By: Bailes H.B. No. 4874
A BILL TO BE ENTITLED
AN ACT
relating to notice of a water right amendment filed with the Texas
Commission on Environmental Quality regarding a change in purpose
of use.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 11.122, Water Code, is amended by adding
section 11.122(b-4) as follows:
Sec. 11.122. AMENDMENTS TO WATER RIGHTS REQUIRED. (a) All
holders of permits, certified filings, and certificates of
adjudication issued under Section 11.323 of this code shall obtain
from the 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.
(b) Subject to meeting all other applicable requirements of
this chapter for the approval of an application, an amendment,
except an amendment to a water right that increases the amount of
water authorized to be diverted or the authorized rate of
diversion, shall be authorized if the requested change will not
cause adverse impact on other water right holders or the
environment on the stream of greater magnitude than under
circumstances in which the permit, certified filing, or certificate
of adjudication that is sought to be amended was fully exercised
according to its terms and conditions as they existed before the
requested amendment.
(b-1) A holder of a water right that begins using
desalinated seawater after acquiring the water right has a right to
expedited consideration of an application for an amendment to the
water right if the amendment:
(1) authorizes the applicant to divert water from a
diversion point that is different from or in addition to the point
or points from which the applicant was authorized to divert water
before the requested amendment;
(2) authorizes the applicant to divert from the
different or additional diversion point an amount of water that is
equal to or less than the amount of desalinated seawater used by the
applicant;
(3) authorizes the applicant to divert from all of the
diversion points authorized by the water right an amount of water
that is equal to or less than the amount of water the applicant was
authorized to divert under the water right before the requested
amendment;
(4) authorizes the applicant to divert water from all
of the diversion points authorized by the water right at a combined
rate that is equal to or less than the combined rate at which the
applicant was authorized to divert water under the water right
before the requested amendment; and
(5) does not authorize the water diverted from the
different or additional diversion point to be transferred to
another river basin.
(b-2) The executive director or the commission shall
prioritize the technical review of an application that is subject
to Subsection (b-1) over the technical review of applications that
are not subject to that subsection.
(b-3) In addition to an application that meets the
requirements of Subsection (b) and for which the commission has
determined that notice or an opportunity for a contested case
hearing is not required under another statute or a commission rule,
an application for an amendment to a water right is exempt from any
requirements of a statute or commission rule regarding notice and
hearing or technical review by the executive director or the
commission and may not be referred to the State Office of
Administrative Hearings for a contested case hearing if the
executive director determines after an administrative review that
the application is for an amendment that:
(1) adds a purpose of use that does not substantially
alter:
(A) the nature of the right from a right
authorizing only nonconsumptive use to a right authorizing
consumptive use; or
(B) a pattern of use that is explicitly
authorized in or required by the original right;
(2) adds a place of use located in the same basin as
the place of use authorized by the original right; or
(3) changes the point of diversion, provided that:
(A) the authorized rate of diversion is not
increased;
(B) the original point of diversion and the new
point of diversion are located in the same contiguous tract of land;
(C) the original point of diversion and the new
point of diversion are from the same source of supply;
(D) there are no points of diversion from the
same source of supply associated with other water rights that are
located between the original point of diversion and the new point of
diversion;
(E) there are no streamflow gauges located on the
source of supply between the original point of diversion and the new
point of diversion that are referenced in the original water right
or in another water right authorizing a diversion from the same
source of supply; and
(F) there are no tributary watercourses that
enter the watercourse that is the source of supply located between
the original point of diversion and the new point of diversion.
(b-4) An application for an amendment to a water right to
change the purpose of use from a consumptive use for power
generation to any other consumptive use shall provide public notice
of the application in the county where the water right is located,
in accordance with commission rules.
SECTION 2. The change in law made by this Act to Section
11.122, Water Code, applies only to an application filed with the
Texas Commission on Environmental Quality on or after the effective
day of this Act.
SECTION 3. The Texas Commission on Environmental Quality
shall adopt rules necessary to implement the change in law made by
this Act as soon as practicable after the effective date of this
Act.
SECTION 4. 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, 2023.