Texas 2023 - 88th Regular

Texas Senate Bill SB156 Compare Versions

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1	1	88R30677 LRM-F
2	2	By: Perry, et al. S.B. No. 156
3	3	(King of Uvalde)
4	4	Substitute the following for S.B. No. 156: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the regulation and management of the use of groundwater
10	10	and regulation of groundwater conservation districts.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Sections 7.142(a) and (b), Water Code, are
13	13	amended to read as follows:
14	14	(a) A person commits an offense if the person violates:
15	15	(1) Section 11.081;
16	16	(2) Section 11.083;
17	17	(3) Section 11.084;
18	18	(4) Section 11.087;
19	19	(5) Section 11.088;
20	20	(6) Section 11.089;
21	21	(7) Section 11.090;
22	22	(8) Section 11.091;
23	23	(9) Section 11.092;
24	24	(10) Section 11.093;
25	25	(11) Section 11.094;
26	26	(12) Section 11.096; or
27	27	(13) [Section 11.203; or
28	28	[(14)] Section 11.205.
29	29	(b) An offense under Subsection (a)(9), (a)(10), or (a)(13)
30	30	[(a)(14)] is punishable under Section 7.187(a)(1)(A) or (2)(B)
31	31	[Section 7.187(1)(A) or Section 7.187(2)(B)] or both.
32	32	SECTION 2. Subchapter F, Chapter 11, Water Code, is amended
33	33	by adding Section 11.2011 to read as follows:
34	34	Sec. 11.2011. APPLICABILITY. This subchapter, other than
35	35	Sections 11.202(c) and 11.206, applies only to an artesian well
36	36	drilled outside the boundaries of a groundwater conservation
37	37	district, subsidence district, or other conservation and
38	38	reclamation district with the authority to regulate the drilling,
39	39	spacing, or production of water wells.
40	40	SECTION 3. Section 36.001, Water Code, is amended by adding
41	41	Subdivisions (2-a) and (32) and amending Subdivisions (8) and (9)
42	42	to read as follows:
43	43	(2-a) "Conservation" means the practice of reducing
44	44	the consumption of water, reducing the loss or waste of water,
45	45	improving the efficiency in the use of water, or increasing the
46	46	recycling and reuse of water so that a water supply is made
47	47	available for future or alternative uses.
48	48	(8) "Waste" means any one or more of the following:
49	49	(A) withdrawal of groundwater from a groundwater
50	50	reservoir at a rate and in an amount that causes or threatens to
51	51	cause intrusion into the reservoir of water unsuitable for
52	52	agricultural, gardening, domestic, or stock raising purposes;
53	53	(B) the flowing or producing of wells from a
54	54	groundwater reservoir if the water produced is not used for a
55	55	beneficial purpose;
56	56	(C) escape of groundwater from a groundwater
57	57	reservoir to any other reservoir or geologic strata that does not
58	58	contain groundwater;
59	59	(D) pollution or harmful alteration of
60	60	groundwater in a groundwater reservoir by saltwater or by other
61	61	deleterious matter admitted from another stratum or from the
62	62	surface of the ground;
63	63	(E) willfully or negligently causing, suffering,
64	64	or allowing groundwater to escape into any river, creek, natural
65	65	watercourse, depression, lake, reservoir, drain, sewer, street,
66	66	highway, road, or road ditch, or onto any land other than that of
67	67	the owner of the well unless such discharge is authorized by permit,
68	68	rule, or order issued by the commission under Chapter 26;
69	69	(F) groundwater pumped for irrigation that
70	70	escapes as irrigation tailwater onto land other than that of the
71	71	owner of the well unless permission has been granted by the occupant
72	72	of the land receiving the discharge; [or]
73	73	(G) the production or use of groundwater in an
74	74	amount that exceeds the amount reasonably necessary for the purpose
75	75	for which the groundwater is needed, not including the production
76	76	or use of groundwater for agricultural irrigation as necessary to
77	77	comply with federal crop insurance standards and guidelines; or
78	78	(H) drilling, completing, maintaining, or
79	79	operating a well that is not in compliance with the requirements of
80	80	Chapter 1901, Occupations Code, or applicable rules adopted under
81	81	that chapter [for water produced from an artesian well, "waste"
82	82	also has the meaning assigned by Section 11.205].
83	83	(9) "Use for a beneficial purpose" means the
84	84	nonwasteful use of groundwater for:
85	85	(A) agricultural, gardening, domestic, stock
86	86	raising, municipal, mining, manufacturing, industrial, commercial,
87	87	recreational, or pleasure purposes;
88	88	(B) exploring for, producing, handling, or
89	89	treating oil, gas, sulphur, or other minerals; or
90	90	(C) any other purpose that is useful and
91	91	beneficial to the user.
92	92	(32) "Modeled sustained groundwater pumping" means
93	93	the maximum amount of groundwater that the executive administrator,
94	94	using the best available science, determines may be produced
95	95	annually in perpetuity from an aquifer.
96	96	SECTION 4. Subchapter D, Chapter 36, Water Code, is amended
97	97	by adding Section 36.1025 to read as follows:
98	98	Sec. 36.1025. PETITION TO CHANGE RULES. (a) A person with
99	99	a real property interest in groundwater may petition the district
100	100	where the property that gives rise to the real property interest is
101	101	located to adopt a rule or modify a rule adopted under this chapter.
102	102	(b) The district by rule shall prescribe the form for a
103	103	petition submitted under this section and the procedure for the
104	104	submission, consideration, and disposition of the petition.
105	105	(c) Not later than the 90th day after the date the district
106	106	receives the petition, the district shall:
107	107	(1) deny the petition and provide an explanation for
108	108	the denial; or
109	109	(2) engage in rulemaking consistent with the granted
110	110	petition.
111	111	(d) Nothing in this section may be construed to create a
112	112	private cause of action for a decision to accept or deny a petition
113	113	filed under this section.
114	114	SECTION 5. Section 36.1071, Water Code, is amended by
115	115	amending Subsection (b) and adding Subsections (b-1) and (b-2) to
116	116	read as follows:
117	117	(b) The management plan, or any amendments to the plan,
118	118	shall:
119	119	(1) be developed using the district's best available
120	120	data and forwarded to the regional water planning group for use in
121	121	their planning process; and
122	122	(2) include the:
123	123	(A) most recently approved desired future
124	124	conditions adopted under Section 36.108; and
125	125	(B) amount of modeled available groundwater
126	126	corresponding to the most recently approved desired future
127	127	conditions.
128	128	(b-1) A district shall amend a management plan before the
129	129	second anniversary of the adoption of desired future conditions
130	130	included under Subsection (b).
131	131	(b-2) If a petition challenging the reasonableness of a
132	132	desired future condition is filed under Section 36.1083(b), the
133	133	executive administrator shall consider the management plan
134	134	administratively complete if the district includes:
135	135	(1) the most recently approved desired future
136	136	conditions adopted under Section 36.108;
137	137	(2) the amount of modeled available groundwater
138	138	corresponding to the desired future conditions;
139	139	(3) a statement of the status of the petition
140	140	challenging the reasonableness of a desired future condition; and
141	141	(4) the information required by Subsections (a) and
142	142	(e).
143	143	SECTION 6. Section 36.108, Water Code, is amended by
144	144	amending Subsection (d) and adding Subsection (d-5) to read as
145	145	follows:
146	146	(d) Not later than May 1, 2021, and every five years
147	147	thereafter, the districts shall consider groundwater availability
148	148	models and other data or information for the management area and
149	149	shall propose for adoption desired future conditions for the
150	150	relevant aquifers within the management area. Before voting on the
151	151	proposed desired future conditions of the aquifers under Subsection
152	152	(d-2), the districts shall consider:
153	153	(1) aquifer uses or conditions within the management
154	154	area, including conditions that differ substantially from one
155	155	geographic area to another;
156	156	(2) the water supply needs and water management
157	157	strategies included in the state water plan;
158	158	(3) hydrological conditions[, including] for each
159	159	aquifer in the management area, including:
160	160	(A) the total estimated recoverable storage; [as
161	161	provided by the executive administrator, and]
162	162	(B) the average annual recharge, inflows, and
163	163	discharge; and
164	164	(C) if calculated by the executive
165	165	administrator, the modeled sustained groundwater pumping;
166	166	(4) other environmental impacts, including impacts on
167	167	spring flow and other interactions between groundwater and surface
168	168	water;
169	169	(5) the impact on subsidence;
170	170	(6) socioeconomic impacts reasonably expected to
171	171	occur;
172	172	(7) the impact on the interests and rights in private
173	173	property, including ownership and the rights of management area
174	174	landowners and their lessees and assigns in groundwater as
175	175	recognized under Section 36.002;
176	176	(8) the feasibility of achieving the desired future
177	177	condition; and
178	178	(9) any other information relevant to the specific
179	179	desired future conditions.
180	180	(d-5) Notwithstanding Subsection (d)(3), the executive
181	181	administrator may not calculate the modeled sustained groundwater
182	182	pumping for an aquifer or an aquifer that wholly or partly underlies
183	183	an aquifer with a recharge rate such that an owner of land that
184	184	overlies the aquifer qualifies or has previously qualified under
185	185	federal tax law for a cost depletion deduction for the groundwater
186	186	withdrawn from the aquifer for irrigation purposes.
187	187	SECTION 7. Section 36.113(d), Water Code, is amended to
188	188	read as follows:
189	189	(d) This subsection does not apply to the renewal of an
190	190	operating permit issued under Section 36.1145. Before granting or
191	191	denying a permit, or a permit amendment issued in accordance with
192	192	Section 36.1146, the district shall consider whether:
193	193	(1) the application conforms to the requirements
194	194	prescribed by this chapter and is accompanied by the prescribed
195	195	fees;
196	196	(2) the proposed use of water unreasonably affects:
197	197	(A) existing groundwater and surface water
198	198	resources; [or]
199	199	(B) existing permit holders; or
200	200	(C) wells that are exempt from the requirement to
201	201	obtain a permit under this chapter or district rules;
202	202	(3) the proposed use of water is dedicated to any
203	203	beneficial use;
204	204	(4) the proposed use of water is consistent with the
205	205	district's approved management plan;
206	206	(5) if the well will be located in the Hill Country
207	207	Priority Groundwater Management Area, the proposed use of water
208	208	from the well is wholly or partly to provide water to a pond, lake,
209	209	or reservoir to enhance the appearance of the landscape;
210	210	(6) the applicant has agreed to avoid waste and
211	211	achieve water conservation; and
212	212	(7) the applicant has agreed that reasonable diligence
213	213	will be used to protect groundwater quality and that the applicant
214	214	will follow well plugging guidelines at the time of well closure.
215	215	SECTION 8. Subchapter D, Chapter 36, Water Code, is amended
216	216	by adding Section 36.1141 to read as follows:
217	217	Sec. 36.1141. NOTICE REQUIRED FOR APPLICATION FOR PERMIT OR
218	218	PERMIT AMENDMENT. (a) Except as provided by Subsection (b), a
219	219	district that has adopted rules regulating the spacing of wells
220	220	under Section 36.116(a)(1) to require wells to be spaced a certain
221	221	distance from other wells shall adopt rules requiring that notice
222	222	of an application for a permit or permit amendment to drill a well
223	223	or increase the production capacity of an existing well be provided
224	224	to each landowner whose:
225	225	(1) land is located wholly or partly within the
226	226	spacing distances from other wells under the spacing rules of the
227	227	district; and
228	228	(2) right to obtain a permit or permit amendment for a
229	229	well of a certain size or location under the spacing rules of the
230	230	district will be affected if the district approves the application.
231	231	(b) Notice is not required under Subsection (a):
232	232	(1) for a replacement well to be drilled at or near the
233	233	location of the well which it is intended to replace that has an
234	234	equal or lesser production capacity than the well which it is
235	235	intended to replace as determined by the rules of the district;
236	236	(2) for an emergency well necessary to mitigate a loss
237	237	of production capacity of an existing well as determined by the
238	238	rules of the district;
239	239	(3) if the notice is to be provided to the lessors of
240	240	the right to produce groundwater from a property where the
241	241	applicant for the permit or permit amendment is the lessee; or
242	242	(4) if the district:
243	243	(A) posts in a place readily accessible to the
244	244	public at the district's main office a list of the applications
245	245	described by Subsection (a) that includes the name of the applicant
246	246	and address or approximate location of the well or proposed well;
247	247	and
248	248	(B) posts on the home page of the district's
249	249	Internet website, if the district operates an Internet website:
250	250	(i) a list described by Paragraph (A); or
251	251	(ii) a link to a web application that
252	252	includes the information included on a list described by Paragraph
253	253	(A).
254	254	SECTION 9. Section 36.122, Water Code, is amended by
255	255	amending Subsections (e) and (p) and adding Subsections (e-1),
256	256	(e-2), and (e-3) to read as follows:
257	257	(e) Except as provided by Subsection (e-1), the [The]
258	258	district may impose an export fee or surcharge using one of the
259	259	following methods:
260	260	(1) a fee negotiated between the district and the
261	261	exporter;
262	262	(2) for a tax-based district, a rate not to exceed 20
263	263	cents [the equivalent of the district's tax rate per hundred
264	264	dollars of valuation] for each thousand gallons of water exported
265	265	from the district [or 2.5 cents per thousand gallons of water, if
266	266	the district assesses a tax rate of less than 2.5 cents per hundred
267	267	dollars of valuation]; or
268	268	(3) for a fee-based district, a rate not to exceed the
269	269	greater of 20 cents for each thousand gallons or a 50 percent
270	270	surcharge, in addition to the district's production fee, for water
271	271	exported from the district.
272	272	(e-1) Effective January 1, 2024, the maximum allowable rate
273	273	a district may impose for an export fee or surcharge under
274	274	Subsection (e)(2) or (e)(3) increases by three percent each
275	275	calendar year.
276	276	(e-2) A district governed by a special law in regard to an
277	277	export fee or surcharge on water exported from the district may
278	278	charge an export fee or surcharge in accordance with that special
279	279	law or in accordance with Subsections (e) and (e-1).
280	280	(e-3) An export fee or surcharge imposed under Subsection
281	281	(e) or an increase in an imposed export fee or surcharge is not
282	282	valid unless it is approved by the board after a public hearing.
283	283	(p) Subsections [Subsection] (e), (e-1), and (e-2) do
284	284	[does] not apply to a district that is collecting an export fee or
285	285	surcharge on March 1, 2001.
286	286	SECTION 10. Section 36.207, Water Code, is amended to read
287	287	as follows:
288	288	Sec. 36.207. USE OF FEES. A district may use funds obtained
289	289	from administrative, production, or export fees collected under a
290	290	special law governing the district or this chapter for any purpose
291	291	consistent with the district's approved management plan,
292	292	including, without limitation, making grants, loans, or
293	293	contractual payments to achieve, facilitate, or expedite
294	294	reductions in groundwater pumping or the development or
295	295	distribution of alternative water supplies or to maintain the
296	296	operability of wells significantly affected by groundwater
297	297	development to allow for the highest practicable level of
298	298	groundwater production while achieving the desired future
299	299	conditions established under Section 36.108.
300	300	SECTION 11. Section 36.3011, Water Code, is amended by
301	301	amending Subsection (d) and adding Subsections (d-1), (d-2), (d-3),
302	302	(e-1), (e-2), and (e-3) to read as follows:
303	303	(d) If the petition is not dismissed under Subsection (c),
304	304	the commission shall appoint a review panel consisting of a
305	305	chairperson and four other members. A director or general manager
306	306	of a district located outside the management area that is the
307	307	subject of the petition may be appointed to the review panel. The
308	308	commission may not appoint more than two members of the review panel
309	309	from any one district. The commission also shall appoint a
310	310	disinterested person to serve as a nonvoting recording secretary
311	311	for the review panel. The recording secretary shall [may] be an
312	312	employee of the commission. The recording secretary shall record
313	313	and document the proceedings of the panel.
314	314	(d-1) A review panel established under Subsection (d) is an
315	315	advisory body to the commission and not a governmental body under
316	316	Chapter 551 or 552, Government Code.
317	317	(d-2) The commission shall reimburse a member appointed to
318	318	the review panel for actual expenses incurred while engaging in
319	319	activities on behalf of the review panel. To be eligible for
320	320	reimbursement, the member must file with the executive director a
321	321	verified statement, including any relevant receipts, describing
322	322	the expenses incurred. A member appointed to the review panel is
323	323	not entitled to a fee of office or other compensation for serving on
324	324	the review panel.
325	325	(d-3) The records and documents of the recording secretary
326	326	of the proceedings of the review panel must be provided to the
327	327	executive director and are public information under Chapter 552,
328	328	Government Code.
329	329	(e-1) Not later than the seventh day before the date of a
330	330	public meeting or public hearing of the review panel under
331	331	Subsection (e), the executive director shall provide notice of any
332	332	public meeting or public hearing the review panel is directed to
333	333	conduct by:
334	334	(1) posting notice on the commission's Internet
335	335	website; and
336	336	(2) regular mail to:
337	337	(A) the district that is the subject of the
338	338	petition;
339	339	(B) the petitioner; and
340	340	(C) the county clerk of each county in the
341	341	district that is the subject of the petition.
342	342	(e-2) The commission or the review panel may submit a
343	343	written request to the executive administrator for assistance on a
344	344	technical issue related to the petition. The executive
345	345	administrator shall provide the technical assistance not later than
346	346	the 120th day after the date the executive administrator receives
347	347	the request. A deadline under Subsection (c), (e), or (h) is
348	348	extended by 120 days if a request for technical assistance is
349	349	submitted to the executive administrator during a review phase
350	350	under that subsection.
351	351	(e-3) On request from a member of the review panel, the
352	352	office of public interest counsel of the commission shall provide
353	353	legal advice and assistance to the review panel. Notwithstanding
354	354	Section 5.273, the office of public interest counsel:
355	355	(1) may not participate as a party in an inquiry under
356	356	this section; and
357	357	(2) has no duty or responsibility to represent the
358	358	public interest or otherwise in an inquiry except as provided by
359	359	this subsection.
360	360	SECTION 12. The following provisions of the Water Code are
361	361	repealed:
362	362	(1) Sections 11.202(d) and (e);
363	363	(2) Section 11.203;
364	364	(3) Section 11.204; and
365	365	(4) Section 11.207.
366	366	SECTION 13. Not later than December 1, 2023, a groundwater
367	367	conservation district shall adopt rules to implement Section
368	368	36.1025, Water Code, as added by this Act.
369	369	SECTION 14. The changes in law made by this Act applicable
370	370	to a petition filed under Section 36.1083, Water Code, apply only to
371	371	a petition filed under that section on or after the effective date
372	372	of this Act. A petition filed before the effective date of this Act
373	373	is governed by the law in effect on the date the hearing was
374	374	conducted, and the former law is continued in effect for that
375	375	purpose.
376	376	SECTION 15. Section 36.1141, Water Code, as added by this
377	377	Act, applies only to an application for a permit or permit amendment
378	378	submitted on or after the effective date of this Act. An application
379	379	submitted before the effective date of this Act is subject to the
380	380	law in effect on the date the application is submitted, and that law
381	381	is continued in effect for that purpose.
382	382	SECTION 16. Section 36.3011, Water Code, as amended by this
383	383	Act, applies only to a petition requesting an inquiry regarding the
384	384	duties of a groundwater conservation district filed with the Texas
385	385	Commission on Environmental Quality on or after the effective date
386	386	of this Act. A petition filed with the Texas Commission on
387	387	Environmental Quality before the effective date of this Act is
388	388	governed by the law in effect on the date the petition was filed,
389	389	and the former law is continued in effect for that purpose.
390	390	SECTION 17. This Act takes effect September 1, 2023.