88R30677 LRM-F
By: Perry, et al. S.B. No. 156
(King of Uvalde)
Substitute the following for S.B. No. 156: No.
A BILL TO BE ENTITLED
AN ACT
relating to the regulation and management of the use of groundwater
and regulation of groundwater conservation districts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 7.142(a) and (b), Water Code, are
amended to read as follows:
(a) A person commits an offense if the person violates:
(1) Section 11.081;
(2) Section 11.083;
(3) Section 11.084;
(4) Section 11.087;
(5) Section 11.088;
(6) Section 11.089;
(7) Section 11.090;
(8) Section 11.091;
(9) Section 11.092;
(10) Section 11.093;
(11) Section 11.094;
(12) Section 11.096; or
(13) [Section 11.203; or
[(14)] Section 11.205.
(b) An offense under Subsection (a)(9), (a)(10), or (a)(13)
[(a)(14)] is punishable under Section 7.187(a)(1)(A) or (2)(B)
[Section 7.187(1)(A) or Section 7.187(2)(B)] or both.
SECTION 2. Subchapter F, Chapter 11, Water Code, is amended
by adding Section 11.2011 to read as follows:
Sec. 11.2011. APPLICABILITY. This subchapter, other than
Sections 11.202(c) and 11.206, applies only to an artesian well
drilled outside the boundaries of a groundwater conservation
district, subsidence district, or other conservation and
reclamation district with the authority to regulate the drilling,
spacing, or production of water wells.
SECTION 3. Section 36.001, Water Code, is amended by adding
Subdivisions (2-a) and (32) and amending Subdivisions (8) and (9)
to read as follows:
(2-a) "Conservation" means the practice of reducing
the consumption of water, reducing the loss or waste of water,
improving the efficiency in the use of water, or increasing the
recycling and reuse of water so that a water supply is made
available for future or alternative uses.
(8) "Waste" means any one or more of the following:
(A) withdrawal of groundwater from a groundwater
reservoir at a rate and in an amount that causes or threatens to
cause intrusion into the reservoir of water unsuitable for
agricultural, gardening, domestic, or stock raising purposes;
(B) the flowing or producing of wells from a
groundwater reservoir if the water produced is not used for a
beneficial purpose;
(C) escape of groundwater from a groundwater
reservoir to any other reservoir or geologic strata that does not
contain groundwater;
(D) pollution or harmful alteration of
groundwater in a groundwater reservoir by saltwater or by other
deleterious matter admitted from another stratum or from the
surface of the ground;
(E) willfully or negligently causing, suffering,
or allowing groundwater to escape into any river, creek, natural
watercourse, depression, lake, reservoir, drain, sewer, street,
highway, road, or road ditch, or onto any land other than that of
the owner of the well unless such discharge is authorized by permit,
rule, or order issued by the commission under Chapter 26;
(F) groundwater pumped for irrigation that
escapes as irrigation tailwater onto land other than that of the
owner of the well unless permission has been granted by the occupant
of the land receiving the discharge; [or]
(G) the production or use of groundwater in an
amount that exceeds the amount reasonably necessary for the purpose
for which the groundwater is needed, not including the production
or use of groundwater for agricultural irrigation as necessary to
comply with federal crop insurance standards and guidelines; or
(H) drilling, completing, maintaining, or
operating a well that is not in compliance with the requirements of
Chapter 1901, Occupations Code, or applicable rules adopted under
that chapter [for water produced from an artesian well, "waste"
also has the meaning assigned by Section 11.205].
(9) "Use for a beneficial purpose" means the
nonwasteful use of groundwater for:
(A) agricultural, gardening, domestic, stock
raising, municipal, mining, manufacturing, industrial, commercial,
recreational, or pleasure purposes;
(B) exploring for, producing, handling, or
treating oil, gas, sulphur, or other minerals; or
(C) any other purpose that is useful and
beneficial to the user.
(32) "Modeled sustained groundwater pumping" means
the maximum amount of groundwater that the executive administrator,
using the best available science, determines may be produced
annually in perpetuity from an aquifer.
SECTION 4. Subchapter D, Chapter 36, Water Code, is amended
by adding Section 36.1025 to read as follows:
Sec. 36.1025. PETITION TO CHANGE RULES. (a) A person with
a real property interest in groundwater may petition the district
where the property that gives rise to the real property interest is
located to adopt a rule or modify a rule adopted under this chapter.
(b) The district by rule shall prescribe the form for a
petition submitted under this section and the procedure for the
submission, consideration, and disposition of the petition.
(c) Not later than the 90th day after the date the district
receives the petition, the district shall:
(1) deny the petition and provide an explanation for
the denial; or
(2) engage in rulemaking consistent with the granted
petition.
(d) Nothing in this section may be construed to create a
private cause of action for a decision to accept or deny a petition
filed under this section.
SECTION 5. Section 36.1071, Water Code, is amended by
amending Subsection (b) and adding Subsections (b-1) and (b-2) to
read as follows:
(b) The management plan, or any amendments to the plan,
shall:
(1) be developed using the district's best available
data and forwarded to the regional water planning group for use in
their planning process; and
(2) include the:
(A) most recently approved desired future
conditions adopted under Section 36.108; and
(B) amount of modeled available groundwater
corresponding to the most recently approved desired future
conditions.
(b-1) A district shall amend a management plan before the
second anniversary of the adoption of desired future conditions
included under Subsection (b).
(b-2) If a petition challenging the reasonableness of a
desired future condition is filed under Section 36.1083(b), the
executive administrator shall consider the management plan
administratively complete if the district includes:
(1) the most recently approved desired future
conditions adopted under Section 36.108;
(2) the amount of modeled available groundwater
corresponding to the desired future conditions;
(3) a statement of the status of the petition
challenging the reasonableness of a desired future condition; and
(4) the information required by Subsections (a) and
(e).
SECTION 6. Section 36.108, Water Code, is amended by
amending Subsection (d) and adding Subsection (d-5) to read as
follows:
(d) Not later than May 1, 2021, and every five years
thereafter, the districts shall consider groundwater availability
models and other data or information for the management area and
shall propose for adoption desired future conditions for the
relevant aquifers within the management area. Before voting on the
proposed desired future conditions of the aquifers under Subsection
(d-2), the districts shall consider:
(1) aquifer uses or conditions within the management
area, including conditions that differ substantially from one
geographic area to another;
(2) the water supply needs and water management
strategies included in the state water plan;
(3) hydrological conditions[, including] for each
aquifer in the management area, including:
(A) the total estimated recoverable storage; [as
provided by the executive administrator, and]
(B) the average annual recharge, inflows, and
discharge; and
(C) if calculated by the executive
administrator, the modeled sustained groundwater pumping;
(4) other environmental impacts, including impacts on
spring flow and other interactions between groundwater and surface
water;
(5) the impact on subsidence;
(6) socioeconomic impacts reasonably expected to
occur;
(7) the impact on the interests and rights in private
property, including ownership and the rights of management area
landowners and their lessees and assigns in groundwater as
recognized under Section 36.002;
(8) the feasibility of achieving the desired future
condition; and
(9) any other information relevant to the specific
desired future conditions.
(d-5) Notwithstanding Subsection (d)(3), the executive
administrator may not calculate the modeled sustained groundwater
pumping for an aquifer or an aquifer that wholly or partly underlies
an aquifer with a recharge rate such that an owner of land that
overlies the aquifer qualifies or has previously qualified under
federal tax law for a cost depletion deduction for the groundwater
withdrawn from the aquifer for irrigation purposes.
SECTION 7. Section 36.113(d), Water Code, is amended to
read as follows:
(d) This subsection does not apply to the renewal of an
operating permit issued under Section 36.1145. Before granting or
denying a permit, or a permit amendment issued in accordance with
Section 36.1146, the district shall consider whether:
(1) the application conforms to the requirements
prescribed by this chapter and is accompanied by the prescribed
fees;
(2) the proposed use of water unreasonably affects:
(A) existing groundwater and surface water
resources; [or]
(B) existing permit holders; or
(C) wells that are exempt from the requirement to
obtain a permit under this chapter or district rules;
(3) the proposed use of water is dedicated to any
beneficial use;
(4) the proposed use of water is consistent with the
district's approved management plan;
(5) if the well will be located in the Hill Country
Priority Groundwater Management Area, the proposed use of water
from the well is wholly or partly to provide water to a pond, lake,
or reservoir to enhance the appearance of the landscape;
(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 8. Subchapter D, Chapter 36, Water Code, is amended
by adding Section 36.1141 to read as follows:
Sec. 36.1141. NOTICE REQUIRED FOR APPLICATION FOR PERMIT OR
PERMIT AMENDMENT. (a) Except as provided by Subsection (b), a
district that has adopted rules regulating the spacing of wells
under Section 36.116(a)(1) to require wells to be spaced a certain
distance from other wells shall adopt rules requiring that notice
of an application for a permit or permit amendment to drill a well
or increase the production capacity of an existing well be provided
to each landowner whose:
(1) land is located wholly or partly within the
spacing distances from other wells under the spacing rules of the
district; and
(2) right to obtain a permit or permit amendment for a
well of a certain size or location under the spacing rules of the
district will be affected if the district approves the application.
(b) Notice is not required under Subsection (a):
(1) for a replacement well to be drilled at or near the
location of the well which it is intended to replace that has an
equal or lesser production capacity than the well which it is
intended to replace as determined by the rules of the district;
(2) for an emergency well necessary to mitigate a loss
of production capacity of an existing well as determined by the
rules of the district;
(3) if the notice is to be provided to the lessors of
the right to produce groundwater from a property where the
applicant for the permit or permit amendment is the lessee; or
(4) if the district:
(A) posts in a place readily accessible to the
public at the district's main office a list of the applications
described by Subsection (a) that includes the name of the applicant
and address or approximate location of the well or proposed well;
and
(B) posts on the home page of the district's
Internet website, if the district operates an Internet website:
(i) a list described by Paragraph (A); or
(ii) a link to a web application that
includes the information included on a list described by Paragraph
(A).
SECTION 9. Section 36.122, Water Code, is amended by
amending Subsections (e) and (p) and adding Subsections (e-1),
(e-2), and (e-3) to read as follows:
(e) Except as provided by Subsection (e-1), the [The]
district may impose an export fee or surcharge using one of the
following methods:
(1) a fee negotiated between the district and the
exporter;
(2) for a tax-based district, a rate not to exceed 20
cents [the equivalent of the district's tax rate per hundred
dollars of valuation] for each thousand gallons of water exported
from the district [or 2.5 cents per thousand gallons of water, if
the district assesses a tax rate of less than 2.5 cents per hundred
dollars of valuation]; or
(3) for a fee-based district, a rate not to exceed the
greater of 20 cents for each thousand gallons or a 50 percent
surcharge, in addition to the district's production fee, for water
exported from the district.
(e-1) Effective January 1, 2024, the maximum allowable rate
a district may impose for an export fee or surcharge under
Subsection (e)(2) or (e)(3) increases by three percent each
calendar year.
(e-2) A district governed by a special law in regard to an
export fee or surcharge on water exported from the district may
charge an export fee or surcharge in accordance with that special
law or in accordance with Subsections (e) and (e-1).
(e-3) An export fee or surcharge imposed under Subsection
(e) or an increase in an imposed export fee or surcharge is not
valid unless it is approved by the board after a public hearing.
(p) Subsections [Subsection] (e), (e-1), and (e-2) do
[does] not apply to a district that is collecting an export fee or
surcharge on March 1, 2001.
SECTION 10. 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 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 or to maintain the
operability of wells significantly affected by groundwater
development to allow for the highest practicable level of
groundwater production while achieving the desired future
conditions established under Section 36.108.
SECTION 11. Section 36.3011, Water Code, is amended by
amending Subsection (d) and adding Subsections (d-1), (d-2), (d-3),
(e-1), (e-2), and (e-3) to read as follows:
(d) If the petition is not dismissed under Subsection (c),
the commission shall appoint a review panel consisting of a
chairperson and four other members. A director or general manager
of a district located outside the management area that is the
subject of the petition may be appointed to the review panel. The
commission may not appoint more than two members of the review panel
from any one district. The commission also shall appoint a
disinterested person to serve as a nonvoting recording secretary
for the review panel. The recording secretary shall [may] be an
employee of the commission. The recording secretary shall record
and document the proceedings of the panel.
(d-1) A review panel established under Subsection (d) is an
advisory body to the commission and not a governmental body under
Chapter 551 or 552, Government Code.
(d-2) The commission shall reimburse a member appointed to
the review panel for actual expenses incurred while engaging in
activities on behalf of the review panel. To be eligible for
reimbursement, the member must file with the executive director a
verified statement, including any relevant receipts, describing
the expenses incurred. A member appointed to the review panel is
not entitled to a fee of office or other compensation for serving on
the review panel.
(d-3) The records and documents of the recording secretary
of the proceedings of the review panel must be provided to the
executive director and are public information under Chapter 552,
Government Code.
(e-1) Not later than the seventh day before the date of a
public meeting or public hearing of the review panel under
Subsection (e), the executive director shall provide notice of any
public meeting or public hearing the review panel is directed to
conduct by:
(1) posting notice on the commission's Internet
website; and
(2) regular mail to:
(A) the district that is the subject of the
petition;
(B) the petitioner; and
(C) the county clerk of each county in the
district that is the subject of the petition.
(e-2) The commission or the review panel may submit a
written request to the executive administrator for assistance on a
technical issue related to the petition. The executive
administrator shall provide the technical assistance not later than
the 120th day after the date the executive administrator receives
the request. A deadline under Subsection (c), (e), or (h) is
extended by 120 days if a request for technical assistance is
submitted to the executive administrator during a review phase
under that subsection.
(e-3) On request from a member of the review panel, the
office of public interest counsel of the commission shall provide
legal advice and assistance to the review panel. Notwithstanding
Section 5.273, the office of public interest counsel:
(1) may not participate as a party in an inquiry under
this section; and
(2) has no duty or responsibility to represent the
public interest or otherwise in an inquiry except as provided by
this subsection.
SECTION 12. The following provisions of the Water Code are
repealed:
(1) Sections 11.202(d) and (e);
(2) Section 11.203;
(3) Section 11.204; and
(4) Section 11.207.
SECTION 13. Not later than December 1, 2023, a groundwater
conservation district shall adopt rules to implement Section
36.1025, Water Code, as added by this Act.
SECTION 14. The changes in law made by this Act applicable
to a petition filed under Section 36.1083, Water Code, apply only to
a petition filed under that section on or after the effective date
of this Act. A petition filed before the effective date of this Act
is governed by the law in effect on the date the hearing was
conducted, and the former law is continued in effect for that
purpose.
SECTION 15. Section 36.1141, Water Code, as added by this
Act, applies only to an application for a permit or permit amendment
submitted on or after the effective date of this Act. An application
submitted before the effective date of this Act is subject to the
law in effect on the date the application is submitted, and that law
is continued in effect for that purpose.
SECTION 16. Section 36.3011, Water Code, as amended by this
Act, applies only to a petition requesting an inquiry regarding the
duties of a groundwater conservation district filed with the Texas
Commission on Environmental Quality on or after the effective date
of this Act. A petition filed with the Texas Commission on
Environmental Quality before the effective date of this Act is
governed by the law in effect on the date the petition was filed,
and the former law is continued in effect for that purpose.
SECTION 17. This Act takes effect September 1, 2023.