
appropriation, the board [commission] should establish an
environmental set-aside below which water should not be available
for appropriation; and
(2) in those basins in which the unappropriated water
that will be set aside for instream flow and freshwater inflow
protection is not sufficient to fully satisfy the environmental
flow standards established by the board [commission], a variety of
market approaches, both public and private, for filling the gap
must be explored and pursued.
SECTION 13. Sections 11.0236(h) and (m), Water Code, are
amended to read as follows:
(h) The board [commission] shall provide staff support for
the advisory group.
(m) The advisory group is abolished on the date that the
board [commission] has adopted environmental flow standards under
Section 11.1471 for all of the river basin and bay systems in this
state.
SECTION 14. Sections 11.02361(e) and (f), Water Code, are
amended to read as follows:
(e) The science advisory committee shall:
(1) serve as an objective scientific body to advise
and make recommendations to the advisory group on issues relating
to the science of environmental flow protection; and
(2) develop recommendations to help provide overall
direction, coordination, and consistency relating to:
(A) environmental flow methodologies for bay and
estuary studies and instream flow studies;
(B) environmental flow programs at the board and
[commission,] the Parks and Wildlife Department[, and the board];
and
(C) the work of the basin and bay expert science
teams described in Section 11.02362.
(f) To assist the advisory group to assess the extent to
which the recommendations of the science advisory committee are
considered and implemented, the board and [commission,] the Parks
and Wildlife Department[, and the board] shall provide written
reports to the advisory group, at intervals determined by the
advisory group, that describe:
(1) the actions taken by each agency in response to
each recommendation; and
(2) for each recommendation not implemented, the
reason it was not implemented.
SECTION 15. Section 11.0237, Water Code, is amended to read
as follows:
Sec. 11.0237. WATER RIGHTS FOR INSTREAM FLOWS DEDICATED TO
ENVIRONMENTAL NEEDS OR BAY AND ESTUARY INFLOWS. (a) The board
[commission] may not issue a new permit for instream flows
dedicated to environmental needs or bay and estuary inflows. The
board [commission] may approve an application to amend an existing
permit or certificate of adjudication to change the use to or add a
use for instream flows dedicated to environmental needs or bay and
estuary inflows.
(b) This section does not alter the board's [commission's]
obligations under Section 11.042(a-1), (b), or (c), 11.046(b),
11.085(k)(1) [11.085(k)(2)(F)], 11.134(b)(3)(D), 11.147, 11.1471,
11.1491, 11.150, 11.152, 16.058, 16.059, or 18.004.
SECTION 16. Section 11.026, Water Code, is amended to read
as follows:
Sec. 11.026. PERFECTION OF AN APPROPRIATION. No right to
appropriate water is perfected unless the water has been
beneficially used for a purpose stated in the original declaration
of intention to appropriate water or stated in a permit issued by
the board [commission] or one of its predecessors.
SECTION 17. Sections 11.031(a), (b), (c), (d), (e), and
(g), Water Code, are amended to read as follows:
(a) Not later than March 1 of each year, each person who has
a water right issued by the board [commission] or who impounded,
diverted, or otherwise used state water during the preceding
calendar year shall submit a written report to the board
[commission] on a form prescribed by the board [commission]. The
report shall contain all information required by the board
[commission] to aid in administering the water law and in making
inventory of the state's water resources. However, with the
exception of those persons who hold water rights, no report is
required of persons who take water solely for domestic or livestock
purposes.
(b) A person who fails to file an annual report with the
board [commission] as required by Subsection (a) or fails to timely
comply with a request by the board [commission] to make information
available under Subsection (d) is liable for a penalty for each day
the person fails to file the statement or comply with the request
after the applicable deadline in an amount not to exceed:
(1) $100 per day if the person is the holder of a water
right authorizing the appropriation of 5,000 acre-feet or less per
year; or
(2) $500 per day if the person is the holder of a water
right authorizing the appropriation of more than 5,000 acre-feet
per year.
(c) The board [commission] may waive the requirements of
Subsection (a) [of this section] for a person who has a water right
or uses state water in an area of the state where watermaster
operations are established.
(d) Each person who has a water right issued by the board
[commission] or who impounds, diverts, or otherwise uses state
water shall maintain water use information required under
Subsection (a) on a monthly basis during the months a water rights
holder uses permitted water. The person shall make the information
available to the board [commission] on the board's [commission's]
request. The executive administrator [director] shall establish a
reasonable deadline by which a person must make available
information requested by the board [commission] under this
subsection.
(e) Except as provided by Subsection (a), the board
[commission] may request information maintained under Subsection
(d) only during a drought or other emergency shortage of water or in
response to a complaint.
(g) The board [commission] shall establish a process by
which a report required under Subsection (a) may be submitted
electronically through the Internet.
SECTION 18. Section 11.034, Water Code, is amended to read
as follows:
Sec. 11.034. RESERVOIR SITE: LAND AND RIGHTS-OF-WAY. An
appropriator who is authorized to construct a dam or reservoir is
granted the right-of-way, not to exceed 100 feet wide, and the
necessary area for the site, over any public school land,
university land, or asylum land of this state and the use of the
rock, gravel, and timber on the site and right-of-way for
construction purposes, after paying compensation as determined by
the board [commission]. An appropriator may acquire the reservoir
site and rights-of-way over private land by contract.
SECTION 19. Sections 11.035(c), (d), (e), (f), and (g),
Water Code, are amended to read as follows:
(c) If the party exercising the power granted by this
section is not a corporation, district, city, or town, the party
[he] shall apply to the board [commission] for the condemnation.
(d) The executive administrator [director] shall have the
proposed condemnation investigated. After the investigation, the
board [commission] may give notice to the party owning the land
proposed to be condemned and hold a hearing on the proposed
condemnation.
(e) If after a hearing the board [commission] determines
that the condemnation is necessary, the executive administrator
[director] may institute condemnation proceedings in the name of
the State of Texas for the use and benefit of the party who applied
for the condemnation and all others similarly situated.
(f) The parties at whose instance a condemnation suit is
instituted shall pay the costs of the suit and condemnation in
proportion to the benefits received by each party as fixed by the
board [commission]. Before using any of the condemned rights or
property, a party receiving the rights or property shall pay the
amount of costs fixed by the board [commission].
(g) If, after the costs of the condemnation proceedings have
been paid, a party seeks to take the benefits of the condemnation
proceedings, the party [he] shall apply to the board [commission]
for the benefits. The board [commission] may grant the application
and fix the fees and charges to be paid by the applicant.
SECTION 20. Section 11.036(d), Water Code, is amended to
read as follows:
(d) If any person uses the stored or conserved water without
first entering into a contract with the party that conserved or
stored it, the user shall pay for the use at a rate determined by the
board [commission] to be just and reasonable, subject to court
review as in other cases.
SECTION 21. Section 11.041, Water Code, is amended to read
as follows:
Sec. 11.041. DENIAL OF WATER: COMPLAINT. (a) Any person
entitled to receive or use water from any canal, ditch, flume,
lateral, dam, reservoir, or lake or from any conserved or stored
supply may present to the board [commission] a written petition
showing:
(1) that the person [he] is entitled to receive or use
the water;
(2) that the person [he] is willing and able to pay a
just and reasonable price for the water;
(3) that the party owning or controlling the water
supply has water not contracted to others and available for the
petitioner's use; and
(4) that the party owning or controlling the water
supply fails or refuses to supply the available water to the
petitioner, or that the price or rental demanded for the available
water is not reasonable and just or is discriminatory.
(b) If the petition is accompanied by a deposit of $25, the
executive administrator [director] shall have a preliminary
investigation of the complaint made and determine whether or not
there are probable grounds for the complaint.
(c) If, after preliminary investigation, the executive
administrator [director] determines that probable grounds exist
for the complaint, the board [commission] shall enter an order
setting a time and place for a hearing on the petition.
(d) The board [commission] may require the complainant to
make an additional deposit or execute a bond satisfactory to the
board [commission] in an amount fixed by the board [commission]
conditioned on the payment of all costs of the proceeding.
(e) At least 20 days before the date set for the hearing, the
board [commission] shall transmit by registered mail a certified
copy of the petition and a certified copy of the hearing order to
the person against whom the complaint is made.
(f) The board [commission] shall hold a hearing on the
complaint at the time and place stated in the order. It may hear
evidence orally or by affidavit in support of or against the
complaint, and it may hear arguments. The utility commission may
participate in the hearing if necessary to present evidence on the
price or rental demanded for the available water. On completion of
the hearing, the board [commission] shall render a written
decision.
(g) If, after the preliminary investigation, the executive
administrator [director] determines that no probable grounds exist
for the complaint, the executive administrator [director] shall
dismiss the complaint. The board [commission] may either return
the deposit or pay it into the State Treasury.
SECTION 22. Section 11.042, Water Code, is amended by
amending Subsections (a), (a-1), (b), and (c) and adding Subsection
(e) to read as follows:
(a) Under rules prescribed by the board [commission], a
person, association of persons, corporation, water control and
improvement district, water improvement district, or irrigation
district supplying stored or conserved water under contract as
provided in this chapter may use the bank and bed of any flowing
natural stream in the state to convey the water from the place of
storage to the place of use or to the diversion point of the
appropriator.
(a-1) With prior authorization granted under rules
prescribed by the board [commission], a person, association of
persons, corporation, water control and improvement district,
water improvement district, or irrigation district supplying water
imported from a source located wholly outside the boundaries of
this state, except water imported from a source located in the
United Mexican States, may use the bed and banks of any flowing
natural stream in the state to convey water for use in this state.
The authorization must:
(1) allow for the diversion of only the amount of water
put into a watercourse or stream, less carriage losses; and
(2) include special conditions adequate to prevent a
significant impact to the quality of water in this state.
(b) A person who wishes to discharge and then subsequently
divert and reuse the person's existing return flows derived from
privately owned groundwater must obtain prior authorization from
the board [commission] for the diversion and the reuse of these
return flows. The authorization may allow for the diversion and
reuse by the discharger of existing return flows, less carriage
losses, and shall be subject to special conditions if necessary to
protect an existing water right that was granted based on the use or
availability of these return flows. Special conditions may also be
provided to help maintain instream uses and freshwater inflows to
bays and estuaries. A person wishing to divert and reuse future
increases of return flows derived from privately owned groundwater
must obtain authorization to reuse increases in return flows before
the increase.
(c) Except as otherwise provided in Subsection (a) [of this
section], a person who wishes to convey and subsequently divert
water in a watercourse or stream must obtain the prior approval of
the board [commission] through a bed and banks authorization. The
authorization shall allow to be diverted only the amount of water
put into a watercourse or stream, less carriage losses and subject
to any special conditions that may address the impact of the
discharge, conveyance, and diversion on existing permits,
certified filings, or certificates of adjudication, instream uses,
and freshwater inflows to bays and estuaries. Water discharged
into a watercourse or stream under this chapter shall not cause a
degradation of water quality to the extent that the stream
segment's classification would be lowered. [Authorizations under
this section and water quality authorizations may be approved in a
consolidated permit proceeding.]
(e) The board may consult with the commission in determining
special conditions for an authorization issued under this section.
SECTION 23. Section 11.046(b), Water Code, is amended to
read as follows:
(b) In granting an application for a water right, the board
[commission] may include conditions in the water right providing
for the return of surplus water, in a specific amount or percentage
of water diverted, and the return point on a watercourse or stream
as necessary to protect senior downstream permits, certified
filings, or certificates of adjudication or to provide flows for
instream uses or bays and estuaries.
SECTION 24. Section 11.053, Water Code, is amended to read
as follows:
Sec. 11.053. EMERGENCY ORDER CONCERNING WATER RIGHTS. (a)
During a period of drought or other emergency shortage of water, as
defined by board [commission] rule, the executive administrator
[director] by order may, in accordance with the priority of water
rights established by Section 11.027:
(1) temporarily suspend the right of any person who
holds a water right to use the water; and
(2) temporarily adjust the diversions of water by
water rights holders.
(b) The executive administrator [director] in ordering a
suspension or adjustment under this section shall ensure that an
action taken:
(1) maximizes the beneficial use of water;
(2) minimizes the impact on water rights holders;
(3) prevents the waste of water;
(4) takes into consideration the efforts of the
affected water rights holders to develop and implement the water
conservation plans and drought contingency plans required by this
chapter;
(5) to the greatest extent practicable, conforms to
the order of preferences established by Section 11.024; and
(6) does not require the release of water that, at the
time the order is issued, is lawfully stored in a reservoir under
water rights associated with that reservoir.
(c) The board [commission] shall adopt rules to implement
this section, including rules:
(1) defining a drought or other emergency shortage of
water for purposes of this section; and
(2) specifying the:
(A) conditions under which the executive
administrator [director] may issue an order under this section;
(B) terms of an order issued under this section,
including the maximum duration of a temporary suspension or
adjustment under this section; and
(C) procedures for notice of, an opportunity for
a hearing on, and the appeal to the board [commission] of an order
issued under this section.
SECTION 25. Section 11.084, Water Code, is amended to read
as follows:
Sec. 11.084. SALE OF PERMANENT WATER RIGHT WITHOUT A
PERMIT. No person may sell or offer to sell a permanent water right
unless the person [he] has perfected a right to appropriate state
water by a certified filing, or unless the person [he] has obtained
a permit from the board [commission], authorizing the use of the
water for the purposes for which the permanent water right is
conveyed.
SECTION 26. Section 11.0841(c), Water Code, is amended to
read as follows:
(c) For purposes of this section, the Parks and Wildlife
Department has:
(1) the rights of a holder of a water right that is
held in the Texas Water Trust, including the right to file suit in a
civil court to prevent the unlawful use of such a right;
(2) the right to act in the same manner that a holder
of a water right may act to protect the holder's rights in seeking
to prevent any person from appropriating water in violation of a
set-aside established by the board [commission] under Section
11.1471 to meet instream flow needs or freshwater inflow needs; and
(3) the right to file suit in a civil court to prevent
the unlawful use of a set-aside established under Section 11.1471.
SECTION 27. Sections 11.0842(a), (b), (c), (d), (e), (f),
(g), (h), (i), (j), (k), (l), (m), (n), and (p), Water Code, are
amended to read as follows:
(a) If a person violates this chapter, a rule or order
adopted under this chapter [or Section 16.236], or a permit,
certified filing, or certificate of adjudication issued under this
chapter, the board [commission] may assess an administrative
penalty against that person as provided by this section. The board
[commission] may assess an administrative penalty for a violation
relating to a water division or a river basin or segment of a river
basin regardless of whether a watermaster has been appointed for
the water division or river basin or segment of the river basin.
(b) The penalty may be in an amount not to exceed $5,000 for
each day the person is in violation of this chapter, the rule or
order adopted under this chapter, or the permit, certified filing,
or certificate of adjudication issued under this chapter. [The
penalty may be in an amount not to exceed $1,000 for each day the
person is in violation of the rule or order adopted under Section
16.236 of this code.] Each day a violation continues may be
considered a separate violation for purposes of penalty assessment.
(c) In determining the amount of the penalty, the board
[commission] shall consider:
(1) the nature, circumstances, extent, duration, and
gravity of the prohibited acts, with special emphasis on the
impairment of an existing permit, certified filing, or certificate
of adjudication or the hazard or potential hazard created to the
health, safety, or welfare of the public;
(2) the impact of the violation on the instream uses,
water quality, fish and wildlife habitat, or beneficial freshwater
inflows to bays and estuaries;
(3) with respect to the alleged violator:
(A) the history and extent of previous
violations;
(B) the degree of culpability, including whether
the violation was attributable to mechanical or electrical failures
and whether the violation could have been reasonably anticipated
and avoided;
(C) demonstrated good faith, including actions
taken by the alleged violator to rectify the cause of the violation
and to compensate affected persons;
(D) any economic benefit gained through the
violation; and
(E) the amount necessary to deter future
violations; and
(4) any other matters that justice may require.
(d) If, after examination of a possible violation and the
facts surrounding that possible violation, the executive
administrator [director] concludes that a violation has occurred,
the executive administrator [director] shall issue a preliminary
report stating the facts on which that conclusion was based,
recommending that an administrative penalty under this section be
imposed on the person charged, and recommending the amount of the
penalty. The executive administrator [director] shall base the
recommended amount of the proposed penalty on the factors provided
by Subsection (c) [of this section] and shall analyze each factor
for the benefit of the board [commission].
(e) No later than the 10th day after the date on which the
report is issued, the executive administrator [director] shall give
written notice of the report to the person charged with the
violation. The notice shall include a brief summary of the charges,
a statement of the amount of the penalty recommended, and a
statement of the right of the person charged to a hearing on the
occurrence of the violation, the amount of the penalty, or both the
occurrence of the violation and the amount of the penalty.
(f) No later than the 20th day after the date on which notice
is received, the person charged may either give to the board
[commission] written consent to the executive administrator's
[director's] report, including the recommended penalty, or make a
written request for a hearing.
(g) If the person charged with the violation consents to the
penalty recommended by the executive administrator [director] or
fails to timely respond to the notice, the board [commission] by
order shall either assess the penalty or order a hearing to be held
on the findings and recommendations in the executive
administrator's [director's] report. If the board [commission]
assesses the penalty recommended by the report, the board
[commission] shall give written notice of its decision to the
person charged.
(h) If the person charged requests or the board [commission]
orders a hearing, the board [commission] shall call a hearing and
give notice of the hearing. As a result of the hearing, the board
[commission] by order either may find that a violation has occurred
and may assess a penalty, may find that a violation has occurred but
that no penalty should be assessed, or may find that no violation
has occurred. All proceedings under this subsection are subject to
Chapter 2001, Government Code. In making any penalty decision, the
board [commission] shall analyze each of the factors provided by
Subsection (c) [of this section].
(i) The board [commission] shall give notice of its decision
to the person charged, and if the board [commission] finds that a
violation has occurred and assesses an administrative penalty, the
board [commission] shall give written notice to the person charged
of its findings, of the amount of the penalty, and of the person's
right to judicial review of the board's [commission's] order. If
the board [commission] is required to give notice of a penalty under
this subsection or Subsection (g) [of this section], the board
[commission] shall file notice of its decision in the Texas
Register not later than the 10th day after the date on which the
decision is adopted.
(j) Within the 30-day period immediately following the day
on which the board's [commission's] order is final, as provided by
Subchapter F, Chapter 2001, Government Code, the person charged
with the penalty shall:
(1) pay the penalty in full;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(k) Within the 30-day period, a person who acts under
Subsection (j)(3) [of this section] may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court
for placement in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the board's [commission's]
order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) giving a copy of the affidavit to the board
[commission] by certified mail.
(l) If the board [commission] receives a copy of an
affidavit under Subsection (k)(2) [of this section], it may file
with the court within five days after the date the copy is received
a contest to the affidavit. The court shall hold a hearing on the
facts alleged in the affidavit as soon as practicable and shall stay
the enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the amount of the
penalty and to give a supersedeas bond.
(m) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the board
[commission] may refer the matter to the attorney general for
collection of the amount of the penalty.
(n) Judicial review of the order or decision of the board
[commission] assessing the penalty shall be under the substantial
evidence rule and shall be instituted by filing a petition with a
district court in Travis County, as provided by Subchapter G,
Chapter 2001, Government Code.
(p) Notwithstanding any other provision to the contrary,
the board [commission] may compromise, modify, or remit, with or
without condition, any penalty imposed under this section.
SECTION 28. Sections 11.0843(a) and (b), Water Code, are
amended to read as follows:
(a) Upon witnessing a violation of this chapter or a rule or
order or a water right issued under this chapter, the executive
administrator [director] or a person designated by the executive
administrator [director], including a watermaster or the
watermaster's deputy, may issue the alleged violator a field
citation alleging that a violation has occurred and providing the
alleged violator the option of either:
(1) without admitting to or denying the alleged
violation, paying an administrative penalty in accordance with the
predetermined penalty amount established under Subsection (b) and
taking remedial action as provided in the citation; or
(2) requesting a hearing on the alleged violation in
accordance with Section 11.0842.
(b) By rule the board [commission] shall establish penalty
amounts corresponding to types of violations of this chapter or
rules or orders adopted or water rights issued under this chapter.
SECTION 29. Subchapter C, Chapter 11, Water Code, is
amended by adding Section 11.0844 to read as follows:
Sec. 11.0844. INJUNCTIVE RELIEF. (a) The executive
administrator may enforce a board rule adopted under this chapter
or a provision of a permit issued by the board under this chapter by
injunction or other appropriate remedy.
(b) If it appears that a violation or threat of violation of
this chapter or a rule adopted or an order or a permit issued under
this chapter has occurred or is about to occur, the executive
administrator may have a suit instituted in district court for
injunctive relief to restrain the violation or threat of violation.
(c) The suit may be brought in the county in which the
defendant resides or in the county in which the violation or threat
of violation occurs.
(d) In a suit brought under this section to enjoin a
violation or threat of violation described by Subsection (b), the
court may grant the board, without bond or other undertaking, any
prohibitory or mandatory injunction the facts may warrant,
including a temporary restraining order and, after notice and
hearing, a temporary injunction or permanent injunction.
(e) On request of the executive administrator, the attorney
general or the prosecuting attorney in a county in which the
violation occurs shall initiate a suit in the name of the state for
injunctive relief. The suit may be brought independently of or in
conjunction with a suit under Section 11.082.
SECTION 30. Sections 11.085(a), (d), (e), (i), (j), (k),
(l), and (m), Water Code, are amended to read as follows:
(a) No person may take or divert any state water from a river
basin in this state and transfer such water to any other river basin
without first applying for and receiving a water right or an
amendment to a permit, certified filing, or certificate of
adjudication from the board [commission] authorizing the transfer.
(d) Prior to taking action on an application for an
interbasin transfer, the board [commission] shall conduct at least
one public meeting to receive comments in both the basin of origin
of the water proposed for transfer and the basin receiving water
from the proposed transfer. Notice shall be provided pursuant to
Subsection (g) [of this section]. Any person may present relevant
information and data at the meeting on the criteria which the board
[commission] is to consider related to the interbasin transfer.
(e) In addition to the public meetings required by
Subsection (d), if the application is contested in a manner
requiring an evidentiary hearing under the rules of the board
[commission], the board [commission] shall give notice and hold an
evidentiary hearing, in accordance with board [commission] rules
and applicable state law. An evidentiary hearing on an application
to transfer water authorized under an existing water right is
limited to considering issues related to the requirements of this
section.
(i) The applicant shall pay the cost of notice required to
be provided under this section. The board [commission] by rule may
establish procedures for payment of those costs.
(j) In addition to other requirements of this code relating
to the review of and action on an application for a new water right
or amended permit, certified filing, or certificate of
adjudication, the board [commission] shall:
(1) request review and comment on an application for
an interbasin transfer from each county judge of a county located in
whole or in part in the basin of origin. A county judge should make
comment only after seeking advice from the county commissioners
court; and
(2) give consideration to the comments of each county
judge of a county located in whole or in part in the basin of origin
prior to taking action on an application for an interbasin
transfer.
(k) In addition to other requirements of this code relating
to the review of and action on an application for a new water right
or amended permit, certified filing, or certificate of
adjudication, the board [commission] shall weigh the effects of the
proposed transfer by considering:
(1) [the need for the water in the basin of origin and
in the proposed receiving basin based on the period for which the
water supply is requested, but not to exceed 50 years;
[(2) factors identified in the applicable approved
regional water plans which address the following:
[(A) the availability of feasible and
practicable alternative supplies in the receiving basin to the
water proposed for transfer;
[(B) the amount and purposes of use in the
receiving basin for which water is needed;
[(C) proposed methods and efforts by the
receiving basin to avoid waste and implement water conservation and
drought contingency measures;
[(D) proposed methods and efforts by the
receiving basin to put the water proposed for transfer to
beneficial use;
[(E) the projected economic impact that is
reasonably expected to occur in each basin as a result of the
transfer; and
[(F)] the projected impacts of the proposed
transfer that are reasonably expected to occur on [existing water
rights,] instream uses, water quality, aquatic and riparian
habitat, and bays and estuaries that must be assessed under
Sections 11.147, 11.150, and 11.152 [of this code] in each basin.
If the water sought to be transferred is currently authorized to be
used under an existing permit, certified filing, or certificate of
adjudication, such impacts shall only be considered in relation to
that portion of the permit, certified filing, or certificate of
adjudication proposed for transfer and shall be based on historical
uses of the permit, certified filing, or certificate of
adjudication for which amendment is sought;
[(3) proposed mitigation or compensation, if any, to
the basin of origin by the applicant;
[(4) the continued need to use the water for the
purposes authorized under the existing permit, certified filing, or
certificate of adjudication, if an amendment to an existing water
right is sought;] and
(2) [(5)] the information required to be submitted by
the applicant.
(l) The board [commission] may grant, in whole or in part,
an application for an interbasin transfer only to the extent that:
(1) the detriments to the basin of origin during the
proposed transfer period are less than the benefits to the
receiving basin during the proposed transfer period, as determined
by the board [commission] based on consideration of the factors
described by Subsection (k); and
(2) the applicant for the interbasin transfer has
prepared a drought contingency plan and has developed and
implemented a water conservation plan that will result in the
highest practicable levels of water conservation and efficiency
achievable within the jurisdiction of the applicant.
(m) The board [commission] may grant new or amended water
rights under this section with or without specific terms or periods
of use and with specific conditions under which a transfer of water
may occur.
SECTION 31. Sections 11.087(b) and (c), Water Code, are
amended to read as follows:
(b) The board [commission] may make and enforce rules and
orders to implement the provisions of this section, including rules
and orders designed to:
(1) establish an orderly system for water releases and
diversions in order to protect vested rights and to avoid the loss
of released water;
(2) prescribe the time that releases of water may
begin and end;
(3) determine the proportionate quantities of the
released water in transit and the water that would have been flowing
in the stream without the addition of the released water;
(4) require each owner or operator of a dam or
reservoir on the stream between the point of release and the point
of destination to allow free passage of the released water in
transit; and
(5) establish other requirements the board
[commission] considers necessary to effectuate the purposes of this
section.
(c) Orders made by the board [commission] to effectuate its
rules under this section shall be mailed by certified mail to each
diverter of water and to each reservoir owner on the stream between
the point of release and the point of destination of the released
water as shown by the records of the board [commission].
SECTION 32. Section 11.0871, Water Code, is amended to read
as follows:
Sec. 11.0871. TEMPORARY DIVERSION OF WATER ON INTERNATIONAL
STREAM. (a) The board [commission] may authorize, under
conditions stated in an order, a watermaster to provide for the
temporary diversion and use by holders of water rights of storm
water or floodwater that spills from dams and reservoirs on an
international stream and otherwise would flow into the Gulf of
Mexico without opportunity for beneficial use.
(b) In an order made by the board [commission] under this
section, the board [commission] may not discriminate between
holders of water rights from an international stream except to the
extent necessary to protect the holders of water rights from the
same source of supply.
(c) The board [commission] shall give notice by mail to
holders of water rights from an international stream and shall hold
an evidentiary hearing before entry of an order under this section.
SECTION 33. Section 11.093, Water Code, is amended to read
as follows:
Sec. 11.093. ABATEMENT OF WASTE AS PUBLIC NUISANCE. (a) A
person who permits an unreasonable loss of water through faulty
design or negligent operation of any waterworks using water for a
purpose named in this chapter commits waste, and the board
[commission] may declare the works causing the waste to be a public
nuisance. The board [commission] may take the necessary action to
abate the nuisance. Also, any person who may be injured by the
waste may sue in the district court having jurisdiction over the
works causing the waste to have the operation of the works abated as
a public nuisance.
(b) In case of a wasteful use of water defined by Section
11.092 [of this code], the board [commission] shall declare the use
to be a public nuisance and shall act to abate the nuisance by
directing the person supplying the water to close the water gates of
the person wasting the water and to keep them closed until the board
[commission] determines that the unlawful use of water is
corrected.
SECTION 34. Section 11.097, Water Code, is amended to read
as follows:
Sec. 11.097. REMOVAL OF OBSTRUCTIONS FROM NAVIGABLE
STREAMS. (a) On its own motion or on written request from a
commissioners court, the board [commission] shall investigate a
reported natural obstruction in a navigable stream caused by the
accumulation of limbs, logs, leaves, other tree parts, or other
debris. If making the investigation on request of a commissioners
court, the board [commission] must make its investigation not later
than the 30th day after the date on which it receives the written
request from the commissioners court.
(b) On completion of the investigation, if the board
[commission] determines that the obstruction is creating a hazard
or is having other detrimental effect on the navigable stream, the
board [commission] shall initiate action to remove the obstruction.
(c) In removing an obstruction, the board [commission] may
solicit the assistance of federal and state agencies including the
Corps of Engineers, Texas National Guard, the Parks and Wildlife
Department, and districts and authorities created under Article
III, Sections 52(b)(1) and (2), or Article XVI, Section 59, of the
Texas Constitution. Also, the board [commission] may enter into
contracts for services required to remove an obstruction. However,
no river authority may require the removal, relocation, or
reconfiguration of a floating structure which was in place before
September 1, 1987, [the effective date of this Act] and the
effective date of any ordinance, rule, resolution, or other act of
the river authority mandating such action unless the board
[commission] determines the structure is an obstruction to
navigation.
SECTION 35. Section 11.121, Water Code, is amended to read
as follows:
Sec. 11.121. PERMIT REQUIRED. Except as provided in
Sections 11.1405, 11.142, 11.1421, 11.1422, and 18.003, no person
may appropriate any state water or begin construction of any work
designed for the storage, taking, or diversion of water without
first obtaining a permit from the board [commission] to make the
appropriation.
SECTION 36. Sections 11.122(a) and (c), Water Code, are
amended to read as follows:
(a) All holders of permits, certified filings, and
certificates of adjudication issued under former Section 11.323 [of
this code] shall obtain from the board [commission] authority to
change the place of use, purpose of use, point of diversion, rate of
diversion, acreage to be irrigated, or otherwise alter a water
right. Without obtaining an amendment, the holder of a permit,
certified filing, or certificate of adjudication that includes
industrial or irrigation use may use or supply water for an
agricultural use that was classified as industrial or irrigation
before September 1, 2001.
(c) The board [commission] shall adopt rules to effectuate
the provisions of this section.
SECTION 37. Section 11.123, Water Code, is amended to read
as follows:
Sec. 11.123. PERMIT PREFERENCES. The board [commission]
shall give preference to applications in the order declared in
Section 11.024 [of this code] and to applications which will
effectuate the maximum utilization of water and are calculated to
prevent the escape of water without contribution to a beneficial
public service.
SECTION 38. Section 11.126, Water Code, is amended to read
as follows:
Sec. 11.126. BOARD [COMMISSION] REQUIREMENTS. (a) If the
proposed taking or diversion of water for irrigation exceeds nine
cubic feet per second, the executive administrator [director] may
require additional information as prescribed by this section.
(b) The executive administrator [director] may require a
continuous longitudinal profile, cross sections of the proposed
channel, and the detail plans of any proposed structure, on any
scales and with any definition the executive administrator
[director] considers necessary or expedient.
(c) If the application proposes construction of a dam
greater than six feet in height either for diversion or storage, the
executive administrator [director] may also require filing a copy
of all plans and specifications and a copy of the engineer's field
notes of any survey of the lake or reservoir. No work on the project
shall proceed until approval of the plans is obtained from the
executive administrator [director].
(d) If the applicant is a corporation, the board
[commission] may require filing a certified copy of its articles of
incorporation, a statement of the names and addresses of its
directors and officers, and a statement of the amount of its
authorized capital stock and its paid-up capital stock.
(e) If the applicant is not a corporation, the board
[commission] may require filing a sworn statement showing the name
and address of each person interested in the appropriation, the
extent of the person's [his] interest, and the person's [his]
financial condition.
SECTION 39. Section 11.127, Water Code, is amended to read
as follows:
Sec. 11.127. ADDITIONAL REQUIREMENTS: DRAINAGE PLANS. If
the board [commission] believes that the efficient operation of any
existing or proposed irrigation system may be adversely affected by
lack of adequate drainage facilities incident to the work proposed
to be done by an applicant, the board [commission] may require the
applicant to submit to the executive administrator [director] for
approval plans for drainage adequate to guard against any injury
which the proposed work may entail.
SECTION 40. Section 11.1271, Water Code, is amended to read
as follows:
Sec. 11.1271. ADDITIONAL REQUIREMENTS: WATER CONSERVATION
PLANS. (a) The board [commission] shall require from an applicant
for a new or amended water right the formulation and submission of a
water conservation plan and the adoption of reasonable water
conservation measures, as defined by Subdivision (8)(B), Section
11.002[, of this code].
(b) The board [commission] shall require the holder of an
existing permit, certified filing, or certificate of adjudication
for the appropriation of surface water in the amount of 1,000
acre-feet a year or more for municipal, industrial, and other uses,
and 10,000 acre-feet a year or more for irrigation uses, to develop,
submit, and implement a water conservation plan, consistent with
the appropriate approved regional water plan, that adopts
reasonable water conservation measures as defined by Subdivision
(8)(B), Section 11.002[, of this code]. The requirement for a water
conservation plan under this section shall not result in the need
for an amendment to an existing permit, certified filing, or
certificate of adjudication.
(c) All [Beginning May 1, 2005, all] water conservation
plans required under this section must include specific, quantified
5-year and 10-year targets for water savings. The entity preparing
the plan shall establish the targets. Targets must include goals
for water loss programs and goals for municipal use in gallons per
capita per day.
(d) The [commission and the] board [jointly] shall identify
quantified target goals for water conservation that water suppliers
and other entities may use as guidelines in preparing water
conservation plans. Goals established under this subsection are
not enforceable requirements.
(e) The [commission and] board [jointly] shall develop
model water conservation programs for different types of water
suppliers that suggest best management practices for achieving the
highest practicable levels of water conservation and efficiency
achievable for each specific type of water supplier.
(f) The board [commission] shall adopt rules:
(1) establishing criteria and deadlines for
submission of water conservation plans, including any required
amendments, and for submission of implementation reports; and
(2) requiring the methodology and guidance for
calculating water use and conservation developed under Section
16.403 to be used in the water conservation plans required by this
section.
(g) At a minimum, rules adopted under Subsection (f)(2) must
require an entity to report the most detailed level of municipal
water use data currently available to the entity. The board
[commission] may not adopt a rule that requires an entity to report
municipal water use data that is more detailed than the entity's
billing system is capable of producing.
SECTION 41. Section 11.1272, Water Code, is amended to read
as follows:
Sec. 11.1272. ADDITIONAL REQUIREMENT: DROUGHT CONTINGENCY
PLANS FOR CERTAIN APPLICANTS AND WATER RIGHT HOLDERS. (a) The
board [commission] shall by rule require wholesale and retail
public water suppliers and irrigation districts to develop drought
contingency plans consistent with the appropriate approved
regional water plan to be implemented during periods of water
shortages and drought.
(b) The wholesale and retail public water suppliers and
irrigation districts shall provide an opportunity for public input
during preparation of their drought contingency plans and before
submission of the plans to the board [commission].
(c) A [By May 1, 2005, a] drought contingency plan required
by board [commission] rule adopted under this section must include
specific, quantified targets for water use reductions to be
achieved during periods of water shortages and drought. The entity
preparing the plan shall establish the targets.
(d) The [commission and the] board by [joint] rule shall
identify quantified target goals for drought contingency plans that
wholesale and retail public water suppliers, irrigation districts,
and other entities may use as guidelines in preparing drought
contingency plans. Goals established under this subsection are not
enforceable requirements.
(e) The [commission and the] board [jointly] shall develop
model drought contingency programs for different types of water
suppliers that suggest best management practices for accomplishing
the highest practicable levels of water use reductions achievable
during periods of water shortages and drought for each specific
type of water supplier.
SECTION 42. Sections 11.1273(b), (c), (d), and (e), Water
Code, are amended to read as follows:
(b) Not later than the first anniversary of the date the
executive administrator [director] determines that an application
to amend a water management plan is administratively complete, the
executive administrator [director] shall complete a technical
review of the plan.
(c) If the executive administrator [director] submits a
written request for additional information to the applicant, the
applicant shall submit the requested information to the executive
administrator [director] not later than the 30th day after the date
the applicant receives the request or not later than the deadline
agreed to by the executive administrator [director] and the
applicant, if applicable. The review period required by Subsection
(b) for completing the technical review is tolled until the date the
executive administrator [director] receives the requested
information from the applicant.
(d) The board [commission] shall provide an opportunity for
public comment and a public hearing on the application, consistent
with the process for other water rights applications.
(e) If the board [commission] receives a request for a
hearing before the period for submitting public comments and
requesting a hearing expires, the board [commission] shall act on
the request for a hearing and, if the request is denied, act on the
application not later than the 60th day after the date the period
expires. If a request for a hearing is not submitted before the
period expires, the executive administrator [director] may act on
the application.
SECTION 43. Section 11.128, Water Code, is amended to read
as follows:
Sec. 11.128. PAYMENT OF FEE. The applicant shall pay the
filing fee prescribed by Section 12.111(e) [5.701] at the time the
application is filed. The board [commission] may not record, file,
or consider the application until the executive administrator
[director] certifies to the board [commission] that the fee is
paid.
SECTION 44. Section 11.129, Water Code, is amended to read
as follows:
Sec. 11.129. REVIEW OF APPLICATION; AMENDMENT. The board
[commission] shall determine whether the application, maps, and
other materials comply with the requirements of this chapter and
the rules of the board [commission]. The board [commission] may
require amendment of the application, maps, or other materials to
achieve necessary compliance.
SECTION 45. Section 11.130, Water Code, is amended to read
as follows:
Sec. 11.130. RECORDING APPLICATIONS. (a) The executive
administrator [director] shall have all applications for
appropriations recorded in a well-bound book kept for that purpose
in the board [commission] office.
(b) The executive administrator [director] shall have the
applications indexed alphabetically in the name of:
(1) the applicant;
(2) the stream or source from which the appropriation
is sought to be made; and
(3) the county in which the appropriation is sought to
be made.
SECTION 46. Section 11.131, Water Code, is amended to read
as follows:
Sec. 11.131. EXAMINATION AND DENIAL OF APPLICATION WITHOUT
HEARING. (a) The board [commission] shall make a preliminary
examination of the application, and if it appears that there is no
unappropriated water in the source of supply or that the proposed
appropriation should not be allowed for other reasons, the board
[commission] may deny the application.
(b) If the board [commission] denies the application under
this section and the applicant elects not to proceed further, the
board [commission] may order any part of the fee submitted with the
application returned to the applicant.
SECTION 47. Section 11.1311(a), Water Code, is amended to
read as follows:
(a) If a permit for a reservoir project which is listed on
the effective date of this section as a recommended project in the
current state water plan has been abandoned, voluntarily canceled,
or forfeited for failure to commence construction within the time
specified by law, and the reservoir project site is owned by a
municipality, river authority, other political subdivision, or
water supply corporation organized under Chapter 67, the board
[commission] may reissue that same permit with a new priority date
to the board without notice or hearing[, upon submission of an
application by the board].
SECTION 48. Section 11.132, Water Code, is amended to read
as follows:
Sec. 11.132. NOTICE. (a) Notice shall be given to the
persons who in the judgment of the board [commission] may be
affected by an application, including those persons listed in
Subdivision (2), Subsection (d)[, of this section]. The board
[commission], on the motion of a board member [commissioner] or on
the request of the executive administrator [director] or any
affected person, shall hold a public hearing on the application.
(b) If the proposed use is for irrigation, the board
[commission] shall include in the notice a general description of
the location and area of the land to be irrigated.
(c) In the notice, the board [commission] shall:
(1) state the name and address of the applicant;
(2) state the date the application was filed;
(3) state the purpose and extent of the proposed
appropriation of water;
(4) identify the source of supply and the place where
the water is to be stored or taken or diverted from the source of
supply;
(5) identify any proposed alternative source of water,
other than state water, identified by the applicant;
(6) specify the time and location where the board
[commission] will consider the application; and
(7) give any additional information the board
[commission] considers necessary.
(d) The board [commission] may act on the application
without holding a public hearing if:
(1) not less than 30 days before the date of action on
the application by the board [commission], the applicant has
published the board's [commission's] notice of the application at
least once in a newspaper regularly published or circulated within
the section of the state where the source of water is located;
(2) not less than 30 days before the date of action on
the application by the board [commission], the board [commission]
mails a copy of the notice by first-class mail, postage prepaid, to:
(A) each claimant or appropriator of water from
the source of water supply, the record of whose claim or
appropriation has been filed with the board [commission];
(B) each groundwater conservation district with
jurisdiction over the proposed groundwater production, if the
applicant proposes to use groundwater from a well located within a
groundwater conservation district as an alternative source of
water; and
(C) all navigation districts within the river
basin concerned; and
(3) within 30 days after the date of the newspaper
publication of the board's [commission's] notice, a public hearing
has not been requested in writing by a board member [commissioner],
the executive administrator [director], or an affected person who
objects to the application.
(e) The inadvertent failure of the board [commission] to
mail a notice under Subdivision (2), Subsection (d), [of this
section] to a navigation district that is not a claimant or
appropriator of water does not prevent the board's [commission's]
consideration of the application.
(f) If, on the date specified in the notice prescribed by
Subsection (c) [of this section], the board [commission] determines
that a public hearing must be held, the matter shall be remanded for
hearing without the necessity of issuing further notice other than
advising all parties of the time and place where the hearing is to
convene.
SECTION 49. Section 11.133, Water Code, is amended to read
as follows:
Sec. 11.133. HEARING. At the time and place stated in the
notice, the board [commission] shall hold a hearing on the
application. Any person may appear at the hearing in person or by
attorney or may enter an [his] appearance in writing. Any person
who appears may present objection to the issuance of the permit.
The board [commission] may receive evidence, orally or by
affidavit, in support of or in opposition to the issuance of the
permit, and it may hear arguments.
SECTION 50. Section 11.134, Water Code, is amended to read
as follows:
Sec. 11.134. ACTION ON APPLICATION. (a) After the hearing,
the board [commission] shall make a written decision granting or
denying the application. The application may be granted or denied
in whole or in part.
(b) The board [commission] shall grant the application only
if:
(1) the application conforms to the requirements
prescribed by this chapter and is accompanied by the prescribed
fee;
(2) unappropriated water is available in the source of
supply;
(3) the proposed appropriation:
(A) is intended for a beneficial use;
(B) does not impair existing water rights or
vested riparian rights;
(C) is not detrimental to the public welfare;
(D) considers any applicable environmental flow
standards established under Section 11.1471 and, if applicable, the
assessments performed under Sections 11.147(d) and (e) and Sections
11.150, 11.151, and 11.152; and
(E) addresses a water supply need in a manner
that is consistent with the state water plan and the relevant
approved regional water plan for any area in which the proposed
appropriation is located, unless the board [commission] determines
that conditions warrant waiver of this requirement; and
(4) the applicant has provided evidence that
reasonable diligence will be used to avoid waste and achieve water
conservation as defined by Section 11.002(8)(B).
(b-1) In determining whether an appropriation is
detrimental to the public welfare under Subsection (b)(3)(C), the
board [commission] may consider only the factors that are within
the jurisdiction and expertise of the board [commission] as
established by this chapter.
(c) The board [Beginning January 5, 2002, the commission]
may not issue a water right for municipal purposes in a region that
does not have an approved regional water plan in accordance with
Section 16.053(i) unless the board [commission] determines that
conditions warrant waiver of this requirement.
SECTION 51. Section 11.135, Water Code, is amended to read
as follows:
Sec. 11.135. ISSUANCE OF PERMIT. (a) On approval of an
application, the board [commission] shall issue a permit to the
applicant. The applicant's right to take and use water is limited
to the extent and purposes stated in the permit.
(b) The permit shall be in writing and attested by the seal
of the board [commission], and it shall contain substantially the
following information:
(1) the name of the person to whom the permit is
issued;
(2) the date the permit is issued;
(3) the date the original application was filed;
(4) the use or purpose for which the appropriation is
to be made;
(5) the amount or volume of water authorized to be
appropriated for each purpose; if use of the appropriated water is
authorized for multiple purposes, the permit shall contain a
special condition limiting the total amount of water that may
actually be diverted for all of the purposes to the amount of water
appropriated;
(6) a general description of the source of supply from
which the appropriation is proposed to be made, including any
alternative source of water that is not state water;
(7) the time within which construction or work must
begin and the time within which it must be completed; and
(8) any other information the board [commission]
prescribes.
(c) If the appropriation is for irrigation, the board
[commission] shall also place in the permit a description and
statement of the approximate area of the land to be irrigated.
SECTION 52. Section 11.1351, Water Code, is amended to read
as follows:
Sec. 11.1351. PERMIT RESTRICTIONS. In granting an
application, the board [commission] may direct that stream flow
restrictions and other conditions and restrictions be placed in the
permit being issued to protect the priority of senior water rights.
SECTION 53. Section 11.136(a), Water Code, is amended to
read as follows:
(a) The board [commission] shall transmit the permit by
registered mail to the county clerk of the county in which the
appropriation is to be made.
SECTION 54. Sections 11.137(a) and (c), Water Code, are
amended to read as follows:
(a) The board [commission] may issue seasonal permits in the
same manner that it issues regular permits. The provisions of this
chapter governing issuance of regular permits apply to issuance of
seasonal permits.
(c) In a seasonal permit, the board [commission] shall
specify the conditions necessary to fully protect prior
appropriations or vested rights on the stream.
SECTION 55. Sections 11.138(a), (b), (d), (f), and (g),
Water Code, are amended to read as follows:
(a) The board [commission] may issue temporary permits for
beneficial purposes to the extent that they do not interfere with or
adversely affect prior appropriations or vested rights on the
stream from which water is to be diverted under such temporary
permit. The board [commission] may, by appropriate order,
authorize any member of the board [commission] to approve and issue
temporary permits without notice and hearing if it appears to such
issuing party that sufficient water is available at the proposed
point of diversion to satisfy the requirements of the temporary
permit as well as all existing rights. No temporary permit issued
without notice and hearing shall authorize more than 10 acre-feet
of water, nor may it be for a term in excess of one year.
(b) The board [commission] may prescribe rules governing
notice and procedure for the issuance of temporary permits.
(d) The board [commission] may not issue a temporary permit
for a period exceeding three calendar years.
(f) A temporary permit expires and shall be cancelled by the
board [commission] in accordance with the terms of the permit.
(g) The board [commission] may prescribe by rule the fees to
be paid for issuance of temporary permits, but no fee for issuance
or extension of a temporary permit shall exceed $500.
SECTION 56. Sections 11.1381(a), (b), and (c), Water Code,
are amended to read as follows:
(a) Until a water right is perfected to the full extent
provided by Section 11.026 [of this code], the board [commission]
may issue permits for a term of years for use of state water to which
a senior water right has not been perfected.
(b) The board [commission] shall refuse to grant an
application for a permit under this section if the board
[commission] finds that there is a substantial likelihood that the
issuance of the permit will jeopardize financial commitments made
for water projects that have been built or that are being built to
optimally develop the water resources of the area.
(c) The board [commission] shall refuse to grant an
application for a term permit if the holder of the senior
appropriative water right can demonstrate that the issuance of the
term permit would prohibit the senior appropriative water right
holder from beneficially using the senior rights during the term of
the term permit. Such demonstration will be made using reasonable
projections based on accepted methods.
SECTION 57. Sections 11.139(a), (b), (c), (d), (e), (f),
(g), (h), (i), (j), and (k), Water Code, are amended to read as
follows:
(a) Except as provided by Section 11.148 [of this code], the
board [commission] may grant an emergency permit, order, or
amendment to an existing permit, certified filing, or certificate
of adjudication after notice to the governor for an initial period
of not more than 120 days if the board [commission] finds that
emergency conditions exist which present an imminent threat to the
public health and safety and which override the necessity to comply
with established statutory procedures and there are no feasible
practicable alternatives to the emergency authorization. Such
emergency action may be renewed once for not longer than 60 days.
(b) A person desiring to obtain an emergency authorization
under this section shall submit to the board [commission] a sworn
application containing the following information:
(1) a description of the condition of emergency
justifying the granting of the emergency authorization;
(2) a statement setting forth facts which support the
findings required under this section;
(3) an estimate of the dates on which the proposed
authorization should begin and end;
(4) a description of the action sought and the
activity proposed to be allowed, mandated, or prohibited; and
(5) any other statements or information required by
the board [commission].
(c) If the board [commission] finds the applicant's
statement made under Subsection (b) [of this section] to be
correct, the board [commission] may grant emergency authorizations
under this section without notice and hearing or with such notice
and hearing as the board [commission] considers practicable under
the circumstances.
(d) If the board [commission] grants an emergency
authorization under this section without a hearing, the
authorization shall fix a time and place for a hearing to be held
before the board [commission]. The hearing shall be held as soon
after the emergency authorization is granted as is practicable but
not later than 20 days after the emergency authorization is
granted.
(e) At the hearing, the board [commission] shall affirm,
modify, or set aside the emergency authorization. Any hearing on an
emergency authorization shall be conducted in accordance with
Chapter 2001, Government Code, and rules of the board [commission].
(f) If an imminent threat to the public health and safety
exists which requires emergency action before the board
[commission] can take action as provided by Subsections (a) through
(c) [of this section] and there are no feasible alternatives, the
executive administrator [director] may grant an emergency
authorization after notice to the governor. If the executive
administrator [director] issues an emergency authorization under
this subsection, the board [commission] shall hold a hearing as
provided for in Subsections (d) and (e) [of this section]. The
requirements of Subsection (b) [of this section] shall be satisfied
by the applicant before action is taken by the executive
administrator [director] on the request for emergency
authorization.
(g) The requirements of Section 11.132 [of this code]
relating to the time for notice, newspaper notice, and method of
giving a person notice do not apply to a hearing held on an
application for an emergency authorization under this section, but
such general notice of the hearing shall be given as the board
[commission], under Subsections (c) and (e) [of this section],
considers practicable under the circumstances.
(h) The board [commission] may grant an emergency
authorization under this section for the temporary transfer and use
of all or part of a permit, certified filing, or certificate of
adjudication for other than domestic or municipal use to a retail or
wholesale water supplier for public health and safety purposes. In
addition to the requirements contained in Subsection (b) [of this
section], the board [commission] may direct that the applicant will
timely pay the amounts for which the applicant may be potentially
liable under Subsection (j) [of this section] and to the extent
authorized by law will fully indemnify and hold harmless the state,
the executive administrator [director], and the board [commission]
from any and all liability for the authorization sought. The board
[commission] may order bond or other surety in a form acceptable to
the board [commission] as a condition for such emergency
authorization. The board [commission] may not grant an emergency
authorization under this section which would cause a violation of a
federal regulation.
(i) In transferring the amount of water requested by the
applicant, the executive administrator [director] or the board
[commission] shall allocate the requested amount among two or more
permits, certified filings, or certificates of adjudication for
other than domestic or municipal use.
(j) The person granted an emergency authorization under
Subsection (h) [of this section] is liable to the owner and the
owner's agent or lessee from whom the use is transferred for the
fair market value of the water transferred as well as for any
damages caused by the transfer of use. If, within 60 days of the
termination of the authorization, the parties do not agree on the
amount due, or if full payment is not made, either party may file a
complaint with the board [commission] to determine the amount due.
The board [commission] may use dispute resolution procedures for a
complaint filed under this subsection. After exhausting all
administrative remedies under this subsection, an owner from whom
the use is transferred may file suit to recover or determine the
amount due in a district court in the county where the owner resides
or has its headquarters. The prevailing party in a suit filed under
this subsection is entitled to recover court costs and reasonable
attorney's fees.
(k) The board [commission] may prescribe rules and adopt
fees which are necessary to carry out the provisions of this
section.
SECTION 58. Section 11.140, Water Code, is amended to read
as follows:
Sec. 11.140. PERMITS FOR STORAGE FOR PROJECT DEVELOPMENT.
The board [commission] may issue permits for storage solely for the
purpose of optimum development of projects. The board [commission]
may convert these permits to permits for beneficial use if
application to have them converted is made to the board
[commission].
SECTION 59. Sections 11.1405(a), (c), (d), (e), (f), (g),
and (h), Water Code, are amended to read as follows:
(a) The board [commission] may issue a permit under this
section to authorize a diversion of state water from the Gulf of
Mexico or a bay or arm of the Gulf of Mexico for desalination and use
for industrial purposes if:
(1) the point of diversion is located less than three
miles seaward of any point located on the coast of this state; or
(2) the seawater contains a total dissolved solids
concentration based on a yearly average of samples taken monthly at
the water source of less than 20,000 milligrams per liter.
(c) A person who diverts and uses state water that consists
of marine seawater under a permit issued under Subsection (a) or as
authorized by Subsection (b) must determine the total dissolved
solids concentration of the seawater at the water source by monthly
sampling and analysis and provide the data collected to the board
[commission]. A person may not begin construction of a facility for
the diversion of marine seawater for the purposes provided by this
section without obtaining a permit until the person has provided
data to the board [commission] based on the analysis of samples
taken at the water source over a period of at least one year
demonstrating that Subsection (a)(2) does not apply. A person who
has begun construction of a facility for the diversion of marine
seawater for the purposes provided by this section without
obtaining a permit because the person has demonstrated that
Subsection (a)(2) does not apply is not required to obtain a permit
for the facility if the total dissolved solids concentration of the
seawater at the water source subsequently changes so that
Subsection (a)(2) applies.
(d) A permit application under this section must be
submitted as required by board [commission] rule.
(e) The board [commission] is not required to make a finding
of water availability for an application under this section.
(f) The board [commission] shall evaluate whether any
proposed diversion under this section is consistent with any
applicable environmental flow standards established under Section
11.1471.
(g) The board [commission] may include any provision in a
permit issued under this section that the board [commission]
considers necessary to comply with the environmental flow standards
established under Section 11.1471.
(h) The board [commission] shall adopt rules providing an
expedited procedure for acting on an application for a permit under
Subsection (a). The rules must provide for notice, an opportunity
for the submission of written comment, and an opportunity for a
contested case hearing regarding board [commission] actions
relating to an application for a permit.
SECTION 60. Section 11.141, Water Code, is amended to read
as follows:
Sec. 11.141. DATE OF PRIORITY. When the board [commission]
issues a permit, the priority of the appropriation of water and the
claimant's right to use the water date from the date of filing of
the application.
SECTION 61. Sections 11.1421(c), (d), and (e), Water Code,
are amended to read as follows:
(c) Before a person first takes water under Subsection (b)
[of this section], the person must give notice to the board
[commission] of the proposed appropriation.
(d) Each appropriation of water made under Subsection (b)
[of this section] shall be reported to the board [commission] in the
manner provided by the board's [commission's] rules.
(e) After notice and hearing, if the board [commission]
determines that as a result of low freshwater inflows appropriation
of water under Subsection (b) [of this section] would interfere
with natural productivity of bays and estuaries, the board
[commission] shall issue an order requiring interruption or
reduction of the appropriation.
SECTION 62. Section 11.1422(b), Water Code, is amended to
read as follows:
(b) The executive administrator [director] or a watermaster
who has jurisdiction over the river from which a cemetery diverts
water under this section by order may restrict a diversion
authorized by this section if the executive administrator
[director] or watermaster determines the diversion will harm a
person downstream of the cemetery who acquired a water right before
the date this section took effect. The executive administrator
[director] or watermaster shall limit the restriction to the extent
of the harm and to the period of the harm.
SECTION 63. Sections 11.143(b), (d), (e), (f), (g), (h),
and (i), Water Code, are amended to read as follows:
(b) If the applicant elects to proceed under this section,
the applicant [he] shall submit to the board [commission] a sworn
application, on a form furnished by the board [commission],
containing the following information:
(1) the name and post-office address of the applicant;
(2) the nature and purpose of the use and the amount of
water to be used annually for each purpose;
(3) the major watershed and the tributary (named or
unnamed) on which the dam or reservoir is located;
(4) the county in which the dam or reservoir is
located;
(5) the approximate distance and direction from the
county seat of the county to the location of the dam or reservoir;
(6) the survey or the portion of the survey on which
the dam or reservoir is located and, to the best of the applicant's
knowledge and belief, the distance and direction of the midpoint of
the dam or reservoir from a corner of the survey, which information
the executive administrator [director] may require to be marked on
an aerial photograph or map furnished by the board [commission];
(7) the approximate surface area, to the nearest acre,
of the reservoir when it is full and the average depth in feet when
it is full; and
(8) the approximate number of square miles in the
drainage area above the dam or reservoir.
(d) Except as otherwise specifically provided by this
subsection, before the board [commission] may approve the
application and issue the permit, it shall give notice and hold a
hearing as prescribed by this section. The board [commission] may
act on the application without holding a public hearing if:
(1) not less than 30 days before the date of action on
the application by the board [commission], the applicant has
published the board's [commission's] notice of the application at
least once in a newspaper regularly published or circulated within
the section of the state where the source of water is located;
(2) not less than 30 days before the date of action on
the application by the board [commission], the board [commission]
mails a copy of the notice by first-class mail, postage prepaid, to
each person whose claim or appropriation has been filed with the
board [commission] and whose diversion point is downstream from
that described in the application; and
(3) within 30 days after the date of the newspaper
publication of the board's [commission's] notice, a public hearing
is not requested in writing by a board member [commissioner], the
executive administrator [director], or an affected person who
objects to the application.
(e) In the notice, the board [commission] shall:
(1) state the name and post-office address of the
applicant;
(2) state the date the application was filed;
(3) state the purpose and extent of the proposed
appropriation of water;
(4) identify the source of supply, including any
proposed alternative source of water, other than state water,
identified by the applicant, and the place where the water is
stored; and
(5) specify the time and place of the hearing.
(f) The notice shall be published only once, at least 20
days before the date stated in the notice for the hearing on the
application, in a newspaper having general circulation in the
county where the dam or reservoir is located. At least 15 days
before the date set for the hearing, the board [commission] shall
transmit a copy of the notice by first-class mail to each person
whose claim or appropriation has been filed with the board
[commission] and whose diversion point is downstream from that
described in the application. If the notice identifies groundwater
from a well located in a groundwater conservation district as a
proposed alternative source of water, the notice shall be:
(1) sent to the groundwater conservation district in
which the well is located; and
(2) published, at least 20 days before the date stated
in the notice for the hearing, in a newspaper having general
circulation in each county in which the groundwater district is
located.
(g) If on the date specified in the notice prescribed by
Subsection (d) [of this section], the board [commission] determines
that a public hearing must be held, the matter shall be remanded for
hearing without the necessity of issuing further notice other than
advising all parties of the time and place where the hearing is to
convene.
(h) The applicant shall pay the filing fee prescribed by
Section 12.111(e) [5.701(c)] at the time the applicant [he] files
the application.
(i) The board [commission] shall approve the application
and issue the permit as applied for in whole or part if it
determines that:
(1) there is unappropriated water in the source of
supply;
(2) the applicant has met the requirements of this
section;
(3) the water is to be used for a beneficial purpose;
(4) the proposed use is not detrimental to the public
welfare or to the welfare of the locality; and
(5) the proposed use will not impair existing water
rights.
SECTION 64. Section 11.144, Water Code, is amended to read
as follows:
Sec. 11.144. APPROVAL FOR ALTERATIONS. All holders of
permits and certified filings shall obtain the approval of the
board [commission] before making any alterations, enlargements,
extensions, or other changes to any reservoir, dam, main canal, or
diversion work on which a permit has been granted or a certified
filing recorded. A detailed statement and plans for alterations or
changes shall be filed with the board [commission] and approved by
the executive administrator [director] before the alterations or
changes are made. This section does not apply to the ordinary
maintenance or emergency repair of the facility.
SECTION 65. Section 11.145, Water Code, is amended to read
as follows:
Sec. 11.145. WHEN CONSTRUCTION MUST BEGIN. (a) If a permit
is for appropriation by direct diversion, construction of the
proposed facilities shall begin within the time fixed by the board
[commission], which shall not exceed two years after the date the
permit is issued. The appropriator shall work diligently and
continuously to the completion of the construction. The board
[commission] may, by entering an order of record, extend the time
for beginning construction. The board [commission] may establish
fees, not to exceed $1,000, for extending the time to begin
construction of the proposed facilities.
(b) If the permit contemplates construction of a storage
reservoir, construction shall begin within the time fixed by the
board [commission], not to exceed two years after the date the
permit is issued. The board [commission], by entering an order of
record, may extend the time for beginning construction. The board
[commission] may fix fees, not to exceed $1,000, for extending the
time to begin construction of reservoirs.
SECTION 66. Sections 11.146(c) and (d), Water Code, are
amended to read as follows:
(c) If the board [commission] believes that an
appropriation or permit should be declared forfeited under this
section or any other sections of this code, it should give the
appropriator or permittee 30 days notice and provide the
appropriator or permittee [him] with an opportunity to be heard.
(d) After the hearing, the board [commission] by entering an
order of record may cancel the appropriation in whole or part. The
board [commission] shall immediately transmit a certified copy of
the cancellation order by certified mail to the county clerk of the
county in which the permit is recorded. The county clerk shall
record the cancellation order.
SECTION 67. Sections 11.147(b), (c), (d), (e), (e-1),
(e-3), (f), and (g), Water Code, are amended to read as follows:
(b) In its consideration of an application for a permit to
store, take, or divert water, the board [commission] shall assess
the effects, if any, of the issuance of the permit on the bays and
estuaries of Texas. For permits issued within an area that is 200
river miles of the coast, to commence from the mouth of the river
thence inland, the board [commission] shall include in the permit
any conditions considered necessary to maintain beneficial inflows
to any affected bay and estuary system, to the extent practicable
when considering all public interests and the studies mandated by
Section 16.058 as evaluated under Section 11.1491.
(c) For the purposes of making a determination under
Subsection (b) [of this section], the board [commission] shall
consider among other factors:
(1) the need for periodic freshwater inflows to supply
nutrients and modify salinity to preserve the sound environment of
the bay or estuary, using any available information, including
studies and plans specified in Section 11.1491 [of this code] and
other studies considered by the board [commission] to be reliable;
together with existing circumstances, natural or otherwise, that
might prevent the conditions imposed from producing benefits;
(2) the ecology and productivity of the affected bay
and estuary system;
(3) the expected effects on the public welfare of not
including in the permit some or all of the conditions considered
necessary to maintain the beneficial inflows to the affected bay or
estuary system;
(4) the quantity of water requested and the proposed
use of water by the applicant, as well as the needs of those who
would be served by the applicant;
(5) the expected effects on the public welfare of the
failure to issue all or part of the permit being considered; and
(6) for purposes of this section, the declarations as
to preferences for competing uses of water as found in Sections
11.024 and 11.033, [Water Code,] as well as the public policy
statement in Section 1.003[, Water Code].
(d) In its consideration of an application to store, take,
or divert water, the board [commission] shall include in the
permit, to the extent practicable when considering all public
interests, those conditions considered by the board [commission]
necessary to maintain existing instream uses and water quality of
the stream or river to which the application applies. In
determining what conditions to include in the permit under this
subsection, the board [commission] shall consider among other
factors:
(1) the studies mandated by Section 16.059; and
(2) any water quality assessment performed under
Section 11.150.
(e) The board [commission] shall include in the permit, to
the extent practicable when considering all public interests, those
conditions considered by the board [commission] necessary to
maintain fish and wildlife habitats. In determining what
conditions to include in the permit under this subsection, the
board [commission] shall consider any assessment performed under
Section 11.152.
(e-1) Any permit for a new appropriation of water or an
amendment to an existing water right that increases the amount of
water authorized to be stored, taken, or diverted must include a
provision allowing the board [commission] to adjust the conditions
included in the permit or amended water right to provide for
protection of instream flows or freshwater inflows. With respect
to an amended water right, the provision may not allow the board
[commission] to adjust a condition of the amendment other than a
condition that applies only to the increase in the amount of water
to be stored, taken, or diverted authorized by the amendment. This
subsection does not affect an appropriation of or an authorization
to store, take, or divert water under a permit or amendment to a
water right issued before September 1, 2007. The board
[commission] shall adjust the conditions if the board [commission]
determines, through an expedited public comment process, that such
an adjustment is appropriate to achieve compliance with applicable
environmental flow standards adopted under Section 11.1471. The
adjustment:
(1) in combination with any previous adjustments made
under this subsection may not increase the amount of the
pass-through or release requirement for the protection of instream
flows or freshwater inflows by more than 12.5 percent of the
annualized total of that requirement contained in the permit as
issued or of that requirement contained in the amended water right
and applicable only to the increase in the amount of water
authorized to be stored, taken, or diverted under the amended water
right;
(2) must be based on appropriate consideration of the
priority dates and diversion locations of any other water rights
granted in the same river basin that are subject to adjustment under
this subsection; and
(3) must be based on appropriate consideration of any
voluntary contributions to the Texas Water Trust, and of any
voluntary amendments to existing water rights to change the use of a
specified quantity of water to or add a use of a specified quantity
of water for instream flows dedicated to environmental needs or bay
and estuary inflows as authorized by Section 11.0237(a), that
actually contribute toward meeting the applicable environmental
flow standards.
(e-3) Notwithstanding Subsections (b)-(e), for the purpose
of determining the environmental flow conditions necessary to
maintain freshwater inflows to an affected bay and estuary system,
existing instream uses and water quality of a stream or river, or
fish and aquatic wildlife habitats, the board [commission] shall
apply any applicable environmental flow standard, including any
environmental flow set-aside, adopted under Section 11.1471
instead of considering the factors specified by those subsections.
(f) On receipt of an application for a permit to store,
take, or divert water, the board [commission] shall send a copy of
the permit application and any subsequent amendments to the Parks
and Wildlife Department. At its option, the Parks and Wildlife
Department may be a party in hearings on applications for permits to
store, take, or divert water. In making a final decision on any
application for a permit, the board [commission], in addition to
other information, evidence, and testimony presented, shall
consider all information, evidence, and testimony presented by the
Parks and Wildlife Department [and the board].
(g) The failure of the Parks and Wildlife Department to
appear as a party does not relieve the board [commission] of the
requirements of this section.
SECTION 68. Sections 11.1471(a), (b), (d), (e), and (f),
Water Code, are amended to read as follows:
(a) The board [commission] by rule shall:
(1) adopt appropriate environmental flow standards
for each river basin and bay system in this state that are adequate
to support a sound ecological environment, to the maximum extent
reasonable considering other public interests and other relevant
factors;
(2) establish an amount of unappropriated water, if
available, to be set aside to satisfy the environmental flow
standards to the maximum extent reasonable when considering human
water needs; and
(3) establish procedures for implementing an
adjustment of the conditions included in a permit or an amended
water right as provided by Sections 11.147(e-1) and (e-2).
(b) In adopting environmental flow standards for a river
basin and bay system under Subsection (a)(1), the board
[commission] shall consider:
(1) the definition of the geographical extent of the
river basin and bay system adopted by the advisory group under
Section 11.02362(a) and the definition and designation of the river
basin by the board under Section 16.051(c);
(2) the schedule established by the advisory group
under Section 11.02362(d) or (e) for the adoption of environmental
flow standards for the river basin and bay system, if applicable;
(3) the environmental flow analyses and the
recommended environmental flow regime developed by the applicable
basin and bay expert science team under Section 11.02362(m);
(4) the recommendations developed by the applicable
basin and bay area stakeholders committee under Section 11.02362(o)
regarding environmental flow standards and strategies to meet the
flow standards;
(5) any comments submitted by the advisory group to
the board [commission] under Section 11.02362(q);
(6) the specific characteristics of the river basin
and bay system;
(7) economic factors;
(8) the human and other competing water needs in the
river basin and bay system;
(9) all reasonably available scientific information,
including any scientific information provided by the science
advisory committee; and
(10) any other appropriate information.
(d) As provided by Section 11.023, the board [commission]
may not issue a permit for a new appropriation or an amendment to an
existing water right that increases the amount of water authorized
to be stored, taken, or diverted if the issuance of the permit or
amendment would impair an environmental flow set-aside established
under Subsection (a)(2). A permit for a new appropriation or an
amendment to an existing water right that increases the amount of
water authorized to be stored, taken, or diverted that is issued
after the adoption of an applicable environmental flow set-aside
must contain appropriate conditions to ensure protection of the
environmental flow set-aside.
(e) An environmental flow set-aside established under
Subsection (a)(2) for a river basin and bay system other than the
middle and lower Rio Grande must be assigned a priority date
corresponding to the date the board [commission] receives
environmental flow regime recommendations from the applicable
basin and bay expert science team and be included in the appropriate
water availability models in connection with an application for a
permit for a new appropriation or for an amendment to an existing
water right that increases the amount of water authorized to be
stored, taken, or diverted.
(f) An environmental flow standard or environmental flow
set-aside adopted under Subsection (a) may be altered by the board
[commission] in a rulemaking process undertaken in accordance with
a schedule established by the board [commission]. In establishing
a schedule, the board [commission] shall consider the applicable
work plan approved by the advisory group under Section 11.02362(p).
The board's [commission's] schedule may not provide for the
rulemaking process to occur more frequently than once every 10
years unless the work plan provides for a periodic review under
Section 11.02362(p) to occur more frequently than once every 10
years. In that event, the board [commission] may provide for the
rulemaking process to be undertaken in conjunction with the
periodic review if the board [commission] determines that schedule
to be appropriate. A rulemaking process undertaken under this
subsection must provide for the participation of stakeholders
having interests in the particular river basin and bay system for
which the process is undertaken.
SECTION 69. Section 11.148, Water Code, is amended to read
as follows:
Sec. 11.148. EMERGENCY SUSPENSION OF PERMIT CONDITIONS AND
EMERGENCY AUTHORITY TO MAKE AVAILABLE WATER SET ASIDE FOR
ENVIRONMENTAL FLOWS. (a) Permit conditions relating to beneficial
inflows to affected bays and estuaries and instream uses may be
suspended by the board [commission] if the board [commission] finds
that an emergency exists and cannot practically be resolved in
other ways.
(a-1) State water that is set aside by the board
[commission] to meet the needs for freshwater inflows to affected
bays and estuaries and instream uses under Section 11.1471(a)(2)
may be made available temporarily for other essential beneficial
uses if the board [commission] finds that an emergency exists that
cannot practically be resolved in another way.
(b) Before the board [commission] suspends a permit
condition under Subsection (a) or makes water available temporarily
under Subsection (a-1), it must give written notice to the Parks and
Wildlife Department of the proposed action. The board [commission]
shall give the Parks and Wildlife Department an opportunity to
submit comments on the proposed action within 72 hours from such
time and the board [commission] shall consider those comments
before issuing its order implementing the proposed action.
(c) The board [commission] may suspend the permit condition
under Subsection (a) or make water available temporarily under
Subsection (a-1) without notice to any other interested party other
than the Parks and Wildlife Department as provided by Subsection
(b). However, all affected persons shall be notified immediately
by publication, and a hearing to determine whether the suspension
should be continued shall be held within 15 days of the date on
which the order to suspend is issued.
SECTION 70. Section 11.1491, Water Code, is amended to read
as follows:
Sec. 11.1491. EVALUATION OF BAYS AND ESTUARIES DATA. (a)
The Parks and Wildlife Department and the board [commission] shall
have joint responsibility to review the studies prepared under
Section 16.058, to determine inflow conditions necessary for the
bays and estuaries, and to provide information necessary for water
resources management. Each agency shall designate an employee to
share equally in the oversight of the program. Other
responsibilities shall be divided between the Parks and Wildlife
Department and the board [commission] to maximize present in-house
capabilities of personnel and to minimize costs to the state. Each
agency shall have reasonable access to all information produced by
the other agency. Publication of reports completed under this
section shall be submitted for comment to the board [commission],
the Parks and Wildlife Department, the advisory group, the science
advisory committee, and any applicable basin and bay area
stakeholders committee and basin and bay expert science team.
(b) [(c)] The board may authorize the use of money from the
research and planning fund established by Chapter 15 [of this code]
to accomplish the purposes of this section. These funds shall be
used by the board [commission] in cooperation with the Parks and
Wildlife Department for interagency contracts with cooperating
agencies and universities, and contracts with private sector
establishments, as necessary, to accomplish the purposes of this
section.
SECTION 71. Section 11.150, Water Code, is amended to read
as follows:
Sec. 11.150. EFFECTS OF PERMITS ON WATER QUALITY. In
consideration of an application for a permit under this subchapter,
the board [commission] shall assess the effects, if any, of the
issuance of the permit on water quality in this state.
SECTION 72. Section 11.1501, Water Code, is amended to read
as follows:
Sec. 11.1501. CONSIDERATION AND REVISION OF PLANS. In
considering an application for a permit to store, take, or divert
surface water, or for an amendment to a permit, certified filing, or
certificate of adjudication, the board [commission] shall consider
the state water plan and any approved regional water plan for the
area or areas in which the water is proposed to be stored, diverted,
or used.
SECTION 73. Section 11.151, Water Code, is amended to read
as follows:
Sec. 11.151. EFFECTS OF PERMITS ON GROUNDWATER. In
considering an application for a permit to store, take, or divert
surface water, the board [commission] shall consider the effects,
if any, on groundwater or groundwater recharge.
SECTION 74. Section 11.152, Water Code, is amended to read
as follows:
Sec. 11.152. ASSESSMENT OF EFFECTS OF PERMITS ON FISH AND
WILDLIFE HABITATS. In its consideration of an application for a
permit to store, take, or divert water in excess of 5,000 acre feet
per year, the board [commission] shall assess the effects, if any,
on the issuance of the permit on fish and wildlife habitats and may
require the applicant to take reasonable actions to mitigate
adverse impacts on such habitat. In determining whether to require
an applicant to mitigate adverse impacts on a habitat, the board
[commission] may consider any net benefit to the habitat produced
by the project. The board [commission] shall offset against any
mitigation required by the U.S. Fish and Wildlife Service pursuant
to 33 C.F.R. Parts 320-330 any mitigation authorized by this
section.
SECTION 75. Section 11.153(c), Water Code, is amended to
read as follows:
(c) This section does not preclude the board [commission]
from considering an aquifer storage and recovery project to be a
component of a project permitted under this chapter that is not
required to be based on the continuous availability of historic,
normal stream flow.
SECTION 76. Sections 11.171(3) and (4), Water Code, are
amended to read as follows:
(3) "Certificate of adjudication" means a certificate
issued by the commission under former Section 11.323 [of this
code].
(4) "Permit" means an authorization by the board or by
the commission under former law granting a person the right to use
water.
SECTION 77. Section 11.173(b), Water Code, is amended to
read as follows:
(b) A permit, certified filing, or certificate of
adjudication or a portion of a permit, certified filing, or
certificate of adjudication is exempt from cancellation under
Subsection (a):
(1) to the extent of the owner's participation in the
Conservation Reserve Program authorized by the Food Security Act,
Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 (1985)
or a similar governmental program;
(2) if a significant portion of the water authorized
to be used pursuant to a permit, certified filing, or certificate of
adjudication has been used in accordance with a specific
recommendation for meeting a water need included in the regional
water plan approved pursuant to Section 16.053;
(3) if the permit, certified filing, or certificate of
adjudication:
(A) was obtained to meet demonstrated long-term
public water supply or electric generation needs as evidenced by a
water management plan developed by the holder; and
(B) is consistent with projections of future
water needs contained in the state water plan;
(4) if the permit, certified filing, or certificate of
adjudication was obtained as the result of the construction of a
reservoir funded, in whole or in part, by the holder of the permit,
certified filing, or certificate of adjudication as part of the
holder's long-term water planning; or
(5) to the extent the nonuse resulted from:
(A) the implementation of water conservation
measures under a water conservation plan submitted by the holder of
the permit, certified filing, or certificate of adjudication as
evidenced by implementation reports submitted by the holder;
(B) a suspension, adjustment, or other
restriction on the use of the water authorized to be appropriated
under the permit, certified filing, or certificate of adjudication
imposed under an order issued by the executive administrator
[director]; or
(C) an inability to appropriate the water
authorized to be appropriated under the permit, certified filing,
or certificate of adjudication due to drought conditions.
SECTION 78. Section 11.174, Water Code, is amended to read
as follows:
Sec. 11.174. BOARD [COMMISSION] MAY INITIATE PROCEEDINGS.
When the board [commission] finds that its records do not show that
some portion of the water has been used during the past 10 years,
the executive administrator [director] may initiate proceedings,
terminated by public hearing, to cancel the permit, certified
filing, or certificate of adjudication in whole or in part.
SECTION 79. Section 11.175, Water Code, is amended to read
as follows:
Sec. 11.175. NOTICE. (a) At least 45 days before the date
of the hearing, the board [commission] shall send notice of the
hearing to the holder of the permit, certified filing, or
certificate of adjudication being considered for cancellation in
whole or in part. Notice shall be sent by certified mail, return
receipt requested, to the last address shown by the records of the
board [commission]. The board [commission] shall also send notice
by regular mail to all other holders of permits, certified filings,
certificates of adjudication, and claims of unadjudicated water
rights filed pursuant to former Section 11.303 [of this code] in the
same watershed.
(b) The board [commission] shall also have the notice of the
hearing published once a week for two consecutive weeks, at least 30
days before the date of the hearing, in a newspaper published in
each county in which diversion of water from the source of supply
was authorized or proposed to be made and in each county in which
the water was authorized or proposed to be used, as shown by the
records of the board [commission]. If in any such county no
newspaper is published, then the notice may be published in a
newspaper having general circulation in the county.
SECTION 80. Section 11.176(a), Water Code, is amended to
read as follows:
(a) Except as provided by Subsection (b) [of this section],
the board [commission] shall hold a hearing and shall give the
holder of the permit, certified filing, or certificate of
adjudication and other interested persons an opportunity to be
heard and to present evidence on any matter pertinent to the
questions at issue.
SECTION 81. Section 11.177, Water Code, is amended to read
as follows:
Sec. 11.177. BOARD [COMMISSION] FINDING; ACTION. (a) At
the conclusion of the hearing, the board [commission] shall cancel
the permit, certified filing, or certificate of adjudication in
whole or in part to the extent that it finds that:
(1) the water or any portion of the water appropriated
under the permit, certified filing, or certificate of adjudication
has not been put to an authorized beneficial use during the 10-year
period; and
(2) the holder has not used reasonable diligence in
applying the water or the unused portion of the water to an
authorized beneficial use or is otherwise unjustified in the
nonuse.
(b) In determining what constitutes reasonable diligence or
a justified nonuse as used in Subsection (a)(2), the board
[commission] shall give consideration to:
(1) whether sufficient water is available in the
source of supply to meet all or part of the appropriation during the
10-year period of nonuse;
(2) whether the nonuse is justified by the holder's
participation in the federal Conservation Reserve Program or a
similar governmental program as provided by Section 11.173(b)(1);
(3) whether the existing or proposed authorized
purpose and place of use are consistent with an approved regional
water plan as provided by Section 16.053;
(4) whether the permit, certified filing, or
certificate of adjudication has been deposited into the Texas Water
Bank as provided by Sections 15.7031 and 15.704 or whether it can be
shown that the water right or water available under the right is
currently being made available for purchase through private
marketing efforts; or
(5) whether the permit, certified filing, or
certificate of adjudication has been reserved to provide for
instream flows or bay and estuary inflows.
SECTION 82. Section 11.183, Water Code, is amended to read
as follows:
Sec. 11.183. RESERVOIR. If the holder of a permit,
certified filing, or certificate of adjudication has facilities for
the storage of water in a reservoir, the board [commission] may
allow the holder [him] to retain the impoundment to the extent of
the conservation storage capacity of the reservoir for domestic,
livestock, or recreation purposes.
SECTION 83. Section 11.203, Water Code, is amended to read
as follows:
Sec. 11.203. ARTESIAN WELL: DRILLING RECORD. A person who
drills an artesian well or has one drilled shall keep a complete and
accurate record of the depth, thickness, and character of the
different strata penetrated and when the well is completed shall
transmit a copy of the record to the board [commission] by
registered or certified mail.
SECTION 84. Section 11.204, Water Code, is amended to read
as follows:
Sec. 11.204. REPORT OF NEW ARTESIAN WELL. Within one year
after an artesian well is drilled, the owner or operator shall
transmit to the board [commission] a sworn report stating the
result of the drilling operation, the use to which the water will be
applied, and the contemplated extent of the use.
SECTION 85. Section 11.206, Water Code, is amended to read
as follows:
Sec. 11.206. IMPROPERLY CASED WELL: NUISANCE. An artesian
well that is not tightly cased, capped, and furnished with
mechanical appliances that readily and effectively prevent water
from flowing out of the well and running over the surface of the
ground above the well or wasting through the strata through which it
passes is a public nuisance and subject to abatement by the
executive administrator [director].
SECTION 86. Sections 11.207(a) and (b), Water Code, are
amended to read as follows:
(a) Not later than March 1 of each year, a person who during
any part of the preceding calendar year owned or operated an
artesian well for any purpose other than domestic use shall file a
report to the board [commission] on a form supplied by the board
[commission].
(b) The report shall state:
(1) the quantity of water which was obtained from the
well;
(2) the nature of the uses to which the water was
applied;
(3) the change in the level of the well's water table;
and
(4) other information required by the board
[commission].
SECTION 87. Section 11.325, Water Code, is amended to read
as follows:
Sec. 11.325. WATER DIVISIONS. The board [commission] shall
divide the state into water divisions for the purpose of
administering adjudicated water rights. Water divisions may be
created from time to time as the necessity arises. The divisions
shall be constituted to secure the best protection to the holders of
water rights and the most economical supervision on the part of the
state.
SECTION 88. Section 11.326, Water Code, is amended to read
as follows:
Sec. 11.326. APPOINTMENT OF WATERMASTER. (a) The
executive administrator [director] may appoint one watermaster for
each water division.
(b) A watermaster holds office until a successor is
appointed. The executive administrator [director] may remove a
watermaster at any time.
(c) The executive administrator [director] may employ
assistant watermasters and other employees necessary to aid a
watermaster in the discharge of the watermaster's [his] duties.
(d) In a water division in which the office of watermaster
is vacant, the executive administrator [director] has the powers of
a watermaster.
(e) The executive administrator [director] shall supervise
and generally direct the watermaster in the performance of the
watermaster's [his] duties as defined in Section 11.327. A
watermaster is responsible to the executive administrator
[director] for the proper performance of the watermaster's [his]
duties.
(f) A person dissatisfied with any action of a watermaster
may apply to the executive administrator [director] for relief.
(g) For a water basin in which a watermaster is not
appointed, the executive administrator [director] shall:
(1) evaluate the water basin at least once every five
years to determine whether a watermaster should be appointed; and
(2) report the findings and make recommendations to
the board [commission].
(h) The board [commission] shall:
(1) determine the criteria or risk factors to be
considered in an evaluation under Subsection (g); and
(2) include the findings and recommendations under
Subsection (g) in the board's [commission's] biennial report to the
legislature.
SECTION 89. Sections 11.3261(a), (c), (d), and (e), Water
Code, are amended to read as follows:
(a) The executive administrator [director] shall establish
a watermaster advisory committee consisting of a minimum of nine
members, but no more than 15 members, who are holders of water
rights or representatives of holders of water rights in the water
division of a watermaster. In appointing members of the advisory
committee the executive administrator [director] shall consider
geographic representation, amount of water rights held, different
types of holders of water rights and users such as water districts,
municipal suppliers, irrigators, and industrial users, and
experience and knowledge in water management practices.
(c) An advisory committee member shall serve a term of two
years from the date of initial appointment by the executive
administrator [director] and hold office until a successor is
appointed.
(d) The advisory committee shall meet within 30 days
following initial appointment by the executive administrator
[director] and elect a presiding officer who shall serve on an
annual basis. Following the first meeting, the committee shall
meet regularly as necessary.
(e) The advisory committee's duties include:
(1) providing recommendations to the executive
administrator [director] regarding activities of benefit to the
holders of water rights in the administration and distribution of
water to holders of water rights;
(2) review and comment to the executive administrator
[director] on the annual budget of the watermaster operations; and
(3) other duties as may be requested by the executive
administrator [director] with regard to the watermaster operations
or as requested by holders of water rights in a water division which
the committee deems of benefit to the administration of water
rights in water divisions.
SECTION 90. Section 11.327(d), Water Code, is amended to
read as follows:
(d) A watermaster's duties shall not include activities
which relate to other programs of the board [commission], except in
situations of imminent threat to public health and safety or the
environment.
SECTION 91. Sections 11.3271(e), (f), (g), (h), and (i),
Water Code, are amended to read as follows:
(e) The watermaster's duties do not include activities that
relate to other programs of the board [commission], except as
provided by this section. The watermaster's duties shall include
activities that relate to situations of imminent threat to public
health and safety or the environment. The board [commission] shall
adopt rules:
(1) defining situations of imminent threat under this
section; and
(2) addressing the watermaster's duties in response to
terrorism.
(f) The watermaster may store in a reservoir for release at
a later time water in transit that is being conveyed down the banks
and bed of the Rio Grande under a permit issued by the board
[commission] and in accordance with rules prescribed by the board
[commission]. In this section, "water in transit" means privately
owned water, not including state water, that a person has pumped
from an underground reservoir and that is in transit between the
point of discharge into the river and the place of use or the point
of diversion by a person who has contracted with the owner of the
water to purchase the water. The contract must specify that the
contract is for the purchase and delivery of a specified amount of
water less the carriage losses incurred in transit, as described
and measured according to board [commission] rules.
(g) The watermaster may store water under Subsection (f)
only if the storage does not hinder the ability of any other holders
of Rio Grande surface water rights to store the maximum authorized
capacity in a reservoir as specified by board [commission] rules
and relevant permits, certified filings, or certificates of
adjudication.
(h) Before granting a permit to convey water down the banks
and bed of the Rio Grande, the board [commission] shall adopt rules
that provide for the methods and procedures by which the
watermaster shall account for any discharge, delivery, conveyance,
storage, diversion, or associated loss of water conveyed down the
banks and bed of the Rio Grande. A permit to convey water down the
banks and bed of the Rio Grande may not allow the permit holder to
share in any beneficial state water inflows into the Rio Grande.
The permit holder is entitled to convey only the amount of water
specified in the permit, less the carriage losses incurred in
transit, as described and measured according to board [commission]
rules. A rule adopted by the board [commission] under this
subsection must be consistent with the Treaty Relating to the
Utilization of the Waters of the Colorado and Tijuana Rivers, and of
the Rio Grande (Rio Bravo) from Fort Quitman, Texas, to the Gulf of
Mexico, concluded by the United States and the United Mexican
States on February 3, 1944, and with any minute order adopted by the
International Boundary and Water Commission.
(i) In considering an application for a permit to convey
water down the banks and bed of the Rio Grande, the board
[commission] shall consider the quality of the water to be
conveyed. The board [commission] may not issue a permit if it
determines that the water to be conveyed would degrade the water
quality of the Rio Grande.
SECTION 92. Section 11.3271(j), Water Code, as added by
Chapter 385 (S.B. 1902), Acts of the 78th Legislature, Regular
Session, 2003, is amended to read as follows:
(j) Notwithstanding any other law, the watermaster is the
official recorder for all instruments, including deeds, deeds of
trust, financing statements, security agreements, and liens, that
the board [commission] authorizes or requires to be filed in
connection with water rights relating to water in the lower,
middle, or upper basin of the Rio Grande that are subject to a
permit, certified filing, or certificate of adjudication. An
instrument shall be filed with the watermaster under this
subsection in the same manner as required by other law for the same
type of instrument. The filing of an instrument under this
subsection results in the same legal and administrative status and
consequences as a filing under other law for the same type of
instrument. An instrument filed under this subsection shall be
construed by a court, financial institution, or other affected
person in the same manner as an instrument of the same type that is
filed under other law. The watermaster may charge and collect a fee
for the recordation of instruments under this subsection in the
same amount as the fee collected by the county clerk of Cameron
County for the recordation of similar instruments. The board
[commission] by rule shall prescribe the procedures necessary for
the proper implementation of this subsection, including reasonable
transition provisions, if appropriate.
SECTION 93. Sections 11.329(a), (b), (c), (f), and (g),
Water Code, are amended to read as follows:
(a) The board [commission] shall pay the compensation and
necessary expenses of a watermaster, assistant watermasters, and
other necessary employees, but the holders of water rights that
have been determined or adjudicated and are to be administered by
the watermaster shall reimburse the board [commission] for the
compensation and expenses. Necessary expenses shall be limited to
costs associated with streamflow measurement and monitoring, water
accounting, assessment billing and collection associated with a
watermaster's operation, and other duties a watermaster may be
required to perform under this subchapter.
(b) After the adjudication decree becomes final, and each
fiscal year thereafter, the executive administrator [director]
shall provide notice to each holder of water rights under the
decree, at least 30 days prior to the board's [commission's] holding
a public hearing as provided in Subsection (c), of the proposed
budget for their watermaster operations showing the amount of
compensation and expenses that will be required annually for the
administration of the water rights so determined. This budget
shall be furnished to the watermaster advisory committee for
comment at least 30 days prior to notification to each holder of
water rights.
(c) The board [commission] shall hold a public hearing on
the proposed fiscal year budget for each watermaster operation.
The board [commission] shall determine the apportionment of the
costs of administration of adjudicated water rights among the
holders of the rights. After a public hearing, the board
[commission] shall issue an order assessing the annual cost against
the holders of water rights to whom the water will be distributed
under the final decree. The board [commission] shall equitably
apportion the costs. The executive administrator [director] may
provide for payments in installments and shall specify the dates by
which payments shall be made to the board [commission]. At the
request of the watermaster advisory committee the board
[commission] may modify a fiscal year budget for any water
division.
(f) An order of the board [commission] assessing costs
remains in effect until the board [commission] issues a further
order. The board [commission] may modify, revoke, or supersede an
order assessing costs with a subsequent order. The board
[commission] may issue supplementary orders from time to time to
apply to new diversions.
(g) The board [commission] may not assess costs under this
section against a holder of a non-priority hydroelectric right that
owns or operates privately owned facilities that collectively have
a capacity of less than two megawatts or against a holder of a water
right placed in the Texas Water Trust for a term of at least 20
years.
SECTION 94. Section 11.329(d), Water Code, as amended by
Chapters 333 (H.B. 3231) and 696 (S.B. 1406), Acts of the 75th
Legislature, Regular Session, 1997, is reenacted and amended to
read as follows:
(d) The executive administrator [director] shall collect
the assessments and shall account for assessments separately for
each water division and shall deposit assessments collected to a
special fund known as the watermaster fund established and governed
by Section 11.3291.
SECTION 95. Sections 11.3291(a), (b), (d), and (e), Water
Code, are amended to read as follows:
(a) The watermaster fund is created as a special fund in the
state treasury and shall be administered by the board [commission]
under this subchapter and rules adopted by the board [commission].
(b) The legislature hereby appropriates without further
legislative action any funds deposited in the watermaster
[watermaster's] fund as provided in this subchapter. The
watermaster fund shall be used:
(1) to pay the compensation and expenses of the
watermaster in each water division;
(2) to pay expenditures for equipment, facilities, and
capital expenditures necessary to the watermaster operation when
recommended by the watermaster advisory committee and the executive
administrator [director] and approved by the board [commission]
when hearings are required as provided in Section 11.329; and
(3) to pay into the general revenue fund for use
without further appropriation for purposes of providing overhead
and administrative expenses of the board [commission] in an amount
not greater than 10 percent times the approved annual budget under
this subchapter in a water division. Any amounts not used in one
fiscal year shall be carried over and used for the following fiscal
year's operational expenses of the watermaster.
(d) The watermaster fund shall consist of:
(1) fees collected in each water division;
(2) money from gifts, grants, or donations to the fund
for designated or general lawful use; and
(3) money from any other source designated by the
legislature or the board [commission].
(e) The board [commission] may invest, reinvest, and direct
the investment of any available money in the fund as provided by law
for the investment of money under Section 404.024, Government Code.
SECTION 96. Section 11.330, Water Code, is amended to read
as follows:
Sec. 11.330. OUTLET FOR FREE PASSAGE OF WATER. The owner of
any works for the diversion or storage of water shall maintain a
substantial headgate at the point of diversion, or a gate on each
discharge pipe of a pumping plant, constructed so that it can be
locked at the proper place by the watermaster, or a suitable outlet
in a dam to allow the free passage of water that the owner of the dam
is not entitled to divert or impound. The board [commission] shall
adopt rules, and the executive administrator [director] shall
enforce the rules, governing the type and location of the headgates
or gates and the outlets to allow the free passage of water.
SECTION 97. Section 11.331, Water Code, is amended to read
as follows:
Sec. 11.331. MEASURING DEVICES. The board [commission], by
rule, may require the owner of any works for the diversion, taking,
storage, or distribution of water to construct and maintain
suitable measuring devices at points that will enable the
watermaster to determine the quantities of water to be diverted,
taken, stored, released, or distributed in order to satisfy the
rights of the respective users.
SECTION 98. Section 11.332, Water Code, is amended to read
as follows:
Sec. 11.332. INSTALLATION OF FLUMES. The board
[commission], by rule, may require flumes to be installed along the
line of any ditch if necessary for the protection of water rights or
other property.
SECTION 99. Section 11.333, Water Code, is amended to read
as follows:
Sec. 11.333. FAILURE TO COMPLY WITH BOARD [COMMISSION]
RULES. If the owner of waterworks using state water refuses or
neglects to comply with the rules adopted pursuant to Section
11.330, 11.331, or 11.332 [of this code], the executive
administrator [director], after 10 days' [days] notice or after a
period of additional time that is reasonable under the
circumstances, may direct the watermaster to make adjustments of
the control works to prevent the owner of the works from diverting,
taking, storing, or distributing any water until the owner [he] has
fully complied with the rules.
SECTION 100. Section 11.334, Water Code, is amended to read
as follows:
Sec. 11.334. SUIT AGAINST BOARD [COMMISSION] FOR INJURY.
Any person who is injured by an act of the board [commission] under
this subchapter may bring suit against the board [commission] to
review the action or to obtain an injunction. If the water right
involved has been adjudicated as provided in this subchapter as it
previously existed, the court shall issue an injunction only if it
is shown that the board [commission] has failed to carry into effect
the decree adjudicating the water right.
SECTION 101. Sections 11.335(a) and (c), Water Code, are
amended to read as follows:
(a) If any area in which water rights of record in the office
of the board [commission] have not been adjudicated, the claimants
of the rights and the board [commission] may enter into a written
agreement for their administration.
(c) An agreement to administer unadjudicated water rights
shall be recorded in the offices of the board [commission] and of
the county clerk of each county in which any of the works or lands
affected by the agreement are located.
SECTION 102. Section 11.336, Water Code, is amended to read
as follows:
Sec. 11.336. ADMINISTRATION OF PERMITS ISSUED AFTER
ADJUDICATION. Permits, other than temporary permits, that are
issued by the board [commission] to appropriate water from an
adjudicated stream or segment are subject to administration in the
same manner as is provided in this subchapter for adjudicated water
rights.
SECTION 103. Section 11.337, Water Code, is amended to read
as follows:
Sec. 11.337. HEARINGS: NOTICE AND PROCEDURE. (a) The
board [commission] shall give notice of a hearing or other
proceeding it orders under this subchapter in the manner prescribed
in the procedural rules of the board [commission], unless this
subchapter specifically provides otherwise.
(b) In any proceeding in any part of the state, the board
[commission] may:
(1) take evidence, including the testimony of
witnesses;
(2) administer oaths;
(3) issue subpoenas and compel the attendance of
witnesses in the same manner as subpoenas are issued out of the
courts of the state;
(4) compel witnesses to testify and give evidence; and
(5) order the taking of depositions and issue
commissions for the taking of depositions in the same manner as
depositions are obtained in civil actions.
(c) Evidence may be taken by a duly appointed reporter
before the board [commission] or before an authorized
representative who has the power to administer oaths.
(d) If a person neglects or refuses to comply with an order
or subpoena issued by the board [commission] or refuses to testify
on any matter about which the person [he] may be lawfully
interrogated, the board [commission] may apply to a district court
of the county in which the proceeding is held to punish the person
[him] in the manner provided by law for such disobedience in civil
actions.
(e) The board [commission] may adjourn its proceedings from
time to time and from place to place.
(f) When a proceeding before the board [commission] is
concluded, the board [commission] shall render a decision as to the
matters concerning which the proceeding was held.
SECTION 104. Section 11.338, Water Code, is amended to read
as follows:
Sec. 11.338. CANCELLATION OF WATER RIGHTS. Nothing in this
subchapter recognizes any abandoned or cancelled water right or
impairs in any way the power of the board [commission] under general
law to forfeit, cancel, or find abandoned any water right,
including adjudicated water rights.
SECTION 105. Section 11.340(a), Water Code, is amended to
read as follows:
(a) Nothing in this subchapter prevents or precludes a
person who claims the right to divert water from a stream from
filing and prosecuting to a conclusion a suit against other
claimants of the right to divert or use water from the same stream.
However, if the board [commission] has ordered a determination of
water rights as provided in this subchapter or if the board
[commission] orders such a determination within 90 days after
notice of the filing of a suit, the suit shall be abated on the
motion of the board [commission] or any party in interest as to any
issues involved in the water rights determination.
SECTION 106. The heading to Subchapter I, Chapter 11, Water
Code, is amended to read as follows:
SUBCHAPTER I. BOARD-APPOINTED [COMMISSION-APPOINTED] WATERMASTER
SECTION 107. Section 11.451, Water Code, is amended to read
as follows:
Sec. 11.451. BOARD [COMMISSION] AUTHORITY. On petition of
25 or more holders of water rights in a river basin or segment of a
river basin or on its own motion the board [commission] may
authorize the executive administrator [director] to appoint a
watermaster for a river basin or segment of a river basin if the
board [commission] finds that the rights of senior water rights
holders in the basin or segment of the basin are threatened.
SECTION 108. Section 11.452, Water Code, is amended to read
as follows:
Sec. 11.452. PROCEDURE FOR DETERMINATION. (a) On
receiving a petition for appointment of a watermaster or on its own
motion, the board [commission] shall call and hold a hearing to
determine if a need exists for appointment of a watermaster for the
river basin or segment of the river basin.
(b) At the hearing persons who hold water rights in the
river basin or segment of the river basin may appear before the
board [commission] and submit testimony and evidence relating to
the need for appointment of a watermaster.
(c) After the hearing, the board [commission] shall make a
written determination as to whether a threat exists to the rights of
senior water rights holders in the river basin or segment of the
river basin and shall issue an order either finding that a threat
exists and directing appointment of a watermaster or denying
appointment of a watermaster.
SECTION 109. Sections 11.453(a), (c), (d), (e), (f), and
(g), Water Code, are amended to read as follows:
(a) On issuance of an order under Section 11.452 [of this
chapter] directing appointment of a watermaster, the executive
administrator [director] shall appoint a watermaster for the river
basin or segment of the river basin covered by the board
[commission] order.
(c) A watermaster holds office until a successor is
appointed. The executive administrator [director] may remove a
watermaster at any time.
(d) The executive administrator [director] may employ
assistant watermasters and other employees necessary to aid a
watermaster in the discharge of the watermaster's [his] duties.
(e) In a segment or basin in which the office of watermaster
is vacant, the executive administrator [director] has the powers of
a watermaster.
(f) The executive administrator [director] shall supervise
and generally direct the watermaster in the performance of the
watermaster's [his] duties. A watermaster is responsible to the
executive administrator [director] for the proper performance of
the watermaster's [his] duties.
(g) A person dissatisfied with any action of a watermaster
may apply to the executive administrator [director] for relief.
SECTION 110. Sections 11.4531(a) and (e), Water Code, are
amended to read as follows:
(a) For each river basin or segment of a river basin for
which the executive administrator [director] appoints a
watermaster under this subchapter, the executive administrator
[director] shall appoint a watermaster advisory committee
consisting of at least nine but not more than 15 members. A member
of the advisory committee must be a holder of a water right or a
representative of a holder of a water right in the river basin or
segment of the river basin for which the watermaster is appointed.
In appointing members to the advisory committee, the executive
administrator [director] shall consider:
(1) geographic representation;
(2) amount of water rights held;
(3) different types of holders of water rights and
users, including water districts, municipal suppliers, irrigators,
and industrial users; and
(4) experience and knowledge of water management
practices.
(e) The advisory committee shall:
(1) make recommendations to the executive
administrator [director] regarding activities of benefit to the
holders of water rights in the administration and distribution of
water to holders of water rights in the river basin or segment of
the river basin for which the watermaster is appointed;
(2) review and comment to the executive administrator
[director] on the annual budget of the watermaster operation; and
(3) perform other advisory duties as requested by the
executive administrator [director] regarding the watermaster
operation or as requested by holders of water rights and considered
by the committee to benefit the administration of water rights in
the river basin or segment of the river basin for which the
watermaster is appointed.
SECTION 111. Section 11.455(b), Water Code, is amended to
read as follows:
(b) The executive administrator [director] shall deposit
the assessments collected under this section to the credit of the
watermaster fund.
SECTION 112. Section 11.456, Water Code, is amended to read
as follows:
Sec. 11.456. MAINTAINING CURRENT STATUS. (a) To protect
water rights holders in a river basin or segment of a river basin
during the proceedings under Section 11.452 [of this code], the
board [commission] may issue an order or orders at the beginning of
the proceedings under Section 11.452 [of this code] or may request
the attorney general to seek injunctive relief to protect the water
rights holders during the proceedings.
(b) On request of the board [commission], the attorney
general shall seek injunctive relief to carry out the purpose of
Subsection (a) [of this section].
(c) The board [commission] is not required to comply with
the requirements of Chapter 2001, Government Code, in issuing
orders under Subsection (a) [of this section] and there is no right
of appeal from those orders.
SECTION 113. Section 11.457, Water Code, is amended to read
as follows:
Sec. 11.457. ASSISTANCE TO WATERMASTER. The executive
administrator [director] shall provide the watermaster with such
staff and facilities as are necessary to carry out this subchapter.
SECTION 114. Section 11.551(3), Water Code, is amended to
read as follows:
(3) "Program" means the Concho River Watermaster
Program, a division of the South Texas Watermaster established by
the commission [Texas Commission on Environmental Quality] and
operating pursuant to rules and regulations promulgated by the
board [Texas Commission on Environmental Quality].
SECTION 115. Section 11.556(a), Water Code, is amended to
read as follows:
(a) The executive administrator [director] shall appoint a
person who resides in the area described by Section 11.553 to the
South Texas Watermaster Advisory Committee.
SECTION 116. Sections 11.557(a), (b), and (c), Water Code,
are amended to read as follows:
(a) The Concho River Watermaster Advisory Committee
consists of 13 members appointed by the executive administrator
[director] as follows:
(1) six members selected from nominations received,
one representing the City of Paint Rock and one representing each of
the following stream segments or tributaries of the Concho River:
Spring Creek, Dove Creek, South Concho, Middle Concho, and main
stem of the Concho below Certificate of Adjudication No. 14-1337
(River Order No. 5460010000);
(2) six members selected from a list of candidates
submitted by the City of San Angelo; and
(3) one member selected at the executive
administrator's [director's] discretion.
(b) If the executive administrator [director] does not
receive nominations or a list of candidates as specified under
Subsection (a), after reasonable notice the executive
administrator [director] may appoint to the advisory committee the
appropriate number of members selected at the executive
administrator's [director's] discretion.
(c) If a vacancy occurs on the advisory committee, the
executive administrator [director] shall fill the vacancy for the
unexpired term by appointing a person selected in the same manner as
the person being replaced.
SECTION 117. Section 11.561, Water Code, is amended to read
as follows:
Sec. 11.561. APPLICABILITY OF OTHER LAW AND BOARD
[COMMISSION] RULES. A provision of this code or a rule adopted by
the board [commission] that relates to watermasters and does not
conflict with the provisions of this subchapter applies to the
program established under this subchapter.
SECTION 118. Section 12.011, Water Code, is amended to read
as follows:
Sec. 12.011. PERMIT APPLICATIONS. The board [commission]
shall receive, administer, and act on all applications for permits
and permit amendments:
(1) to appropriate public water for beneficial use or
storage; or
(2) to construct works for the impoundment, storage,
diversion, or transportation of public water.
SECTION 119. Section 12.012, Water Code, is amended to read
as follows:
Sec. 12.012. EVALUATION OF OUTSTANDING PERMITS. The board
[commission] shall actively and continually evaluate outstanding
permits and certified filings and shall carry out measures to
cancel wholly or partially the certified filings and permits that
are subject to cancellation.
SECTION 120. Section 12.014, Water Code, is amended to read
as follows:
Sec. 12.014. USE OF BOARD [COMMISSION] SURVEYS; POLICY.
The board [commission] shall make use of surveys, studies, and
investigations conducted by the staff of the board [commission] in
order to ascertain the character of the principal requirements of
the district regional division of the watershed areas of the state
for beneficial uses of water, to the end that distribution of the
right to take and use state water may be more equitably administered
in the public interest, that privileges granted for recognized uses
may be economically coordinated so as to achieve the maximum of
public value from the state's water resources, and that the
distinct regional necessities for water control and conservation
and for control of harmful floods may be recognized.
SECTION 121. Section 12.017, Water Code, is amended to read
as follows:
Sec. 12.017. POWER TO ENTER LAND. Any member or employee of
the commission or the board may enter any person's land, natural
waterway, or artificial waterway for the purpose of making an
investigation that would, in the judgment of the executive director
or the executive administrator, as applicable, assist the
commission or the board, as applicable, in the discharge of its
duties.
SECTION 122. Section 12.051(e), Water Code, is amended to
read as follows:
(e) In determining feasibility, the board shall consider,
among other relevant factors:
(1) the effect of the federal project on water users on
the stream as certified by the board [commission];
(2) the public interest to be served;
(3) the development of damsites to the optimum
potential for water conservation;
(4) the integration of the federal project with other
water conservation activities;
(5) the protection of the state's interests in its
water resources; and
(6) the engineering practicality of the federal
project, including cost of construction, operation, and
maintenance.
SECTION 123. Subchapter E, Chapter 12, Water Code, is
amended by adding Section 12.111 to read as follows:
Sec. 12.111. FEES. (a) The executive administrator shall
charge and collect the fees prescribed by law. The executive
administrator shall make a record of fees prescribed when due and
shall render an account to the person charged with the fees. Each
fee is a separate charge and is in addition to other fees unless
provided otherwise. Except as otherwise provided, a fee assessed
and collected under this section shall be deposited to the credit of
the water resource management account.
(b) Notwithstanding other provisions, the board by rule may
establish due dates, schedules, and procedures for assessment,
collection, and remittance of fees due the board to ensure the
cost-effective administration of revenue collection and cash
management programs.
(c) Notwithstanding other provisions, the board by rule
shall establish uniform and consistent requirements for the
assessment of penalties and interest for late payment of fees owed
the state under the board's jurisdiction. Penalties and interest
established under this section may not exceed rates established for
delinquent taxes under Sections 111.060 and 111.061, Tax Code.
(d) Except as otherwise provided by law, the fee for filing
an application or petition is $100 plus the cost of any required
notice.
(e) The fee for filing a water permit application is $100
plus the cost of required notice.
(f) The fee for filing an application for fixing or
adjusting rates is $100 plus the cost of required notice.
(g) The fee for recording an instrument in the office of the
board is $1.25 per page.
(h) The fee for the use of water for irrigation is 50 cents
per acre to be irrigated.
(i) The fee for impounding water, except under Section
11.142, is 50 cents per acre-foot of storage, based on the total
holding capacity of the reservoir at normal operating level.
(j) The fee for other uses of water not specifically named
in this section is $1 per acre-foot, except that a political
subdivision may not be required to pay fees to use water for
recharge of underground freshwater-bearing sands and aquifers or
for abatement of natural pollution. A fee is not required for a
water right that is deposited into the Texas Water Trust.
(k) A fee charged under Subsections (h) through (j) for one
use of water under a permit from the board may not exceed $50,000.
The fee for each additional use of water under a permit for which
the maximum fee is paid may not exceed $10,000.
(l) The fees prescribed by Subsections (h) through (j) are
one-time fees, payable when the application for an appropriation is
made. However, if the total fee for a permit exceeds $1,000, the
applicant shall pay one-half of the fee when the application is
filed and one-half within 180 days after notice is mailed to the
applicant that the permit is granted. If the applicant does not pay
all of the amount owed before beginning to use water under the
permit, the permit is annulled.
(m) If a permit is annulled, the matter reverts to the
status of a pending, filed application and, on the payment of use
fees as provided by Subsections (h) through (l) together with
sufficient postage fees for mailing notice of hearing, the board
shall set the application for hearing and proceed as provided by
this code.
(n) A fee imposed under Subsection (j) for the use of saline
tidal water for industrial processes is $1 per acre-foot of water
diverted for the industrial process, not to exceed a total fee of
$5,000.
(o) Notwithstanding any other law, fees collected for
deposit to the water resource management account under the
following statutes may be appropriated and used to protect water
resources in this state, including assessment of water quality,
reasonably related to the activities of any of the persons required
to pay a fee under:
(1) Subsections (d) and (e), to the extent those fees
are collected in connection with water use permits;
(2) Subsections (h) through (l);
(3) Section 11.138(g); and
(4) Section 11.145.
SECTION 124. Section 12.113, Water Code, is amended to read
as follows:
Sec. 12.113. DISPOSITION OF FEES, ETC. (a) The commission
or board, as applicable, shall immediately deposit in the State
Treasury the fees and charges it collects.
(b) The board [commission] shall deposit all costs
collected under Subchapter G, Chapter 11, [of this code] in the
State Treasury to the credit of the watermaster administration
account, from which the board [commission] shall pay all expenses
necessary to efficiently administer and perform the duties
described in Sections 11.325 through 11.335 [of this code].
SECTION 125. Section 12.114, Water Code, is amended to read
as follows:
Sec. 12.114. DISPOSITION OF FEES PENDING DETERMINATION.
The commission or board, as applicable, shall hold all fees, except
filing fees, which are paid with an application until the
commission or board, as applicable, finally determines whether the
application should be granted. If the application is not granted,
the commission or board, as applicable, shall return the fees to the
applicant.
SECTION 126. Subchapter E, Chapter 12, Water Code, is
amended by adding Section 12.115 to read as follows:
Sec. 12.115. FEES FOR GROUNDWATER STUDIES AND
DETERMINATIONS. (a) A person who sells wholesale surface water or
groundwater, for uses other than domestic or livestock use, shall
annually report to the board the number of acre-feet sold. The
board may create forms for the reports.
(b) Retail and wholesale water supplies may include the fees
from this section in their cost of service. A person described by
Subsection (a) shall pay the board a fee to be set by the board, not
to exceed $1.60 per acre-foot sold, for:
(1) wholesale water sold in a year, measured from
September 1 through August 31 of the following year; and
(2) water sold in a water market subject to Chapter 14.
(c) The board shall use a fee collected under this section
to fund the scientific studies and duties required by Section
16.012 and to operate groundwater management authorities.
(d) The reports and fees required by this section are due
not later than October 1 of each year, from sales that occurred from
September 1 of the previous calendar year through August 31 of the
current calendar year.
SECTION 127. Section 13.144, Water Code, is amended to read
as follows:
Sec. 13.144. NOTICE OF WHOLESALE WATER SUPPLY CONTRACT. A
district or authority created under Section 52, Article III, or
Section 59, Article XVI, Texas Constitution, a retail public
utility, a wholesale water service, or other person providing a
retail public utility with a wholesale water supply shall provide
the utility commission, the board, and the commission with a
certified copy of any wholesale water supply contract with a retail
public utility within 30 days after the date of the execution of the
contract. The submission must include the amount of water being
supplied, term of the contract, consideration being given for the
water, purpose of use, location of use, source of supply, point of
delivery, limitations on the reuse of water, a disclosure of any
affiliated interest between the parties to the contract, and any
other condition or agreement relating to the contract.
SECTION 128. Section 13.148, Water Code, as added by
Chapter 234 (H.B. 252), Acts of the 83rd Legislature, Regular
Session, 2013, is amended to read as follows:
Sec. 13.148. WATER SHORTAGE REPORT. (a) A retail public
utility and each entity from which the utility is obtaining
wholesale water service for the utility's retail system shall
notify the commission and the board when the utility or entity is
reasonably certain that the water supply will be available for less
than 180 days.
(b) The commission shall adopt rules to implement this
section and prescribe the form and content of notice required under
this section.
SECTION 129. Section 13.381, Water Code, is amended to read
as follows:
Sec. 13.381. RIGHT TO JUDICIAL REVIEW; EVIDENCE. Any party
to a proceeding before the utility commission, the board, or the
commission is entitled to judicial review under the substantial
evidence rule.
SECTION 130. Subtitle B, Title 2, Water Code, is amended by
adding Chapter 14 to read as follows:
CHAPTER 14. WATER MARKETS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 14.001. DECLARATION OF POLICY. The state shall
develop, maintain, and make available to governmental and private
sector decision-makers, world class scientific modeling,
monitoring, and forecasting data for surface water and groundwater
availability in a manner that optimizes economic, social, and
environmental outcomes. The state's policy is to monetize surface
water and groundwater through water trading free markets that
establish true market value. Water shall be freely transported
across the state without unjustified governmental regulation,
other than regulation necessary to conserve the state's natural and
ecological resources, and to ensure environmental sustainability.
Sec. 14.002. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Water Development Board.
(2) "Commission" means the Texas Commission on
Environmental Quality.
(3) "Market" means a system for buying, selling, and
trading rights to water.
(4) "Railroad commission" means the Railroad
Commission of Texas.
(5) "Retail public utility" has the meaning assigned
by Section 13.002.
SUBCHAPTER B. WATER MARKETS AND CONSERVATION MEASURES
Sec. 14.021. STATEMENT OF POLICY. (a) It is the policy of
this state, to the fullest extent possible, to promote and
encourage private capital and resources to be invested, including
in public-private partnerships, to develop water, including the
construction of reservoirs, pipelines, treatment facilities,
aquifer recharge facilities, desalination facilities, and other
water development assets or technologies.
(b) The commission is encouraged to promptly review new
technologies for water development, treatment, and transportation.
Sec. 14.022. MARKETS. (a) The board shall administer water
markets for surface water and groundwater in the state.
(b) The board may contract with third parties to administer
one or more markets.
Sec. 14.023. PRIVATELY FUNDED PROJECTS. (a)
Notwithstanding any other provision of this code, for a water
development project that is fully or partially funded by private
capital, an agency or political subdivision may not require the
project to be listed on the state water plan or approved by a
regional planning group as a condition to receive a permit or other
authorization for the use of water.
(b) A political subdivision, public water supply
corporation, district, or authority may enter into an agreement
with one or more private entities to develop water and wastewater
projects, including agreements in which one or more private
entities own or operate water or wastewater development,
transportation, treatment, processing, distribution, or collection
facilities.
Sec. 14.024. RECYCLING FRACKING WATERS. A contract entered
into between landowners and oil and gas exploration companies may
not require the use of non-brackish water for fracking and other oil
and gas exploration.
Sec. 14.025. CONSERVATION PRICING. A retail public utility
shall, for its retail water rates, adopt a progressive pricing
scheme to encourage water conservation.
Sec. 14.026. SMALLER RETAIL WATER UTILITIES. A wholesale
water provider that supplies a retail public utility that provides
potable water service to a customer base of 100,000 or fewer
customers shall offer that retail public utility a renewal of its
wholesale water contract for a period of not less than 20 years.
The wholesale water provider may not increase the water rates
charged to the retail utility by more than 20 percent of the
previous year's rates of the expiring contract for the first five
years of the new contract, and, after the first five years may not
increase the rate charged by more than 20 percent for each
subsequent five-year period.
SECTION 131. Section 15.326, Water Code, is amended to read
as follows:
Sec. 15.326. PREFERENCES. The board shall give political
subdivisions a preferential right, but not an exclusive right, to
purchase, acquire, or lease facilities and to purchase water from
facilities. Preferences shall be given in these respects in accord
with the provisions of Section 11.123 [of this code. The board and
the commission shall coordinate their efforts to meet these
objectives and to assure that the public water of this state, which
is held in trust for the use and benefit of the public, will be
conserved, developed, and utilized in the greatest practicable
measure for the public welfare].
SECTION 132. Section 15.7031(c), Water Code, is amended to
read as follows:
(c) The dedication of any water rights placed in trust must
be reviewed and approved by the board [commission], in consultation
with the commission [board] and the Parks and Wildlife Department.
In addition, the Department of Agriculture may provide input to the
board [commission], as appropriate, during the review and approval
process for dedication of water rights.
SECTION 133. Sections 15.704(a) and (b), Water Code, are
amended to read as follows:
(a) A water right may be deposited in the water bank for an
initial term of up to 10 years, unless otherwise held in the Texas
Water Trust as established under Section 15.7031 [of this code],
during which time the water right is exempt from cancellation by the
board [commission] under the terms of Subchapter E of Chapter 11 [of
this code]. A water right is exempt from cancellation under this
subsection only once even if it has been transferred or
redeposited.
(b) The board [commission] may not bring a cancellation
action under Subchapter E of Chapter 11 [of this code] for a 10-year
period following board [commission] approval of any necessary
actions relating to a water right which has been transferred while
on deposit in the water bank.
SECTION 134. Section 15.706, Water Code, is amended to read
as follows:
Sec. 15.706. REPORTS. The [commission and the] board shall
provide ready access by the commission [other agency] through
manual or computer capabilities to all water rights permits, final
water rights decisions, applications, amendments, contracts,
computerized files, computer programs, and other information
related to water rights and to the operation of the water bank. The
board [commission] shall provide the commission [board] with all
notices of proposed water rights actions.
SECTION 135. Sections 16.012(b), (c), (g), (h), (i), (j),
(k), (l), and (m), Water Code, are amended to read as follows:
(b) The executive administrator shall:
(1) determine suitable locations for future water
facilities, including reservoir sites;
(2) determine suitable, cost-effective water supply
alternatives on a regional basis, including voluntary means of
encouraging aggressive water conservation;
(3) locate land best suited for irrigation;
(4) make estimates of the cost of proposed irrigation
works and the improvement of reservoir sites;
(5) examine and survey reservoir sites;
(6) monitor the effects of fresh water inflows upon
the bays and estuaries of Texas;
(7) monitor instream flows;
(8) lead a statewide effort, in coordination with
federal, state, and local governments, institutions of higher
education, and other interested parties, to develop a network for
collecting and disseminating water resource-related information
that is sufficient to support assessment of ambient water
conditions statewide;
(9) make recommendations for optimizing the
efficiency and effectiveness of water resource data collection and
dissemination as necessary to ensure that basic water resource data
are maintained and available for Texas; [and]
(10) make basic data and summary information developed
under this subsection accessible to state agencies and other
interested persons; and
(11) assist groundwater management authorities in
developing desired future conditions and groundwater availability
for the aquifers of this state.
(c) In performing the duties required under Subdivisions
(1), (4), (5), (6), and (7) of Subsection (b), the executive
administrator shall consider advice from the Parks and Wildlife
Department and the commission. In addition, the Department of
Agriculture may provide advice to the executive administrator,
where appropriate, regarding any of the duties to be performed
under Subsection (b).
(g) The board [No later than December 31, 1999, the
commission] shall maintain a [obtain or develop an updated] water
availability model for each [six] river basin in this state and
shall update the models as the board determines necessary [basins
as determined by the commission. The commission shall obtain or
develop an updated water availability model for all remaining river
basins no later than December 31, 2001].
(h) [Not later than December 31, 2003, the commission shall
obtain or develop an updated water supply model for the Rio Grande.]
Recognizing that the Rio Grande is an international river touching
on three states of the United States and five states of the United
Mexican States and draining an area larger than the State of Texas,
the model for the Rio Grande basin shall encompass to the extent
practicable the significant water demands within the watershed of
the river as well as the unique geology and hydrology of the region.
The board [commission] may collect data from all jurisdictions that
allocate the waters of the river, including jurisdictions outside
this state.
(i) Within 90 days of completing a water availability model
for a river basin, the board [commission] shall provide to all
holders of existing permits, certified filings, and certificates of
adjudication in that river basin the projected amount of water that
would be available during a drought of record, for the subsequent
calendar quarter.
(j) Within 90 days of completing a water availability model
for a river basin, the board [commission] shall provide to each
regional water planning group created under Section 16.053 [of this
code] in that river basin the projected amount of water that would
be available if cancellation procedures were instigated under the
provisions of Subchapter E, Chapter 11[, of this code].
(k) Within 90 days of completing a water availability model
for a river basin, the board [commission], in coordination with the
Parks and Wildlife Department and with input from the Department of
Agriculture and the commission, where appropriate, shall determine
the potential impact of reusing municipal and industrial effluent
on existing water rights, instream uses, and freshwater inflows to
bays and estuaries. Within 30 days of making this determination,
the board [commission] shall provide the projections to the
commission [board] and each regional water planning group created
under Section 16.053 [of this code] in that river basin.
(l) The executive administrator shall obtain or develop
groundwater availability models for major and minor aquifers in
coordination with groundwater management authorities, groundwater
conservation districts, and regional water planning groups created
under Section 16.053 that overlie the aquifers. [Modeling of major
aquifers shall be completed not later than October 1, 2004.] On
completing a groundwater availability model for an aquifer, the
executive administrator shall provide the model to each groundwater
management authority, groundwater conservation district, and each
regional water planning group created under Section 16.053
overlying that aquifer.
(m) The executive administrator may conduct surveys of
entities using groundwater and surface water for municipal,
industrial, power generation, or mining purposes at intervals
determined appropriate by the executive administrator to gather
data to be used for long-term water supply planning. Recipients of
the survey shall complete and return the survey to the executive
administrator. A person who fails to timely complete and return the
survey is not eligible for funding from the board for board programs
and is ineligible to obtain permits, permit amendments, or permit
renewals from the board [commission] under Chapter 11. A person who
fails to complete and return the survey commits an offense that is
punishable as a Class C misdemeanor. This subsection does not apply
to survey information regarding windmills used for domestic and
livestock use.
SECTION 136. Sections 16.053(c), (e), (p), (p-2), (p-3),
and (p-4), Water Code, are amended to read as follows:
(c) No later than 60 days after the designation of the
regions under Subsection (b), the board shall designate
representatives within each regional water planning area to serve
as the initial coordinating body for planning. The initial
coordinating body may then designate additional representatives to
serve on the regional water planning group. The initial
coordinating body shall designate additional representatives if
necessary to ensure adequate representation from the interests
comprising that region, including the public, counties,
municipalities, industries, agricultural interests, environmental
interests, small businesses, electric generating utilities, river
authorities, water districts, and water utilities. The regional
water planning group shall maintain adequate representation from
those interests. In addition, the groundwater conservation
districts located in [each management area, as defined by Section
36.001, located in] the regional water planning area shall appoint
one representative of a groundwater conservation district located
in the [management area and in the] regional water planning area to
serve on the regional water planning group. In addition, one
representative from each groundwater management authority located
in the regional planning group shall serve on the regional planning
group. In addition, representatives of the board, the Parks and
Wildlife Department, the Department of Agriculture, and the State
Soil and Water Conservation Board shall serve as ex officio members
of each regional water planning group.
(e) Each regional water planning group shall submit to the
development board a regional water plan that:
(1) is consistent with the guidance principles for the
state water plan adopted by the development board under Section
16.051(d);
(2) provides information based on data provided or
approved by the development board in a format consistent with the
guidelines provided by the development board under Subsection (d);
(2-a) is consistent with the desired future conditions
adopted under Section 36.108 for the relevant aquifers located in
the regional water planning area as of the most recent deadline for
the board to adopt the state water plan under Section 16.051 or, at
the option of the regional water planning group, established
subsequent to the adoption of the most recent plan; [provided,
however, that if no groundwater conservation district exists within
the area of the regional water planning group, the regional water
planning group shall determine the supply of groundwater for
regional planning purposes; the Texas Water Development Board shall
review and approve, prior to inclusion in the regional water plan,
that the groundwater supply for the regional planning group without
a groundwater conservation district in its area is physically
compatible, using the board's groundwater availability models,
with the desired future conditions adopted under Section 36.108 for
the relevant aquifers in the groundwater management area that are
regulated by groundwater conservation districts;]
(3) identifies:
(A) each source of water supply in the regional
water planning area, including information supplied by the
executive administrator on the amount of modeled available
groundwater in accordance with the guidelines provided by the
development board under Subsections (d) and (f);
(B) factors specific to each source of water
supply to be considered in determining whether to initiate a
drought response;
(C) actions to be taken as part of the response;
and
(D) existing major water infrastructure
facilities that may be used for interconnections in the event of an
emergency shortage of water;
(4) has specific provisions for water management
strategies to be used during a drought of record;
(5) includes but is not limited to consideration of
the following:
(A) any existing water or drought planning
efforts addressing all or a portion of the region and potential
impacts on public health, safety, or welfare in this state;
(B) approved groundwater management authority
[conservation district] management plans and other plans submitted
under Section 16.054;
(C) all potentially feasible water management
strategies, including but not limited to improved conservation,
reuse, and management of existing water supplies, conjunctive use,
acquisition of available existing water supplies, and development
of new water supplies;
(D) protection of existing water rights in the
region;
(E) opportunities for and the benefits of
developing regional water supply facilities or providing regional
management of water supply facilities;
(F) appropriate provision for environmental
water needs and for the effect of upstream development on the bays,
estuaries, and arms of the Gulf of Mexico and the effect of plans on
navigation;
(G) [provisions in Section 11.085(k)(1) if
interbasin transfers are contemplated;
[(H)] voluntary transfer of water within the
region using, but not limited to, regional water banks, sales,
leases, options, subordination agreements, and financing
agreements;
(H) [(I)] emergency transfer of water under
Section 11.139, including information on the part of each permit,
certified filing, or certificate of adjudication for nonmunicipal
use in the region that may be transferred without causing
unreasonable damage to the property of the nonmunicipal water
rights holder; and
(I) [(J)] opportunities for and the benefits of
developing large-scale desalination facilities for:
(i) marine seawater that serve local or
regional entities; and
(ii) seawater or brackish groundwater that
serve local or regional brackish groundwater production zones
identified and designated under Section 16.060(b)(5);
(6) identifies river and stream segments of unique
ecological value and sites of unique value for the construction of
reservoirs that the regional water planning group recommends for
protection under Section 16.051;
(7) assesses the impact of the plan on unique river and
stream segments identified in Subdivision (6) if the regional water
planning group or the legislature determines that a site of unique
ecological value exists;
(8) describes the impact of proposed water projects on
water quality; and
(9) includes information on:
(A) projected water use and conservation in the
regional water planning area; and
(B) the implementation of state and regional
water plan projects, including water conservation strategies,
necessary to meet the state's projected water demands.
(p) If a groundwater management authority [conservation
district] files a petition with the development board stating that
a conflict requiring resolution may exist between the authority's
[district's] approved management plan developed under Section
36.1071 and an approved state water plan, the development board
shall provide technical assistance to and facilitate coordination
between the district and the involved region to resolve the
conflict. Not later than the 45th day after the date the
groundwater management authority [conservation district] files a
petition with the development board, if the conflict has not been
resolved, the authority [district] and the involved region shall
mediate the conflict. The authority [district] and the involved
region 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 authority [district]
and the involved region cannot resolve the conflict through
mediation, the development board shall resolve the conflict not
later than the 60th day after the date the mediation is completed as
provided by Subsections (p-1) and (p-2).
(p-2) If the development board determines that resolution
of the conflict requires a revision of the authority's [district's]
approved groundwater conservation [district] management plan, the
development board shall provide information to the authority
[district]. The groundwater management authority [district] shall
prepare any revisions to its plan based on the information provided
by the development board and shall hold, after notice, at least one
public hearing at some central location readily accessible to the
public within the authority [district]. The groundwater management
authority [district] shall consider all public and development
board comments, prepare, revise, and adopt its plan, and submit the
revised plan to the development board.
(p-3) If the groundwater management authority [conservation
district] disagrees with the decision of the development board
under Subsection (p), the authority [district] may appeal the
decision 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.
(p-4) On the request of the involved region or groundwater
management authority [conservation district], the development
board shall include discussion of the conflict and its resolution
in the state water plan that the development board provides to the
governor, the lieutenant governor, and the speaker of the house of
representatives under Section 16.051(e).
SECTION 137. Section 16.055(j), Water Code, is amended to
read as follows:
(j) The board may enforce a violation of [notify the
commission if the board determines that a person or entity has
violated Subsection (h). Notwithstanding Section 7.051(b), a
violation of] Subsection (h) [is enforceable] in the same manner as
provided by Chapter 7 for the enforcement by the commission of a
violation of a provision of this code within the commission's
jurisdiction or of a rule adopted by the commission under a
provision of this code within the commission's jurisdiction.
SECTION 138. Section 16.059(e), Water Code, is amended to
read as follows:
(e) Results of studies completed under this section shall be
considered by the board [commission] in its review of any
management plan, water right, or interbasin transfer.
SECTION 139. Section 16.196, Water Code, is amended to read
as follows:
Sec. 16.196. PREFERENCES. The board shall give political
subdivisions a preferential right, but not an exclusive right, to
purchase, acquire, or lease facilities and to purchase water from
facilities. Preferences shall be given in these respects in accord
with the provisions of Section 11.123 [of this code] relating to
preferences in the appropriation and use of state water. [The board
and the commission shall coordinate their efforts to meet these
objectives and to assure that the public water of this state, which
is held in trust for the use and benefit of the public, will be
conserved, developed, and utilized in the greatest practicable
measure for the public welfare.]
SECTION 140. Section 16.236(h), Water Code, is amended to
read as follows:
(h) Subsection (a) [of this section] does not apply to:
(1) any dam, reservoir, or canal system associated
with a water right issued or recognized by the board [commission];
(2) dams authorized by Section 11.142 [of this code];
(3) a levee or other improvement within the corporate
limits of a city or town provided: (a) plans for the construction
or maintenance or both must be approved by the city or town as a
condition precedent to starting the project and (b) the city or town
requires that such plans be in substantial compliance with rules
and standards adopted by the commission;
(4) a levee or other improvement within the boundaries
of any political subdivision which has qualified for the National
Flood Insurance Program as authorized by the National Flood
Insurance Act of 1968 (42 U.S.C. [(Title 42, U.S.C.,] Sections
4001-4127) provided: (a) plans for the construction or
maintenance or both must be approved by the political subdivision
which is participating in the national flood insurance program as a
condition precedent to starting the project and (b) the political
subdivision requires that such plans be in substantial compliance
with rules and standards adopted by the commission;
(5) projects implementing soil and water conservation
practices set forth in a conservation plan with a landowner or
operator and approved by the governing board of a soil and water
conservation district organized under Chapter 201, Agriculture
Code [the State Soil Conservation Law, as amended (Article 165a-4,
Vernon's Texas Civil Statutes)], provided that the governing board
finds the practices do not significantly affect stream flooding
conditions on, along, or near a state stream; or
(6) any levee or other improvement constructed outside
of the 100-year floodway. For the purposes of this section,
"100-year floodway" is defined as the channel of a stream and the
adjacent land areas that must be reserved in order to discharge the
100-year flood without cumulatively increasing the water surface
elevation more than one foot above the 100-year flood elevation
prior to encroachment.
SECTION 141. Section 16.237(a), Water Code, is amended to
read as follows:
(a) If a person violates a commission rule or order adopted
under Section 16.236 [of this code], the commission may assess an
administrative penalty against that person in the manner [as]
provided by Section 11.0842 for a violation of a rule or order
adopted under Chapter 11. The penalty may be in an amount not to
exceed $1,000 for each day the person is in violation of the rule or
order. Each day a violation continues may be considered a separate
violation for purposes of penalty assessment [of this code].
SECTION 142. Section 18.001, Water Code, is amended by
amending Subdivision (1) and adding Subdivision (1-a) to read as
follows:
(1) "Board" means the Texas Water Development Board.
(1-a) "Commission" means the Texas Commission on
Environmental Quality.
SECTION 143. Sections 18.003(c), (e), (h), (i), and (j),
Water Code, are amended to read as follows:
(c) A person who diverts and uses state water that consists
of marine seawater under a permit required by Subsection (a) or as
authorized by Subsection (b) must determine the total dissolved
solids concentration of the seawater at the water source by monthly
sampling and analysis and provide the data collected to the board
[commission]. A person may not begin construction of a facility for
the diversion of marine seawater without obtaining a permit until
the person has provided data to the board [commission] based on the
analysis of samples taken at the water source over a period of at
least one year demonstrating that Subsection (a)(2) does not apply.
A person who has begun construction of a facility for the diversion
of marine seawater without obtaining a permit because the person
has demonstrated that Subsection (a)(2) does not apply is not
required to obtain a permit for the facility if the total dissolved
solids concentration of the seawater at the water source
subsequently changes so that Subsection (a)(2) applies.
(e) The board [commission] shall adopt rules providing an
expedited procedure for acting on an application for a permit
required by Subsection (a). The rules must provide for notice, an
opportunity for the submission of written comment, and an
opportunity for a contested case hearing regarding board
[commission] actions relating to an application for a permit.
(h) The board [commission] by rule shall prescribe
reasonable measures to minimize impingement and entrainment.
(i) The Parks and Wildlife Department and the General Land
Office jointly shall conduct a study to identify zones in the Gulf
of Mexico that are appropriate for the diversion of marine
seawater, taking into account the need to protect marine organisms.
Not later than September 1, 2018, the Parks and Wildlife Department
and the General Land Office shall submit a report on the results of
the study to the board [commission]. The report must include
recommended diversion zones for designation by the board
[commission] and recommendations for the number of points from
which, and the rate at which, a facility may divert marine
seawater. Not later than September 1, 2020, the board [commission]
by rule shall designate appropriate diversion zones. A diversion
zone may be contiguous to, be the same as, or overlap a discharge
zone. The point or points from which a facility may divert marine
seawater must be located in a diversion zone designated by the board
[commission] under rules adopted under this subsection if:
(1) the facility is authorized by a permit as required
by Subsection (a) issued after the rules are adopted; or
(2) the facility is exempt under Subsection (b) from
the requirement of a permit and construction of the facility begins
after the rules are adopted.
(j) Until the board [commission] adopts rules under
Subsection (i), a person must consult the Parks and Wildlife
Department and the General Land Office regarding the point or
points from which a facility the person proposes to construct may
divert marine seawater before submitting an application for a
permit for the facility if Subsection (a) applies or before
beginning construction of the facility if Subsection (b) applies.
SECTION 144. Sections 18.004(a) and (b), Water Code, are
amended to read as follows:
(a) With prior authorization granted under rules prescribed
by the board [commission], a person may use the bed and banks of any
flowing natural stream in this state or a lake, reservoir, or other
impoundment in this state to convey marine seawater that has been
treated so as to meet standards that are at least as stringent as
the water quality standards applicable to the receiving stream or
impoundment adopted by the commission.
(b) The board [commission] shall provide for notice and an
opportunity for the submission of written comment but may not
provide an opportunity for a contested case hearing regarding board
[commission] actions relating to an application for an
authorization under this section to use the bed and banks of a
flowing natural stream to convey treated marine seawater. The
board [commission] shall provide for notice, an opportunity for the
submission of written comment, and an opportunity for a contested
case hearing regarding board [commission] actions relating to an
application for an authorization under this section to use a lake,
reservoir, or other impoundment to convey treated marine seawater.
SECTION 145. Section 26.0291(a), Water Code, is amended to
read as follows:
(a) An annual water quality fee is imposed on:
(1) each wastewater discharge permit holder,
including the holder of a permit issued under Section 18.005, for
each wastewater discharge permit held; and
(2) each user of water in proportion to the user's
water right, through permit or contract, as reflected in the
board's [commission's] records, provided that the board
[commission] by rule shall ensure that no fee shall be assessed for
the portion of a municipal or industrial water right directly
associated with a facility or operation for which a fee is assessed
under Subdivision (1) [of this subsection].
SECTION 146. Chapter 35, Water Code, is amended by
designating Sections 35.001 through 35.020 as Subchapter A and
adding a subchapter heading to read as follows:
SUBCHAPTER A. GENERAL PROVISIONS
SECTION 147. Section 35.001, Water Code, is amended to read
as follows:
Sec. 35.001. PURPOSE. In order to provide for the
conservation, preservation, protection, recharging, and prevention
of waste of the 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 management authorities shall [areas may]
be created as provided by this chapter.
SECTION 148. Section 35.002(11), Water Code, is amended to
read as follows:
(11) "Groundwater management authority [Management
area]" means a state agency created under Subchapter B [an area
designated and delineated by the Texas Water Development Board as
an area suitable for management of groundwater resources].
SECTION 149. Section 35.020, Water Code, is amended to read
as follows:
Sec. 35.020. PUBLIC PARTICIPATION IN GROUNDWATER
MANAGEMENT PROCESS. It is the policy of the state to encourage
public participation in the groundwater management process in areas
within a groundwater management authority [area] not represented by
a groundwater conservation district.
SECTION 150. Chapter 35, Water Code, is amended by adding
Subchapter B to read as follows:
SUBCHAPTER B. GROUNDWATER MANAGEMENT AUTHORITIES
Sec. 35.051. POLICY. Groundwater management authorities
are created to assist the Texas Water Development Board in
determining desired future conditions and groundwater availability
of the state's aquifers.
Sec. 35.052. CREATION. The Texas Water Development Board
shall designate a groundwater management authority for each of the
state's major aquifers that the board identifies as having
reasonably accessible groundwater.
Sec. 35.053. DESIRED FUTURE CONDITIONS. A groundwater
management authority shall determine desired future conditions and
groundwater availability for each major aquifer and each minor
aquifer within its territory. If a minor aquifer is within more
than one groundwater management authority territory, the Texas
Water Development Board shall designate one groundwater management
authority to manage the minor aquifer.
Sec. 35.054. BOARD OF DIRECTORS. (a) Each groundwater
management authority shall be governed by a board of seven
directors appointed by the governor, with the advice and consent of
the senate, to serve for six-year staggered terms. Each member of
the board of directors must reside within the groundwater
management authority's territory, and shall be selected from
different geographic areas from within the authority's territory.
(b) A member of the board of directors is entitled to the
same per diem compensation and reimbursement of reasonable travel
expenses as a member of the board of directors of a river authority.
Sec. 35.055. POWERS AND DUTIES. A groundwater management
authority may:
(1) limit groundwater production based on tract size
or the spacing of wells;
(2) conserve, preserve, protect, and recharge
groundwater;
(3) control subsidence;
(4) prevent degradation of water quality; and
(5) prevent waste of groundwater.
Sec. 35.056. RULES. (a) Groundwater management
authorities may adopt such rules as may be necessary to govern their
operations and any duties or powers granted to them in accordance
with Chapter 2001, Government Code.
(b) In adopting a rule under this section, a groundwater
management authority shall:
(1) consider all groundwater uses and needs;
(2) develop rules that are fair and impartial;
(3) consider the groundwater ownership and rights
described by Section 36.002;
(4) consider the public interest in:
(A) conservation, preservation, protection,
recharging, and prevention of waste of groundwater, and of
groundwater reservoirs or their subdivisions; and
(B) controlling subsidence caused by withdrawal
of groundwater from those groundwater reservoirs or their
subdivisions, consistent with the objectives of Section 59, Article
XVI, Texas Constitution;
(5) consider the goals developed as part of the
authority's management plan under Section 36.1071; and
(6) not discriminate between land that is irrigated
for production and land that was irrigated for production and
enrolled or participating in a federal conservation program.
Sec. 35.057. ENFORCEMENT; PENALTIES. (a) A groundwater
management authority may enforce this chapter, Chapter 36, and its
rules against a person by injunction, mandatory injunction, or
other appropriate remedy in a court of competent jurisdiction.
(b) The groundwater management authority's board by rule
may set reasonable civil penalties against a person for breach of
any rule of the authority not to exceed $10,000 per day per
violation, and each day of a continuing violation constitutes a
separate violation.
(c) A penalty under this section is in addition to any other
penalty provided by law and may be enforced against a person by
complaints filed in the appropriate court of jurisdiction in the
county in which the groundwater management authority's principal
office or meeting place is located.
(d) In an enforcement action by a groundwater management
authority against a person that is a governmental entity for a
violation of authority rules, the limits on the amount of fees,
costs, and penalties that an authority may impose under Section
36.122, 36.205, or this section, or under a special law governing a
district operating under Chapter 36, constitute a limit of
liability of the governmental entity for the violation. This
subsection may not be construed to prohibit the recovery by an
authority of fees and costs in an action against any person that is
a governmental entity.
(e) A groundwater management authority may, in its sole
discretion, order the limitation or cessation of groundwater
production for any purpose other than for domestic and livestock
use in order to ensure the aquifer's water volume does not fall
below the minimum water volume established by Section
36.1071(e)(3)(H).
(f) To assist in enforcement efforts, a groundwater
management authority may delegate enforcement authority under this
section to one or more groundwater conservation districts to act on
the authority's behalf under the terms as the authority may
consider appropriate. The authority may rescind or modify the
delegation at any time.
Sec. 35.058. COSTS. (a) The costs of operation of the
groundwater management authorities shall be funded by the Texas
Water Development Board from the fees assessed in Section 12.115.
(b) A groundwater management authority may, by rule, set and
charge other reasonable fees for administrative acts of the
authority, and may use those fees for any purpose of the authority.
Sec. 35.059. CONFLICTS OF LAW. To the extent there is any
conflict between a rule adopted by a groundwater conservation
district and a groundwater management authority, the rules of the
groundwater management authority control.
Sec. 35.060. SUITS. A groundwater management authority may
sue and be sued. A person affected by and dissatisfied with any
rule or order made by an authority, including an appeal of a
decision on a permit application, may file a suit against the
authority to challenge the validity of the law, rule, or order.
Venue is in state district court of Travis County.
Sec. 35.061. MEETINGS. Meetings of the board of directors
shall be governed by Chapter 551, Government Code.
Sec. 35.062. STAFF. The authority's board may hire a
general manager and other staff and outside consultants as
necessary.
SECTION 151. Sections 36.001(29) and (30), Water Code, are
amended to read as follows:
(29) "Groundwater management authority" has the
meaning assigned by Section 35.002 ["Evidence of historic or
existing use" means evidence that is material and relevant to a
determination of the amount of groundwater beneficially used
without waste by a permit applicant during the relevant time period
set by district rule that regulates groundwater based on historic
use. Evidence in the form of oral or written testimony shall be
subject to cross-examination. The Texas Rules of Evidence govern
the admissibility and introduction of evidence of historic or
existing use, except that evidence not admissible under the Texas
Rules of Evidence may be admitted if it is of the type commonly
relied upon by reasonably prudent persons in the conduct of their
affairs].
(30) "Desired future condition" means a quantitative
description, adopted in accordance with Section 36.108, of the
desired condition of the groundwater resources in an aquifer [a
management area] at one or more specified future times.
SECTION 152. 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 management authorities created as provided by Chapter
35 and groundwater conservation districts created as provided by
this chapter are the state's preferred method of groundwater
management in order to protect property rights, balance the
conservation and development of groundwater to meet the needs of
this state, and use the best available science in the conservation
and development of groundwater through rules developed, adopted,
and promulgated by a district in accordance with [the provisions
of] this chapter or by a groundwater management authority in
accordance with Chapter 35 and this chapter.
SECTION 153. Section 36.002(d), Water Code, is amended to
read as follows:
(d) This section does not:
(1) prohibit a district or groundwater management
authority, as applicable, from limiting or prohibiting the drilling
of a well by a landowner for failure or inability to comply with
minimum well spacing or tract size requirements adopted by the
groundwater management authority [district];
(2) affect the ability of a district or groundwater
management authority, as applicable, to regulate groundwater
production as authorized under Section 36.113, 36.116, or 36.122 or
otherwise under this chapter or a special law governing a district;
or
(3) require that a rule adopted by a district or
groundwater management authority, as applicable, allocate to each
landowner a proportionate share of available groundwater for
production from the aquifer based on the number of acres owned by
the landowner.
SECTION 154. Section 36.012(c), Water Code, is amended to
read as follows:
(c) The boundaries of a district must be coterminous with or
inside the boundaries of a groundwater management authority [area]
or a priority groundwater management area.
SECTION 155. Sections 36.015(b), (c), and (f), Water Code,
are amended to read as follows:
(b) The commission may not certify a petition if the
commission finds that the proposed district cannot be adequately
funded to carry out its purposes based on the financial information
provided in the petition under Section 36.013(c)(6) or that the
boundaries of the proposed district do not provide for the
effective management of the groundwater resources. The commission
shall give preference to boundary lines that are coterminous with
those of a groundwater management authority [area] but may also
consider boundaries along existing political subdivision
boundaries if such boundaries would facilitate district creation
and confirmation.
(c) If a petition proposes the creation of a district in an
area, in whole or in part, that has not been designated as a
groundwater management authority [area], the commission shall
provide notice to the Texas Water Development Board. On the receipt
of notice from the commission, the Texas Water Development Board
shall initiate the process of designating or expanding a
groundwater management authority [area] for the area of the
proposed district not included in a management authority [area].
The commission may not certify the petition until the Texas Water
Development Board has adopted a rule whereby the boundaries of the
proposed district are coterminous with or inside the boundaries of
a management authority [area].
(f) Refusal by the commission to certify a petition to
create a district does not invalidate or affect the designation of
any groundwater management authority [area].
SECTION 156. Section 36.063(b), Water Code, is amended to
read as follows:
(b) At least 10 days before a hearing under Section
36.108(d-2) [or a meeting at which a district will adopt a desired
future condition under Section 36.108(d-4)], the board of each
district included in the applicable groundwater management
authority must post notice that includes:
(1) the proposed desired future conditions and a list
of any other agenda items;
(2) the date, time, and location of the meeting or
hearing;
(3) the name, telephone number, and address of the
person to whom questions or requests for additional information may
be submitted;
(4) the names of the other districts in the
groundwater [district's] management authority [area]; and
(5) information on how the public may submit comments.
SECTION 157. Sections 36.101(a) and (a-1), Water Code, are
amended to read as follows:
(a) A district may make and enforce rules, including rules
[limiting groundwater production based on tract size or the spacing
of wells,] to provide for conserving, preserving, protecting, and
recharging of the groundwater or of a groundwater reservoir or its
subdivisions in order to control subsidence, prevent degradation of
water quality, or prevent waste of groundwater and to carry out the
powers and duties provided by this chapter. A district may not
adopt rules regarding the spacing of wells, the withdrawal of water
from wells, or water exports, except fees for water exported from a
district [In adopting a rule under this chapter, a district shall:
[(1) consider all groundwater uses and needs;
[(2) develop rules that are fair and impartial;
[(3) consider the groundwater ownership and rights
described by Section 36.002;
[(4) consider the public interest in conservation,
preservation, protection, recharging, and prevention of waste of
groundwater, and of groundwater reservoirs or their subdivisions,
and in controlling subsidence caused by withdrawal of groundwater
from those groundwater reservoirs or their subdivisions,
consistent with the objectives of Section 59, Article XVI, Texas
Constitution;
[(5) consider the goals developed as part of the
district's management plan under Section 36.1071; and
[(6) not discriminate between land that is irrigated
for production and land that was irrigated for production and
enrolled or participating in a federal conservation program].
(a-1) Any rule of a district or groundwater management
authority that discriminates between land that is irrigated for
production and land that was irrigated for production and enrolled
or participating in a federal conservation program is void.
SECTION 158. Sections 36.105(a), (d), and (e), Water Code,
are amended to read as follows:
(a) A district or groundwater management authority may
exercise the power of eminent domain to acquire by condemnation a
fee simple or other interest in property if that property interest
is:
(1) within the boundaries of the district or
groundwater management authority; and
(2) necessary for conservation purposes, including
monitoring, recharge, and reuse.
(d) In a condemnation proceeding brought by a district or
groundwater management authority, the district or groundwater
management authority is not required to pay in advance or give bond
or other security for costs in the trial court, to give bond for the
issuance of a temporary restraining order or a temporary
injunction, or to give bond for costs or supersedeas on an appeal or
writ of error.
(e) In exercising the power of eminent domain, if the
district or groundwater management authority requires relocating,
raising, lowering, rerouting, changing the grade, or altering the
construction of any railroad, highway, pipeline, or electric
transmission or distribution, telegraph, or telephone lines,
conduits, poles, or facilities, the district or authority must bear
the actual cost of relocating, raising, lowering, rerouting,
changing the grade, or altering the construction to provide
comparable replacement without enhancement of facilities after
deducting the net salvage value derived from the old facility.
SECTION 159. Section 36.106, Water Code, is amended to read
as follows:
Sec. 36.106. SURVEYS. A district or groundwater management
authority may make surveys of the groundwater reservoir or
subdivision and surveys of the facilities in order to determine the
quantity of water available for production and use and to determine
the improvements, development, and recharging needed by a reservoir
or its subdivision.
SECTION 160. Section 36.107, Water Code, is amended to read
as follows:
Sec. 36.107. RESEARCH. A district or groundwater
management authority may carry out any research projects deemed
necessary by its [the] board.
SECTION 161. Section 36.1071, Water Code, is amended to
read as follows:
Sec. 36.1071. MANAGEMENT PLAN. (a) Following notice and
hearing, the groundwater management authority, with the assistance
and input from all districts within the authority's territory
[district] shall, in coordination with surface water management
entities on a regional basis, develop a management plan that
addresses the following management goals, as applicable:
(1) providing the most efficient use of groundwater;
(2) controlling and preventing waste of groundwater;
(3) controlling and preventing subsidence;
(4) addressing conjunctive surface water management
issues;
(5) addressing natural resource issues;
(6) addressing drought conditions;
(7) addressing conservation, recharge enhancement,
rainwater harvesting, precipitation enhancement, or brush control,
where appropriate and cost-effective; and
(8) addressing the desired future conditions adopted
[by the district] under Section 36.108.
(b) The management plan, or any amendments to the plan,
shall be developed using the groundwater management authority's
[district's] best available data and forwarded to the regional
water planning group for use in their planning process.
(c) The commission and the Texas Water Development Board
shall provide technical assistance [to a district] in the
development of the management plan required under Subsection (a)
which may include, if requested by the groundwater management
authority [district], a preliminary review and comment on the plan
prior to final approval by the groundwater management authority
[board]. If such review and comment by the commission is requested,
the commission shall provide comment not later than 30 days from the
date the request is received.
(d) The commission and the Texas Water Development Board
shall provide technical assistance to a district or groundwater
management authority during its initial operational phase. If
requested by a district or a groundwater management authority, the
Texas Water Development Board shall provide training [train the
district] on basic data collection methodology and provide
technical assistance [to districts].
(e) In the management plan described under Subsection (a),
the groundwater management authority [district] shall:
(1) identify the performance standards and management
objectives under which the groundwater management authority
[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;
(3) include estimates of the following:
(A) modeled available groundwater in the
groundwater management authority [district] based on the desired
future condition established under Section 36.108;
(B) the amount of groundwater being used within
the groundwater management authority [district] on an annual basis;
(C) the annual amount of recharge from
precipitation, if any, to the groundwater resources within the
groundwater management authority [district];
(D) for each aquifer, the annual volume of water
that discharges from the aquifer to springs and any surface water
bodies, including lakes, streams, and rivers;
(E) the annual volume of flow into and out of the
groundwater management authority [district] within each aquifer
and between aquifers in the groundwater management authority
[district], if a groundwater availability model is available;
(F) the projected surface water supply in the
groundwater management authority [district] according to the most
recently adopted state water plan or water availability model;
[and]
(G) the projected total demand for water in the
groundwater management authority [district] according to the most
recently adopted state water plan; and
(H) the minimum amount of groundwater necessary
to sustain six months of domestic and livestock use during the most
recent drought of record; and
(4) consider the water supply needs and water
management strategies included in the adopted state water plan.
(f) The groundwater management authority [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 groundwater management authority or 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 groundwater management
authority's or district's board; however, the groundwater
management authority [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. The
district or groundwater management authority may accept
applications for permits under Section 36.113, provided the
district or groundwater management authority does not act on any
such application until the groundwater management authority's
[district's] management plan is approved as provided in Section
36.1072.
(g) The groundwater management authority [district] shall
adopt amendments to the management plan as necessary. Amendments
to the management plan shall be adopted after notice and hearing and
shall otherwise comply with the requirements of this section.
(h) In developing its management plan, the groundwater
management authority [district] shall use the groundwater
availability modeling information provided by the executive
administrator together with any available site-specific
information that has been provided by the district or groundwater
management authority to the executive administrator for review and
comment before being used in the plan.
(i) The data determined in this section and placed in the
final groundwater management plan is not subject to challenge in
court in any collateral legal action.
SECTION 162. Sections 36.1072(a-1), (b), (c), (e), (f), and
(g), Water Code, are amended to read as follows:
(a-1) A groundwater management authority [district] shall,
not later than September 1, 2022 [three years after the creation of
the district or, if the district required confirmation, not later
than three years after the election confirming the district's
creation], submit the management plan required under Section
36.1071 to the executive administrator for review and approval.
(b) Within 60 days of receipt of a [district's] management
plan adopted under Section 36.1071, readopted under Subsection (e)
or (g) [of this section], or amended under Section 36.1073, the
executive administrator shall approve the [district's] plan if the
plan is administratively complete. A management plan is
administratively complete when it contains the information
required to be submitted under Section 36.1071(a) and (e). The
executive administrator may determine whether conditions justify
waiver of the requirements under Section 36.1071(e)(4).
(c) Once the executive administrator has approved a
[district's] management plan:
(1) the executive administrator may not revoke but may
require revisions to the approved management plan as provided by
Subsection (g); and
(2) the executive administrator may request
additional information from the groundwater management authority
[district] if the information is necessary to clarify, modify, or
supplement previously submitted material, but a request for
additional information does not render the management plan
unapproved.
(e) The groundwater management authority [district] may
review the plan annually and must review and readopt the plan with
or without revisions at least once every five years. The
groundwater management authority [district] shall provide the
readopted plan to the executive administrator not later than the
60th day after the date on which the plan was readopted. Approval
of the preceding management plan remains in effect until:
(1) the groundwater management authority [district]
fails to timely readopt a management plan;
(2) the groundwater management authority [district]
fails to timely submit the groundwater management authority's
[district's] readopted management plan to the executive
administrator; or
(3) the executive administrator determines that the
readopted management plan does not meet the requirements for
approval, and the groundwater management authority [district] has
exhausted all appeals to the Texas Water Development Board [or
appropriate court].
(f) If the executive administrator does not approve the
groundwater management authority's [district's] management plan,
the executive administrator shall provide to the groundwater
management authority [district], in writing, the reasons for the
action. Not later than the 180th day after the date a groundwater
management authority [district] receives notice that its
management plan has not been approved, the groundwater management
authority [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.]
(g) A person with a legally defined interest in groundwater
in a groundwater management authority [district], or the regional
water planning group, may file a petition with the development
board stating that a conflict requiring resolution may exist
between the authority's [district's] approved management plan
developed under Section 36.1071 and the state water plan. If a
conflict exists, the development board shall provide technical
assistance to and facilitate coordination between the involved
person or regional water planning group and the groundwater
management authority [district] to resolve the conflict. Not later
than the 45th day after the date the person or the regional water
planning group files a petition with the development board, if the
conflict has not been resolved, the groundwater management
authority [district] and the involved person or regional planning
group may petition the executive administrator to resolve [mediate]
the conflict. The [district and the involved person or regional
planning group 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
district and the involved person or regional planning group cannot
resolve the conflict through mediation, the] development board
shall resolve the conflict not later than the 60th day after the
date the petition is received [mediation is completed]. The
development board action under this provision may be consolidated,
at the option of the development board, with related action under
Section 16.053(p). If the development board determines that
resolution of the conflict requires a revision of the approved
management plan, the development board shall provide information to
the groundwater management authority [district]. The groundwater
management authority [district] shall prepare any revisions to the
plan based on the information provided by the development board and
shall hold, after notice, at least one public hearing at some
central location within the groundwater management authority
[district]. The groundwater management authority [district] shall
consider all public and development board comments, prepare,
revise, and adopt its management plan, and submit the revised
management plan to the development board for approval. On the
request of the groundwater management authority [district] or the
regional water planning group, the development board shall include
discussion of the conflict and its resolution in the state water
plan that the development board provides to the governor, the
lieutenant governor, and the speaker of the house of
representatives under Section 16.051(e). [If the groundwater
conservation district disagrees with the decision of the
development board under this subsection, the district may appeal
the decision 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.]
SECTION 163. Section 36.1073, Water Code, is amended to
read as follows:
Sec. 36.1073. AMENDMENT TO MANAGEMENT PLAN. Any amendment
to the management plan shall be submitted to the executive
administrator within 60 days following adoption of the amendment by
the groundwater management authority's [district's] board. The
executive administrator shall review and approve any amendment
which substantially affects the management plan in accordance with
the procedures established under Section 36.1072.
SECTION 164. The heading to Section 36.108, Water Code, is
amended to read as follows:
Sec. 36.108. JOINT PLANNING IN GROUNDWATER MANAGEMENT
AUTHORITY [AREA].
SECTION 165. Sections 36.108(a), (b), (c), (d), (d-1),
(d-2), (d-3), (e), and (e-2), Water Code, are amended to read as
follows:
(a) In this section:
(1) "Development board" means the Texas Water
Development Board.
(2) "District representative" means the presiding
officer or the presiding officer's designee for any district
located wholly or partly in the groundwater management authority's
boundaries [area].
(b) If two or more districts are located within the
boundaries of the same groundwater management authority [area],
each district shall cooperate with and provide any data requested
by the groundwater management authority, and the authority shall
consider the input and recommendations from each district in
developing its management plan [forward a copy of that district's
new or revised management plan to the other districts in the
management area. The boards of the districts shall consider the
plans individually and shall compare them to other management plans
then in force in the management area].
(c) The district representatives shall meet at least
annually to conduct joint planning with the groundwater management
authority in which the districts are located [other districts in
the management area] and to review the management plans, the
accomplishments of the groundwater management authority [area],
and proposals to adopt new or amend existing desired future
conditions. In reviewing the management plans, the districts and
groundwater management authority shall consider:
(1) the goals of the [each] management plan and its
impact on planning throughout the groundwater management authority
[area];
(2) the effectiveness of the measures established by
the [each district's] management plan for conserving and protecting
groundwater and preventing waste, and the effectiveness of these
measures in the groundwater management authority [area] generally;
(3) any other matters that the boards of the districts
and the groundwater management authority consider relevant to the
protection and conservation of groundwater and the prevention of
waste in the groundwater management authority area; and
(4) the degree to which each management plan achieves
the desired future conditions established during the joint planning
process.
(d) Not later than May 1, 2021, and every five years
thereafter, the districts and groundwater management authority
shall consider groundwater availability models and other data or
information for the groundwater management authority [area] and
shall propose for adoption desired future conditions for the
relevant aquifers within the groundwater management authority
[area]. Before voting on the proposed desired future conditions of
the aquifers under Subsection (d-3) [(d-2)], the groundwater
management authority [districts] shall consider:
(1) aquifer uses or conditions within the groundwater
management authority [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 groundwater management authority [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 landowners within
the groundwater management authority [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
(9) any other information relevant to the specific
desired future conditions.
(d-1) After considering and documenting the factors
described by Subsection (d) and other relevant scientific and
hydrogeological data, the groundwater management authority, with
the input and assistance of the districts, may establish different
desired future conditions for:
(1) each aquifer, subdivision of an aquifer, or
geologic strata located in whole or in part within the boundaries of
the groundwater management authority [area]; or
(2) each geographic area overlying an aquifer in whole
or in part or subdivision of an aquifer within the boundaries of the
groundwater management authority [area].
(d-2) The desired future conditions proposed under
Subsection (d) must provide a balance between the highest
practicable level of groundwater production and the conservation,
preservation, protection, recharging, and prevention of waste of
groundwater and control of subsidence in the groundwater management
authority [area]. This subsection does not prohibit the
establishment of desired future conditions that provide for the
reasonable long-term management of groundwater resources
consistent with the management goals under Section 36.1071(a).
[The desired future conditions proposed under Subsection (d) must
be approved by a two-thirds vote of all the district
representatives for distribution to the districts in the management
area.] A period of not less than 90 days for public comments begins
on the day the proposed desired future conditions are adopted by the
groundwater management authority's board of directors [mailed to
the districts]. During the public comment period and after posting
notice as required by Section 36.063, the groundwater management
authority [each district] shall hold a public hearing on any
proposed desired future conditions [relevant to that district].
During the public comment period, the groundwater management
authority [district] shall make available in its office a copy of
the proposed desired future conditions and any supporting
materials, such as the documentation of factors considered under
Subsection (d) and groundwater availability model run results.
After the close of the public comment period, the groundwater
management authority [district] shall compile for consideration at
the next groundwater management authority board [joint planning]
meeting, and shall provide a copy to each district within its
boundaries, a summary of relevant comments received, any suggested
revisions to the proposed desired future conditions, and the basis
for the revisions. Not later than the 30th day after the date the
groundwater management authority sends the documents described by
this subsection to the districts, the districts shall provide
written comments to the groundwater management authority.
(d-3) After all the districts have submitted their comments
[district summaries], the groundwater management authority board
[district representatives] shall:
(1) meet [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
groundwater management authority; and
(2) [area. The desired future conditions must be
approved by a resolution adopted by a two-thirds vote of all the
district representatives not later than January 5,
2022. Subsequent desired future conditions must be proposed and
finally adopted by the district representatives before the end of
each successive five-year period after that date. The district
representatives shall] produce a desired future conditions
explanatory report for the groundwater management authority [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, which [. The report] must:
(A) [(1)] identify each desired future
condition;
(B) [(2)] provide the policy and technical
justifications for each desired future condition;
(C) [(3)] include documentation that the factors
under Subsection (d) were considered by the groundwater management
authority [districts] and a discussion of how the adopted desired
future conditions impact each factor;
(D) [(4)] list other desired future condition
options considered, if any, and the reasons why those options were
not adopted; and
(E) [(5)] discuss reasons why recommendations
made by advisory committees and relevant public comments received
by the groundwater management authority [districts] were or were
not incorporated into the desired future conditions.
(e) Except as provided by this section, a joint meeting
under this section must be held in accordance with Chapter 551,
Government Code. Each district shall comply with Chapter 552,
Government Code. The district representatives may elect one
district to be responsible for providing the notice of a joint
meeting that this section would otherwise require of each district
in the groundwater management authority [area]. Notice of a joint
meeting must be provided at least 10 days before the date of the
meeting by:
(1) providing notice to the secretary of state;
(2) providing notice to the county clerk of each
county located wholly or partly in a district that is located wholly
or partly in the groundwater management authority [area]; and
(3) posting notice at a place readily accessible to
the public at the district office of each district located wholly or
partly in the groundwater management authority's boundaries, and in
the groundwater management authority office [area].
(e-2) Notice of a joint meeting must include:
(1) the date, time, and location of the meeting;
(2) a summary of any action proposed to be taken;
(3) the name of the groundwater management authority
and each district located wholly or partly in the groundwater
management authority [area]; and
(4) the name, telephone number, and address of one or
more persons to whom questions, requests for additional
information, or comments may be submitted.
SECTION 166. Section 36.1081(b), Water Code, is amended to
read as follows:
(b) During the joint planning process under Section 36.108,
the district representatives or groundwater management authority
may appoint and convene nonvoting advisory subcommittees who
represent social, governmental, environmental, or economic
interests to assist in the development of desired future
conditions.
SECTION 167. Sections 36.1083(b), (e), (h), (j), (k), (m),
(n), (o), and (p), Water Code, are amended to read as follows:
(b) Not later than the 120th day after the date on which a
groundwater management authority [district] adopts a desired
future condition [under Section 36.108(d-4)], an affected person
may file a petition with the groundwater management authority
[district] requiring that the groundwater management authority
[district] contract with the office to conduct a hearing appealing
the reasonableness of the desired future condition. The petition
must provide evidence that the groundwater management authority
[districts] did not establish a reasonable desired future condition
of the groundwater resources in the groundwater management
authority's boundaries [area].
(e) Not later than the 10th day after receiving a petition
described by Subsection (b), the groundwater management authority
[district] shall submit a copy of the petition to the development
board. On receipt of the petition, the development board shall
conduct:
(1) an administrative review to determine whether the
desired future condition established by the groundwater management
authority [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.
(h) Not later than the 60th day after receiving a petition
under Subsection (b), the groundwater management authority
[district] shall:
(1) contract with the office to conduct the contested
case hearing requested under Subsection (b); and
(2) submit to the office a copy of any petitions
related to the hearing requested under Subsection (b) and received
by the groundwater management authority [district].
(j) During the period between the filing of the petition and
the delivery of the study described by Subsection (e)(2), the
groundwater management authority [district] may seek the
assistance of the Center for Public Policy Dispute Resolution, the
development board, or another alternative dispute resolution
system to mediate the issues raised in the petition. If the
groundwater management authority [district] and the petitioner
cannot resolve the issues raised in the petition, the office will
proceed with a hearing as described by this section.
(k) The groundwater management authority [district] may
adopt rules for notice and hearings conducted under this section
that are consistent with the procedural rules of the office. In
accordance with rules adopted by the groundwater management
authority [district] and the office, the groundwater management
authority [district] shall provide:
(1) general notice of the hearing; and
(2) individual notice of the hearing to:
(A) the petitioner;
(B) any person who has requested notice;
(C) each [nonparty] district and regional water
planning group located in the same groundwater management authority
[management area as a district] named in the petition; and
(D) the development board[; and
[(E) the commission].
(m) The petitioner shall pay the costs associated with the
contract for the hearing under this section. The petitioner shall
deposit with the groundwater management authority [district] an
amount sufficient to pay the contract amount before the hearing
begins. After the hearing, the office may assess costs to one or
more of the parties participating in the hearing and the
groundwater management authority [district] shall refund any
excess money to the petitioner. The office shall consider the
following in apportioning costs of the hearing:
(1) the party who requested the hearing;
(2) the party who prevailed in the hearing;
(3) the financial ability of the party to pay the
costs;
(4) the extent to which the party participated in the
hearing; and
(5) any other factor relevant to a just and reasonable
assessment of costs.
(n) On receipt of the administrative law judge's findings of
fact and conclusions of law in a proposal for decision, including a
dismissal of a petition, the groundwater management authority
[district] shall issue a final order stating the groundwater
management authority's [district's] decision on the contested
matter and the groundwater management authority's [district's]
findings of fact and conclusions of law. The groundwater
management authority [district] may change a finding of fact or
conclusion of law made by the administrative law judge, or may
vacate or modify an order issued by the administrative law judge, as
provided by Section 2001.058(e), Government Code.
(o) If the groundwater management authority [district]
vacates or modifies the proposal for decision, the groundwater
management authority [district] shall issue a report describing in
detail the groundwater management authority's [district's] reasons
for disagreement with the administrative law judge's findings of
fact and conclusions of law. The report shall provide the policy,
scientific, and technical justifications for the groundwater
management authority's [district's] decision.
(p) If the groundwater management authority [district] in
its final order finds that a desired future condition is
unreasonable, not later than the 60th day after the date of the
final order, the authority [districts in the same management area
as the district that received the petition shall reconvene in a
joint planning meeting for the purpose of revising the desired
future condition. The districts in the management area] shall
follow the procedures in Section 36.108 to adopt new desired future
conditions [applicable to the district that received the petition].
SECTION 168. Section 36.10835(a), Water Code, is amended to
read as follows:
(a) A final groundwater management authority [district]
order issued under Section 36.1083 may be appealed to a district
court with jurisdiction over any part of the territory of the
groundwater management authority [district] that issued the order.
An appeal under this subsection must be filed with the district
court not later than the 45th day after the date the groundwater
management authority [district] issues the final order. The case
shall be decided under the substantial evidence standard of review
as provided by Section 2001.174, Government Code. If the court
finds that a desired future condition is unreasonable, the court
shall strike the desired future condition and order the groundwater
management authority's board [districts in the same management area
as the district that received the petition] to reconvene not later
than the 60th day after the date of the court order to revise [in a
joint planning meeting for the purpose of revising] the desired
future condition. [The districts in the management area shall
follow the procedures in Section 36.108 to adopt new desired future
conditions applicable to the district that received the petition.]
SECTION 169. Section 36.1084, Water Code, is amended to
read as follows:
Sec. 36.1084. MODELED AVAILABLE GROUNDWATER. (a) The
Texas Water Development Board shall require each groundwater
management authority [the districts in a management area] to submit
to the executive administrator not later than the 60th day after the
date on which the groundwater management authority [districts]
adopted desired future conditions under Section 36.108(d-3):
(1) the desired future conditions adopted under
Section 36.108;
(2) proof that notice was posted for the joint
planning meeting; and
(3) the desired future conditions explanatory report.
(b) The executive administrator shall provide each
groundwater management authority, district and regional water
planning group located wholly or partly in the groundwater
management authority territory [area] with the modeled available
groundwater in the groundwater management authority [area] based
upon the desired future conditions adopted by the groundwater
management authority [districts].
SECTION 170. Section 36.1085, Water Code, is amended to
read as follows:
Sec. 36.1085. MANAGEMENT PLAN GOALS AND OBJECTIVES. Each
groundwater management authority [district in the management area]
shall ensure that its management plan contains goals and objectives
consistent with achieving the desired future conditions of the
relevant aquifers [as adopted during the joint planning process].
SECTION 171. Section 36.1086, Water Code, is amended to
read as follows:
Sec. 36.1086. JOINT EFFORTS BY DISTRICTS [IN A MANAGEMENT
AREA]. Districts located within the same groundwater management
authority territory [areas] or in adjacent groundwater management
authority territories [areas] may contract [to] jointly, with each
other or with groundwater management authorities, to conduct
studies or research, or to construct projects, under terms and
conditions that the districts consider beneficial. These joint
efforts may include studies of groundwater availability and
quality, aquifer modeling, and the interaction of groundwater and
surface water; educational programs; the purchase and sharing of
equipment; and the implementation of projects to make groundwater
available, including aquifer recharge, brush control, weather
modification, desalination, regionalization, and treatment or
conveyance facilities. The districts and authorities may contract
under their existing authorizations including those of Chapter 791,
Government Code, if their contracting authority is not limited by
Sections 791.011(c)(2) and (d)(3) and Section 791.014, Government
Code.
SECTION 172. Section 36.109, Water Code, is amended to read
as follows:
Sec. 36.109. COLLECTION OF INFORMATION. A district or
groundwater management authority may collect any information the
entity's board deems necessary, including information regarding
the use of groundwater, water conservation, and the practicability
of recharging a groundwater reservoir. At the request of the
executive administrator, the district or authority shall provide
any data collected by the district or authority in a format
acceptable to the executive administrator.
SECTION 173. Section 36.110, Water Code, is amended to read
as follows:
Sec. 36.110. PUBLICATION OF PLANS AND INFORMATION. A
district or authority may publish its plans and the information it
develops, bring them to the attention of the users of groundwater in
the district or authority, and encourage the users to adopt and use
them.
SECTION 174. Section 36.111, Water Code, is amended to read
as follows:
Sec. 36.111. RECORDS AND REPORTS. (a) The district or
authority may require that records be kept and reports be made of
the drilling, equipping, and completing of water wells and of the
production and use of groundwater.
(b) In implementing Subsection (a), a district or authority
may adopt rules that require an owner or operator of a water well
that is required to be registered with or permitted by the district
or authority, except for the owner or operator of a well that is
exempt from permit requirements under Section 36.117(b)(1), to
report groundwater withdrawals using reasonable and appropriate
reporting methods and frequency.
SECTION 175. Section 36.112, Water Code, is amended to read
as follows:
Sec. 36.112. DRILLERS' LOGS. A district or authority shall
require that accurate drillers' logs be kept of water wells and that
copies of drillers' logs and electric logs be filed with the
district or authority.
SECTION 176. Sections 36.113(c) and (d), Water Code, are
amended 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 groundwater management
authority's [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;
(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 by law is authorized to consider.
(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
existing groundwater and surface water resources or existing permit
holders;
(3) the proposed use of water is dedicated to any
beneficial use;
(4) the proposed use of water is consistent with the
groundwater management authority's [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.
SECTION 177. Section 36.1131, Water Code, is amended to
read as follows:
Sec. 36.1131. ELEMENTS OF PERMIT. (a) A permit issued by
the district to the applicant under Section 36.113 shall state the
terms and provisions prescribed by the district, which must comply
with the rules and management plan of the groundwater management
authority.
(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 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, which must comply with the groundwater management area's
rules and management plan; and
(11) other terms and conditions as provided by Section
36.113.
SECTION 178. Section 36.1132, Water Code, is amended to
read as follows:
Sec. 36.1132. PERMITS BASED ON MODELED AVAILABLE
GROUNDWATER. (a) A district, to the extent possible, shall issue
permits up to the point that the total volume of exempt and
permitted groundwater production will achieve an applicable
desired future condition under Section 36.108. The groundwater
management authority that includes the territory of the district
shall provide the district with the amount of groundwater
availability and desired future conditions under which the district
may issue permits.
(b) The district shall issue permits based on the features
of the aquifer underlying the applicant's land from which the water
is proposed to be drawn, along with the landowner's contiguous
acreage for the land on which the well would exist in relation to
the area of the aquifer [In issuing permits, the district shall
manage total groundwater production on a long-term basis to achieve
an applicable desired future condition and consider:
[(1) the modeled available groundwater determined by
the executive administrator;
[(2) the executive administrator's estimate of the
current and projected amount of groundwater produced under
exemptions granted by district rules and Section 36.117;
[(3) the amount of groundwater authorized under
permits previously issued by the district;
[(4) a reasonable estimate of the amount of
groundwater that is actually produced under permits issued by the
district; and
[(5) yearly precipitation and production patterns.
[(c) In developing the estimate of exempt use under
Subsection (b)(2), the executive administrator shall solicit
information from each applicable district].
SECTION 179. Sections 36.114(a) and (b), Water Code, are
amended to read as follows:
(a) The groundwater management authority [district] by rule
shall determine each activity regulated by the groundwater
management authority [district] for which a permit or permit
amendment is required. The district shall accept, process, and
consider permits and permit amendments in accordance with the
groundwater management authority's rules.
(b) For each activity for which the groundwater management
authority [district] determines a permit or permit amendment is
required under Subsection (a), and that is not exempt from a hearing
requirement under Section 36.1145, the groundwater management
authority [district] by rule shall determine whether a hearing on
the permit or permit amendment application is required.
SECTION 180. Sections 36.1146(a) and (c), Water Code, are
amended to read as follows:
(a) If the holder of an operating permit, in connection with
the renewal of a permit or otherwise, requests a change that
requires an amendment to the permit under groundwater management
authority [district] rules, the permit as it existed before the
permit amendment process remains in effect until the later of:
(1) the conclusion of the permit amendment or renewal
process, as applicable; or
(2) final settlement or adjudication on the matter of
whether the change to the permit requires a permit amendment.
(c) A district may initiate an amendment to an operating
permit, in connection with the renewal of a permit or otherwise, in
accordance with the groundwater management authority's
[district's] rules. If a district initiates an amendment to an
operating permit, the permit as it existed before the permit
amendment process shall remain in effect until the conclusion of
the permit amendment or renewal process, as applicable.
SECTION 181. Sections 36.116(a), (d), and (e), Water Code,
are 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 groundwater
management authority [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;
(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 of the groundwater management authority; 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).
(d) For better management of the groundwater resources
located in a groundwater management authority [district] or if a
groundwater management authority [district] determines that
conditions in or use of an aquifer differ substantially from one
geographic area of the district to another, the groundwater
management authority [district] may adopt different rules for:
(1) each aquifer, subdivision of an aquifer, or
geologic strata located in whole or in part within the boundaries of
the groundwater management authority [district]; or
(2) each geographic area overlying an aquifer or
subdivision of an aquifer located in whole or in part within the
boundaries of the groundwater management authority [district].
(e) In regulating the production of groundwater under
Subsection (a)(2), a groundwater management authority [district]:
(1) shall select a method that is appropriate based on
the hydrogeological conditions of the aquifer or aquifers in the
groundwater management authority [district]; and
(2) may limit the amount of water produced based on
contiguous surface acreage.
SECTION 182. Sections 36.117(a), (b), (c), (d), (f), (g),
and (h), Water Code, are amended to read as follows:
(a) A groundwater management authority [district] by rule
may provide an exemption from the groundwater management
authority's [district's] requirement to obtain any permit required
by this chapter or the groundwater management authority's
[district's] rules.
(b) Except as provided by this section, a groundwater
management authority [district] shall provide an exemption from a
[the] district requirement to obtain a permit for:
(1) drilling or operating a well used solely for
domestic use or for providing water for livestock or poultry if the
well is:
(A) located or to be located on a tract of land
larger than 10 acres; and
(B) drilled, completed, or equipped so that it is
incapable of producing more than 25,000 gallons of groundwater a
day;
(2) drilling a water well used solely to supply water
for a rig that is actively engaged in drilling or exploration
operations for an oil or gas well permitted by the Railroad
Commission of Texas provided that the person holding the permit is
responsible for drilling and operating the water well and the water
well is located on the same lease or field associated with the
drilling rig; or
(3) drilling a water well authorized under a permit
issued by the Railroad Commission of Texas under Chapter 134,
Natural Resources Code, or for production from the well to the
extent the withdrawals are required for mining activities
regardless of any subsequent use of the water.
(c) A groundwater management authority [district] may not
restrict the production of water from any well described by
Subsection (b)(1).
(d) A groundwater management authority [district] may
cancel a previously granted exemption and may require an operating
permit for or restrict production from a well and assess any
appropriate fees if:
(1) the groundwater withdrawals that were exempted
under Subsection (b)(1) are no longer used solely for domestic use
or to provide water for livestock or poultry;
(2) the groundwater withdrawals that were exempted
under Subsection (b)(2) are no longer used solely to supply water
for a rig that is actively engaged in drilling or exploration
operations for an oil or gas well permitted by the Railroad
Commission of Texas; or
(3) the groundwater withdrawals that were exempted
under Subsection (b)(3) are no longer necessary for mining
activities or are greater than the amount necessary for mining
activities specified in the permit issued by the Railroad
Commission of Texas under Chapter 134, Natural Resources Code.
(f) A groundwater management authority [district] may
require compliance with the groundwater management authority's
[district's] well spacing rules for the drilling of any well except
a well exempted under Subsection (b)(3).
(g) A groundwater management authority [district] may not
deny an application for a permit to drill and produce water for
hydrocarbon production activities if the application meets all
applicable rules as promulgated by the groundwater management
authority [district].
(h) A groundwater management authority [district] shall
require the owner of a water well to:
(1) register the well in accordance with rules
promulgated by the groundwater management authority [district];
and
(2) equip and maintain the well to conform to the
[district's] rules of the groundwater management authority
requiring installation of casing, pipe, and fittings to prevent the
escape of groundwater from a groundwater reservoir to any reservoir
not containing groundwater and to prevent the pollution or harmful
alteration of the character of the water in any groundwater
reservoir.
SECTION 183. Sections 36.119(a), (b), and (g), Water Code,
are amended to read as follows:
(a) Drilling or operating a well or wells without a required
permit or producing groundwater in violation of a groundwater
management authority [district] rule adopted under Section
36.116(a)(2) is declared to be illegal, wasteful per se, and a
nuisance.
(b) Except as provided by this section, a landowner or other
person who has a right to produce groundwater from land that is
adjacent to the land on which a well or wells are drilled or
operated without a required permit or permits or from which
groundwater is produced in violation of a groundwater management
authority [district] rule adopted under Section 36.116(a)(2), or
who owns or otherwise has a right to produce groundwater from land
that lies within one-half mile of the well or wells, may sue the
owner of the well or wells in a court of competent jurisdiction to
restrain or enjoin the illegal drilling, operation, or both. The
suit may be brought with or without the joinder of the district in
which the well or wells are located.
(g) Before filing a suit under Subsection (b) or (c), an
aggrieved party must file a written complaint with the district
having jurisdiction over the well or wells drilled or operated
without a required permit or in violation of a groundwater
management authority [district] rule. The district shall
investigate the complaint and, after notice and hearing and not
later than the 90th day after the date the written complaint was
received by the district, the district shall determine, based on
the evidence presented at the hearing, whether a groundwater
management authority [district] rule has been violated. The
aggrieved party may only file a suit under this section on or after
the 91st day after the date the written complaint was received by
the district.
SECTION 184. Section 36.120, Water Code, is amended to read
as follows:
Sec. 36.120. INFORMATION. On request of the executive
director or the executive administrator, the district and
groundwater management authority shall make available information
acquired [that it acquires] concerning the groundwater resources
within its jurisdiction, and shall make that information available
to each other. The district and groundwater management authority
shall also provide information to the commission and Texas Water
Development Board concerning its plans and activities in conserving
and protecting groundwater resources. On request of a district or
groundwater management authority, the executive director and the
executive administrator shall provide information they acquire
concerning the groundwater resources within the district's or
authority's jurisdiction.
SECTION 185. Section 36.121, Water Code, is amended to read
as follows:
Sec. 36.121. LIMITATION ON RULEMAKING POWER OF DISTRICTS
AND AUTHORITIES OVER WELLS IN CERTAIN COUNTIES. Except as provided
by Section 36.117, a district that is created under this chapter on
or after September 1, 1991, or a groundwater management authority,
shall exempt from regulation under this chapter a well and any water
produced or to be produced by a well that is located in a county that
has a population of 14,000 or less if the water is to be used solely
to supply a municipality that has a population of 121,000 or less
and the rights to the water produced from the well are owned by a
political subdivision that is not a municipality, or by a
municipality that has a population of 115,000 or less, and that
purchased, owned, or held rights to the water before the date on
which the district was created, regardless of the date the well is
drilled or the water is produced. The district or groundwater
management authority may not prohibit the political subdivision or
municipality from transporting produced water inside or outside the
district's or authority's boundaries.
SECTION 186. Sections 36.122(a), (c), (d), (f), and (g),
Water Code, are amended to read as follows:
(a) If an application for a permit or an amendment to a
permit under Section 36.113 proposes the transfer of groundwater
outside of a district's boundaries or to any person other than the
owner of the land on which the well is located regardless of whether
the transfer is inside or outside of the district, the district may
add conditions to the permit in accordance with this section [also
consider the provisions of this section in determining whether to
grant or deny the permit or permit amendment].
(c) The [Except as provided in Section 36.113(e), the]
district may not impose more restrictive permit conditions on
transporters than the district imposes on existing in-district
users.
(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 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) A district may grant a portion of its fee revenue to a
county located within the district for use in public capital
improvements relating to water development, including necessary
road improvements related to the water development activity [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;
[(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].
(g) The district may not deny a permit based on the fact that
the applicant seeks to transfer groundwater outside of the district
[but may limit a permit issued under this section if conditions in
Subsection (f) warrant the limitation, subject to Subsection (c)].
SECTION 187. Section 36.123, Water Code, is amended to read
as follows:
Sec. 36.123. RIGHT TO ENTER LAND. (a) The directors,
engineers, attorneys, agents, operators, and employees of a
district, groundwater management authority, or water supply
corporation may go on any land to inspect, make surveys, or perform
tests to determine the condition, value, and usability of the
property, with reference to the proposed location of works,
improvements, plants, facilities, equipment, or appliances. The
cost of restoration shall be borne by the district, authority, or
[the] water supply corporation.
(b) District and groundwater management authority employees
and agents are entitled to enter any public or private property
within the boundaries of the district or adjacent to any reservoir
or other property owned by the district or authority at any
reasonable time for the purpose of inspecting and investigating
conditions relating to the quality of water in the state or the
compliance with any rule, regulation, permit, or other order of the
district or authority. District or groundwater management
authority employees or agents acting under this authority who enter
private property shall observe the establishment's rules and
regulations concerning safety, internal security, and fire
protection and shall notify any occupant or management of their
presence and shall exhibit proper credentials.
SECTION 188. Section 36.124(a), Water Code, is amended to
read as follows:
(a) A governmental act or proceeding of a district or
groundwater management authority is conclusively presumed, as of
the date it occurred, valid and to have occurred in accordance with
all applicable statutes and rules if:
(1) the third anniversary of the effective date of the
act or proceeding has expired; and
(2) a lawsuit to annul or invalidate the act or
proceeding has not been filed on or before that third anniversary.
SECTION 189. Section 36.158, Water Code, is amended to read
as follows:
Sec. 36.158. GRANTS. A district or groundwater management
authority may make or accept grants, gratuities, advances, or loans
in any form to or from any source approved by its [the] board,
including any governmental entity, and may enter into contracts,
agreements, and covenants in connection with grants, gratuities,
advances, or loans that the board considers appropriate.
SECTION 190. Section 36.159, Water Code, is amended to read
as follows:
Sec. 36.159. GROUNDWATER [CONSERVATION DISTRICT]
MANAGEMENT PLAN FUNDS. The Texas Water Development Board may
allocate funds from the water assistance fund to a district or
groundwater management authority to:
(1) conduct initial data collections under this
chapter;
(2) develop and implement a long-term management plan
under Section 36.1071; and
(3) participate in regional water plans.
SECTION 191. Section 36.160, Water Code, is amended to read
as follows:
Sec. 36.160. FUNDS. The Texas Water Development Board, the
commission, the Parks and Wildlife Department, the Texas
Agricultural Extension Service, and institutions of higher
education may allocate funds to carry out the objectives of this
chapter and Chapter 35, which include but are not limited to:
(1) conducting initial and subsequent studies and
surveys under Sections 36.106, 36.107, and 36.109;
(2) providing appropriate education in affected areas
identified in Section 35.007 relating to the problems and issues
concerning water management that may arise;
(3) processing priority groundwater management area
evaluations under this chapter and Chapter 35;
(4) providing technical and administrative assistance
to newly created districts under this chapter and Chapter 35;
(5) covering the costs of newspaper notices required
under Sections 35.009 and 36.014 and failed elections in accordance
with Sections 35.014(c), 36.017(h), and 36.019; and
(6) providing for assistance from the Parks and
Wildlife Department to the Texas Water Development Board, a
groundwater management authority, or a district for the purpose of
assessing fish and wildlife resource habitat needs as they may
apply to overall management plan goals and objectives of the
district.
SECTION 192. Section 36.161(a), Water Code, is amended to
read as follows:
(a) The Texas Water Development Board may provide funds
under Sections 36.159 and 36.160, Chapters 15, 16, and 17, and
Subchapter L of this chapter to a district or groundwater
management authority if the Texas Water Development Board
determines that such funding will allow the district or authority
to comply or continue to comply with provisions of this chapter.
SECTION 193. Section 36.207, Water Code, is amended to read
as follows:
Sec. 36.207. USE OF FEES. A district may use funds obtained
from administrative, production, or export fees collected under a
special law governing the district or this chapter for any purpose
consistent with the district's public purposes [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.
SECTION 194. Section 36.251(b), Water Code, is amended to
read as follows:
(b) Only the district, the groundwater management authority
in which the district exists, the applicant, and parties to a
contested case hearing may participate in an appeal of a decision on
the application that was the subject of that contested case
hearing. An appeal of a decision on a permit application must
include the applicant as a necessary party.
SECTION 195. Subchapter B, Chapter 36, Water Code, is
amended by adding Section 36.022 to read as follows:
Sec. 36.022. NONDISCRIMINATION IN PERMITTING DECISIONS.
Notwithstanding any provision in a special law governing a
district, a district may not:
(1) discriminate in any permitting decision, rule, or
other action using historic or existing use as a criteria; or
(2) prevent or limit exportation of water from the
district.
SECTION 196. Section 49.3189, Water Code, is amended to
read as follows:
Sec. 49.3189. CONVERSION OF WATER RIGHTS. After a district
excludes land from the district's territory under this subchapter,
the municipality or other municipal supplier that proposes to serve
the land with a potable water supply may petition the district to
convert the proportionate water rights previously allocated for the
land from irrigation use rights to municipal use rights for the use
and benefit of the municipality or other municipal supplier. The
district shall compute the proportionate water rights available and
shall initiate administrative proceedings to convert the
irrigation use rights to municipal use rights. Before the district
is obligated to initiate the administrative proceedings, the
municipality or other municipal supplier must deposit with the
district the amount that the district estimates the district will
incur as reasonable expenses and attorney's fees in those
proceedings. On approval of the conversion by the Texas Water
Development Board [commission], the district shall deliver the
water to the municipality or other municipal supplier in the manner
those entities may agree to under this code.
SECTION 197. Section 49.503(b), Water Code, is amended to
read as follows:
(b) A municipal water supplier that serves land described by
Subsection (a) may petition the district in accordance with this
section to convert the proportionate irrigation water right to the
Rio Grande from irrigation use to municipal use with municipal
priority of allocation under Texas Water Development Board
[commission] rules, for the use and benefit of the municipal water
supplier.
SECTION 198. Sections 49.506(a) and (b), Water Code, are
amended to read as follows:
(a) Not later than the second anniversary of the date the
municipal water supplier files a petition under Section 49.503:
(1) a district shall provide the municipal water
supplier with the proportionate water rights described by Section
49.505 from the district's existing water rights; or
(2) a district shall, if the district does not have
sufficient existing water rights:
(A) apply for appropriate amendments to the
district's water rights under Texas Water Development Board
[commission] rules to convert the proportionate water rights from
irrigation use to municipal use with municipal priority of
allocation; and
(B) provide to the municipal water supplier the
converted rights described by Section 49.505.
(b) The district may continue to use the irrigation use
water for district purposes until:
(1) the Texas Water Development Board [commission]
approves the amendment to the district's water rights; or
(2) the water is otherwise provided to the municipal
water supplier.
SECTION 199. Section 49.509(a), Water Code, is amended to
read as follows:
(a) Subject to Subsection (d), the Rio Grande Regional Water
Authority annually at its January meeting shall calculate the
current market value by using the average price per acre-foot of
municipal use water after conversion from irrigation use water to
municipal use water with a municipal priority of allocation under
Texas Water Development Board [commission] rules of the last three
purchases involving:
(1) a municipal water supplier;
(2) a party other than a municipal water supplier; and
(3) at least 100 acre-feet of municipal use water,
with municipal priority of allocation.
SECTION 200. Section 51.852, Water Code, is amended to read
as follows:
Sec. 51.852. COOPERATION WITH TEXAS WATER DEVELOPMENT
BOARD, AUTHORITY, CORPS OF ENGINEERS, AND OTHER OWNERS. The
commission, in conjunction with the Texas Water Development Board,
the authority, the United States Army Corps of Engineers, and other
reservoir owners in the Trinity River basin, shall develop and
implement a coordinated basinwide water release program for flood
routing and control.
SECTION 201. Section 51.853, Water Code, is amended to read
as follows:
Sec. 51.853. COOPERATION WITH TEXAS WATER DEVELOPMENT
BOARD, AUTHORITY, AND OWNERS. The commission, in conjunction with
the Texas Water Development Board, the authority, and all reservoir
owners in the Trinity River basin, may review, at least every 10
years, all water rights permits affecting the basin.
SECTION 202. Section 51.854, Water Code, is amended to read
as follows:
Sec. 51.854. FLOOD WARNING SYSTEM. The commission, the
Texas Water Development Board, and the authority, in conjunction
with affected political subdivisions, shall develop a basinwide
flood warning system to alert the public and local officials of
imminent flooding in order to effectuate orderly withdrawal from
floodplains and to institute other appropriate precautions.
SECTION 203. Sections 55.193(a), (b), and (d), Water Code,
are amended to read as follows:
(a) Any district which has a permit issued by the Texas
Water Development Board [commission] to construct a reservoir and
to appropriate water from a stream or watershed for irrigation or
other purposes may convey to another district an interest in the
reservoir or water rights.
(b) The conveyance shall be recorded in the office of the
county clerk of the county in which the property is located and in
the office of the executive administrator of the Texas Water
Development Board [director].
(d) After the conveyance is filed in the office of the
executive administrator of the Texas Water Development Board
[director], the rights conveyed vest in the district to which the
conveyance was made as if the rights were granted directly by the
Texas Water Development Board [commission].
SECTION 204. Section 55.198, Water Code, is amended to read
as follows:
Sec. 55.198. PUMPING AND DELIVERING WATER TO LAND NEAR
DISTRICT. The district may enter into a contract with a person who
owns or uses land in the vicinity of the district and who has a
permit from the Texas Water Development Board [commission] to
appropriate water for use in irrigation or for domestic or
commercial uses to pump or deliver the water to the person's land.
SECTION 205. Section 58.180, Water Code, is amended to read
as follows:
Sec. 58.180. AMENDMENTS TO WATER RIGHTS. The board may
apply to the Texas Water Development Board [commission] to amend
its water rights as provided by Section 11.122 [of this code] and
the rules of the Texas Water Development Board [commission].
SECTION 206. Section 580.001, Local Government Code, is
amended to read as follows:
Sec. 580.001. WATER CONTRACTS IN BORDER MUNICIPALITIES AND
COUNTIES. The governing body of a municipality or county that has a
boundary that is contiguous with the border between this state and
the Republic of Mexico may contract for the acquisition of water or
water rights with a border municipality or state in the Republic of
Mexico if the contract is approved and monitored by the Texas Water
Development Board [Natural Resource Conservation Commission] and
the International Boundary and Water Commission, United States and
Mexico.
SECTION 207. Section 111.0192(a), Natural Resources Code,
is amended to read as follows:
(a) The right of eminent domain granted under this chapter
to any pipelines transporting coal in whatever form shall not
include and cannot be used to condemn water or water rights for use
in the transportation of coal by pipeline, and no Texas water from
any source shall be used in connection with the transportation,
maintenance, or operation of a coal slurry pipeline (except water
used for drinking, toilet, bath, or other personal uses at pumping
stations or offices) within the State of Texas unless the Texas
Water Development Board [Natural Resource Conservation Commission]
shall determine, after public hearing, that the use will not be
detrimental to the water supply of the area from which the water is
sought to be extracted.
SECTION 208. Section 111.305, Natural Resources Code, is
amended to read as follows:
Sec. 111.305. OTHER AGENCIES. (a) The commission shall
seek and act on the recommendations of the Texas [Natural Resource
Conservation] Commission on Environmental Quality, the Governor's
Energy Advisory Council, or their successors responsible for
environmental determinations and shall specify the proper use and
disposal of nondischargeable water.
(b) Neither the authority conveyed to the commission by this
subchapter to issue certificates and to promulgate rules governing
pipelines transporting coal in whatever form nor the powers and
duties conveyed on those pipelines by this chapter shall affect,
diminish, or otherwise limit the jurisdiction and authority of the
Texas Water Development Board and the Texas [Natural Resource
Conservation] Commission on Environmental Quality to regulate by
applicable rules the acquisition, use, control, disposition, and
discharge of water or water rights in Texas.
SECTION 209. Section 22.022(b), Parks and Wildlife Code, is
amended to read as follows:
(b) Improvements may include the construction of dams to
impound water to form a lake or lakes for recreational and other
conservation purposes within the park. Before constructing any dam
or lake, the commission must obtain permits required by law from the
Texas Water Development Board [Rights Commission].
SECTION 210. Section 22.072, Parks and Wildlife Code, is
amended to read as follows:
Sec. 22.072. PERMIT FOR DAM. A dam may not be constructed
until a permit has been obtained from the Texas Water Development
Board [Rights Commission].
SECTION 211. Section 8104.206, Special District Local Laws
Code, is amended to read as follows:
Sec. 8104.206. ACQUISITION OF WATER RIGHTS NOT PREVENTED.
This chapter does not prevent the authority from acquiring water
rights under any law or permit if the acquisition is approved by
order or later permit from the Texas Water Development Board
[Commission on Environmental Quality].
SECTION 212. The following provisions of the Water Code are
repealed:
(1) Section 5.506;
(2) Sections 5.701(c), (h), (i), (j), (k), (l), (m),
and (o);
(3) Section 11.030;
(4) Sections 11.085(t) and (u);
(5) Sections 11.202(d) and (e);
(6) Section 11.301;
(7) Section 11.302;
(8) Section 11.303;
(9) Section 11.304;
(10) Section 11.305;
(11) Section 11.306;
(12) Section 11.307;
(13) Section 11.308;
(14) Section 11.309;
(15) Section 11.310;
(16) Section 11.311;
(17) Section 11.312;
(18) Section 11.313;
(19) Section 11.314;
(20) Section 11.315;
(21) Section 11.316;
(22) Section 11.317;
(23) Section 11.318;
(24) Section 11.319;
(25) Section 11.320;
(26) Section 11.321;
(27) Section 11.322;
(28) Section 11.323;
(29) Section 11.324;
(30) Section 11.3271(j), as added by Chapter 281 (H.B.
2250), Acts of the 78th Legislature, Regular Session, 2003;
(31) Section 11.551(2);
(32) Section 16.012(f);
(33) Section 35.004;
(34) Section 36.001(13);
(35) Section 36.014(b);
(36) Section 36.108(d-4);
(37) Sections 36.1083(q) and (r);
(38) Section 36.113(e);
(39) Section 36.116(b);
(40) Sections 36.122(b), (h), (i), (j), (k), (m), (n),
(o), and (p);
(41) Section 36.301;
(42) Section 36.3011;
(43) Sections 36.302(c), (d), and (f); and
(44) Section 55.001(4).
SECTION 213. (a) In this section:
(1) "Board" means the Texas Water Development Board.
(2) "Commission" means the Texas Commission on
Environmental Quality.
(b) Not later than September 1, 2020, the board and the
commission shall enter into a memorandum of understanding relating
to the transfer of the administration of surface water rights
permitting from the commission to the board. The memorandum of
understanding must include a timetable and specific steps and
methods for the transfer on January 1, 2021, of all powers, duties,
obligations, rights, contracts, leases, records, assets, real or
personal property, personnel, and unspent and unobligated
appropriations and other funds that relate primarily to the
administration of surface water rights permitting from the
commission to the board.
(c) On January 1, 2021:
(1) all powers, duties, obligations, rights,
contracts, leases, records, assets, real or personal property,
personnel, and unspent and unobligated appropriations and other
funds of the commission that relate primarily to the administration
of surface water rights permitting are transferred to the board;
(2) all rules, policies, forms, procedures, and
decisions of the commission that relate primarily to the
administration of surface water rights permitting are continued in
effect as rules, policies, forms, procedures, and decisions of the
board, until superseded by a rule or other appropriate action of the
board; and
(3) any investigation, complaint, action, contested
case, or other proceeding involving the commission that relates
primarily to the administration of surface water rights permitting
is transferred without change in status to the board, and the board
assumes, without a change in status, the position of the commission
in any investigation, complaint, action, contested case, or other
proceeding that relates primarily to the administration of surface
water rights permitting involving the commission.
(d) The transfer of the powers and duties of the commission
that relate primarily to the administration of surface water rights
permitting to the board does not affect the validity of a right,
privilege, or obligation accrued, a permit or license issued, a
penalty, forfeiture, or punishment assessed, a rule adopted, a
proceeding, investigation, or remedy begun, a decision made, or
other action taken by or in connection with the commission.
SECTION 214. Nothing in this Act shall be construed to
affect any existing surface water right, certificate of
adjudication, certified filing, or other surface water quantity
permit, or surface water priority.
SECTION 215. A water contract entered into before the
effective date of this Act under which groundwater is exported from
a groundwater conservation district to another geographic area has
a five-year exemption from a reduction in exports by a limitation
imposed from a groundwater management authority, unless water
availability is threatened or impaired for another well located
within one mile from the well that is producing exported water.
SECTION 216. (a) A fee established by Section 12.115, Water
Code, as added by this Act, is due on October 1, 2022, for water
sales occurring between September 1, 2021, and August 31, 2022.
(b) Not later than January 1, 2021, the Texas Water
Development Board shall designate groundwater management
authorities as required by Section 35.052, Water Code, as added by
this Act.
SECTION 217. To the extent of any conflict, this Act
prevails over another Act of the 86th Legislature, Regular Session,
2019, relating to nonsubstantive additions to and corrections in
enacted codes.
SECTION 218. This Act takes effect September 1, 2019.