H.B. No. 720
AN ACT
relating to appropriations of water for recharge of aquifers and
use in aquifer storage and recovery projects.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 11.023(a) and (d), Water Code, are
amended to read as follows:
(a) To the extent that state water has not been set aside by
the 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; and
(9) recharge into an aquifer underlying this state
other than an aquifer described under Subsection (c) through
surface infiltration or an aquifer recharge project as defined by
Section 27.201.
(d) When it is put or allowed to sink into the ground, water
appropriated under Subsections (a)(9) and [Subsection] (c) [of
this section] loses its character and classification as state
water, storm water, or floodwater and is considered percolating
groundwater.
SECTION 2. Subchapter D, Chapter 11, Water Code, is amended
by adding Sections 11.157 and 11.158 to read as follows:
Sec. 11.157. WATER FOR USE AS AQUIFER RECHARGE OR IN AN
AQUIFER STORAGE AND RECOVERY PROJECT. (a) Unappropriated water,
including storm water and floodwater, may be appropriated for
recharge into an aquifer underlying this state, including an
aquifer recharge project as defined by Section 27.201. Water
appropriated for diversion and a beneficial use may be stored in an
aquifer storage and recovery project, as defined by Section 27.151,
before the water is recovered for that beneficial use.
(b) The commission may authorize the appropriation of water
under Subsection (a) if the commission determines that:
(1) the water is not needed under Section 11.147 or
11.1471(a)(2), as applicable, to meet downstream instream flow
needs or freshwater inflow needs;
(2) the appropriation will accomplish a purpose
established by Section 11.023; and
(3) the application for the water right or amendment
to the water right complies with Subsection (c).
(c) A water right or an amendment to a water right
authorizing a new appropriation of water for use under Subsection
(a):
(1) must comply with the requirements of Section
11.134;
(2) must include any special conditions the commission
considers necessary to implement this section; and
(3) may be for water that is not continuously
available.
(d) Before approving an application for a water right or an
amendment to a water right for a new appropriation of water in the
Rio Grande basin under this section, the commission shall consider
the water accounting requirements for any international water
sharing treaty, minutes, and agreement applicable to the Rio Grande
basin and the effect of the project on the allocation of water by
the Rio Grande watermaster in the middle and lower Rio Grande. The
commission may not authorize a new appropriation of water that
would result in a violation of a treaty or court decision.
(e) An application for a water right or an amendment to a
water right under this section is subject to the motion and hearing
requirements of this subchapter.
(f) Not later than the 180th day after the date the
commission determines that a water right or an amendment to a water
right under this section is administratively complete, the
commission shall complete a technical review of the application.
(g) The commission shall adopt rules providing for the
considerations for determining the frequency that the water must be
available before it may be appropriated.
Sec. 11.158. AMENDMENT TO CONVERT USE FROM RESERVOIR
STORAGE TO AQUIFER STORAGE AND RECOVERY. (a) In this section,
"aquifer storage and recovery project" has the meaning assigned by
Section 27.151.
(b) A holder of a water right that authorizes the storage of
water for a beneficial use in a reservoir that has not been
constructed may file an application to amend the water right to
remove the authorization for storage in a reservoir provided that
the water diverted under the right will be stored in an aquifer
storage and recovery project authorized under Section 27.153 for
later retrieval and use as authorized by the original water right.
(c) An application for an amendment to a water right
described by Subsection (b) may request an increase in the amount of
water that may be diverted or the rate of diversion on the basis of
an evaporation credit that takes into account the amount of water
that would have evaporated if the storage reservoir had been
constructed.
(d) A holder of a water right authorizing an appropriation
of water for storage in a storage reservoir that has lost storage
because of sedimentation, as determined by a survey performed by
the board, may file an application for an amendment to the water
right to change the use or purpose for which the appropriation is to
be made from storage by diversion to storage as part of an aquifer
storage and recovery project for later retrieval and use as
authorized by the original water right in an amount equal to all or
part of the amount of water yield lost to sedimentation.
(e) An application for an amendment to a water right
described by Subsection (b) is exempt from any notice and hearing
requirements of a statute, commission rule, or permit condition and
may not be referred to the State Office of Administrative Hearings
for a contested case hearing if the requested change will not cause
a negative effect on other water rights holders or the environment
that is greater than the effect that the original permit would have
had were the permit rights exercised to the full extent of the
original permit.
(f) An application for an amendment to a water right
described by Subsection (c) or (d) is subject to the notice and
hearing requirements of this chapter.
(g) If the commission grants an application for an amendment
to a water right described by Subsection (c) or (d), the commission
shall include in the amendment any special conditions the
commission considers necessary to:
(1) protect existing water rights; and
(2) comply with any applicable requirements
established under Section 11.147 or 11.1471.
(h) The commission may adopt rules providing an expedited
procedure for acting on an application for an amendment to a water
right described by Subsection (b) and the procedures to file and act
on an application for an amendment to a water right described by
Subsection (c) or (d).
SECTION 3. Chapter 27, Water Code, is amended by adding
Subchapter H to read as follows:
SUBCHAPTER H. AQUIFER RECHARGE PROJECTS
Sec. 27.201. DEFINITIONS. In this subchapter:
(1) "Aquifer recharge project" means a project
involving the intentional recharge of an aquifer by means of an
injection well authorized under this chapter or other means of
infiltration, including actions designed to:
(A) reduce declines in the water level of the
aquifer;
(B) supplement the quantity of groundwater
available;
(C) improve water quality in an aquifer;
(D) improve spring flows and other interactions
between groundwater and surface water; or
(E) mitigate subsidence.
(2) "Native groundwater" means the groundwater
naturally occurring in a geologic formation.
(3) "Project operator" means a person holding an
authorization under this subchapter to undertake an aquifer
recharge project.
(4) "Recharge injection well" means a Class V
injection well used for the injection of water into a geologic
formation for an aquifer recharge project, including an improved
sinkhole or cave connected to an aquifer.
Sec. 27.202. JURISDICTION. The commission has exclusive
jurisdiction over the regulation and permitting of recharge
injection wells.
Sec. 27.203. AUTHORIZATION FOR USE OF CLASS V INJECTION
WELLS. (a) The commission may authorize the use of a Class V
injection well as a recharge injection well:
(1) by rule;
(2) under an individual permit; or
(3) under a general permit.
(b) In adopting a rule or issuing a permit under this
section, the commission shall consider:
(1) whether the injection of water will comply with
the standards established by the federal Safe Drinking Water Act
(42 U.S.C. Section 300f et seq.);
(2) the effect of the aquifer recharge project on
existing water wells; and
(3) whether the introduction of water into the
receiving geologic formation will alter the physical, chemical, or
biological quality of the native groundwater to a degree that
would:
(A) render the groundwater produced from the
receiving geologic formation harmful or detrimental to people,
animals, vegetation, or property; or
(B) require an unreasonably higher level of
treatment of the groundwater produced from the receiving geologic
formation than is necessary for the native groundwater to render
the groundwater suitable for beneficial use.
(c) The commission by rule shall provide for public notice
and comment on a proposed general permit authorized under this
section. The commission shall require an applicant for an
individual permit authorized under this section to provide notice
of the application by first class mail to any groundwater
conservation district in which the wells associated with the
aquifer recharge project will be located and by publishing notice
in a newspaper of general circulation in the county in which the
wells will be located.
Sec. 27.204. TECHNICAL STANDARDS. (a) The commission shall
adopt technical standards governing the approval of the use of a
Class V injection well as a recharge injection well.
(b) The commission may not adopt or enforce groundwater
quality protection standards for the quality of water injected into
a recharge injection well that are more stringent than applicable
federal standards.
Sec. 27.205. REPORTING OF INJECTION VOLUMES. (a) A project
operator shall install a meter on each recharge injection well
associated with the aquifer recharge project.
(b) Each calendar year, the project operator shall provide
to the commission a written or electronic report showing for the
preceding calendar year the volume of water injected for recharge.
Sec. 27.206. REPORTING OF WATER QUALITY DATA. A project
operator shall:
(1) perform water quality testing annually on water to
be injected into a geologic formation as part of the aquifer
recharge project; and
(2) provide the results of the testing described by
Subdivision (1) in written or electronic form to the commission.
Sec. 27.207. OTHER LAWS NOT AFFECTED. (a) This subchapter
does not affect the ability to regulate an aquifer recharge project
as authorized under:
(1) Chapter 626, Acts of the 73rd Legislature, Regular
Session, 1993, for the Edwards Aquifer Authority;
(2) Chapter 8801, Special District Local Laws Code,
for the Harris-Galveston Subsidence District;
(3) Chapter 8834, Special District Local Laws Code,
for the Fort Bend Subsidence District;
(4) Chapter 8802, Special District Local Laws Code,
for the Barton Springs-Edwards Aquifer Conservation District; or
(5) Chapter 8811, Special District Local Laws Code,
for the Corpus Christi Aquifer Storage and Recovery Conservation
District.
(b) This subchapter does not affect the authority of the
commission regarding:
(1) recharge projects in certain portions of the
Edwards underground reservoir under Sections 11.023(c) and (d);
(2) injection wells that transect or terminate in
certain portions of the Edwards Aquifer under Section 27.0516; or
(3) aquifer storage and recovery projects under
Section 11.155 or Subchapter G of this chapter.
SECTION 4. Not later than June 1, 2020, the Texas Commission
on Environmental Quality shall adopt rules to implement Sections
11.157 and 11.158, Water Code, as added by this Act, and Subchapter
H, Chapter 27, Water Code, as added by this Act.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2019.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 720 was passed by the House on May 1,
2019, by the following vote: Yeas 135, Nays 3, 2 present, not
voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 720 was passed by the Senate on May
22, 2019, by the following vote: Yeas 25, Nays 6.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor