By Counts H.B. No. 2646
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the powers, duties and jurisdiction of the Texas Water
1-3 Development Board and the Texas Water Commission or its successor
1-4 agency and transferring certain responsibilities to the Texas Water
1-5 Development Board.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 5.119, Water Code, is amended to read as
1-8 follows:
1-9 Sec. 5.119. Commission to be Knowledgeable. The commission
1-10 shall be knowledgeable of the watercourses and natural resources of
1-11 the state and of the needs of the state concerning <the use,
1-12 storage and conservation of water and> the use and conservation of
1-13 other natural resources and of the need to maintain the quality of
1-14 the environment in the state.
1-15 SECTION 2. Section 5.235, Water Code, is amended to read as
1-16 follows:
1-17 Sec. 5.235. Fees. (a) The executive director shall charge
1-18 and collect the fees prescribed by this section. The executive
1-19 director shall make a record of fees prescribed when due and shall
1-20 render an account to the person charged with the fees. Each fee is
1-21 a separate charge and is in addition to other fees unless provided
1-22 otherwise.
1-23 (b) Except as specifically provided by this section, the fee
2-1 for filing an application or petition is $100 plus the cost of any
2-2 required notice. The fee for a by-pass permit shall be set by the
2-3 commission at a reasonable amount to recover costs, but not less
2-4 than $100.
2-5 <(c) The fee for filing a water permit application is $100
2-6 plus the cost of required notice.>
2-7 <(d) The fee for filing an application for fixing or
2-8 adjusting rates is $100 plus the cost of required notice.>
2-9 <(e) A person who files with the commission a petition for
2-10 the creation of a water district or addition of sewage and drainage
2-11 powers or a resolution for a water district conversion must pay a
2-12 one-time nonrefundable application fee. The commission by rule may
2-13 set the application fee in an amount not to exceed $700, plus the
2-14 cost of required notice. This fee is the only fee that the
2-15 commission may charge with regard to the processing of an
2-16 application for creation of a water district, addition of sewage or
2-17 drainage powers, or conversion under this code.>
2-18 <(f) A person who files a bond issue application with the
2-19 commission must pay an application fee set by the commission. The
2-20 commission by rule may set the application fee in an amount not to
2-21 exceed $500, plus the cost of required notice. If the bonds are
2-22 approved by the commission, the seller shall pay to the commission
2-23 a percentage of the bond proceeds not later than the seventh
2-24 business day after receipt of the bond proceeds. The commission by
2-25 rule may set the percentage of the proceeds in an amount not to
3-1 exceed 0.25 percent of the principal amount of the bonds actually
3-2 issued. Revenue from these fees shall be deposited in the state
3-3 treasury and credited to the water quality fund. Proceeds of the
3-4 fees shall be used to supplement any other funds available for
3-5 paying expenses of the commission in supervising the various bond
3-6 and construction activities of the districts filing the
3-7 applications.>
3-8 <(g)>(c) The fee for recording an instrument in the office
3-9 of the commission is $1.25 per page.
3-10 <(h) The fee for the use of water for irrigation is 50 cents
3-11 per acre to be irrigated.>
3-12 <(i) The fee for impounding water, except under Section
3-13 11.142 of this code, is 50 cents per acre-foot of storage, based on
3-14 the total holding capacity of the reservoir at normal operating
3-15 level.>
3-16 <(j) The fee for other uses of water not specifically named
3-17 in this section is $1 per acre-foot, except that no political
3-18 subdivision may be required to pay fees to use water for recharge
3-19 of underground freshwater-bearing sands and aquifers or for
3-20 abatement of natural pollution.>
3-21 <(k) A fee charged under this section for one use of water
3-22 under a permit from the commission may not exceed $25,000. The fee
3-23 for each additional use of water under a permit for which the
3-24 maximum fee is paid may not exceed $5,000.>
3-25 <(l) The fees prescribed by Subsections (h) through (j) of
4-1 this section are one-time fees, payable when the application for an
4-2 appropriation is made. However, if the total fee for a permit
4-3 exceeds $1,000, the applicant shall pay one-tenth of the fee when
4-4 the application is filed, one-tenth within 30 days after notice is
4-5 mailed to him that the permit is granted, and the balance before he
4-6 begins to use water under the permit. If the applicant does not
4-7 pay all of the amount owed before beginning to use water under the
4-8 permit, the permit is annulled.>
4-9 <(m) If a permit is annulled, the matter reverts to the
4-10 status of a pending, filed application and, on the payment of use
4-11 fees as provided by this subsection together with sufficient
4-12 postage fees for mailing notice of hearing, the commission shall
4-13 set the application for hearing and proceed as provided by this
4-14 code.>
4-15 <(n) (1) Each provider of potable water or sewer utility
4-16 service shall collect a regulatory assessment from each retail
4-17 customer as follows:>
4-18 <(A) A public utility as defined in Section
4-19 13.002 of this code shall collect from each retail customer a
4-20 regulatory assessment equal to one percent of the charge for retail
4-21 water or sewer service.>
4-22 <(B) A water supply or sewer service corporation
4-23 as defined in Section 13.002 of this code shall collect from each
4-24 retail customer a regulatory assessment equal to one-half of one
4-25 percent of the charge for retail water or sewer service.>
5-1 <(C) A district as defined in Section 50.001 of
5-2 this code that provides potable water or sewer utility service to
5-3 retail customers shall collect from each retail customer a
5-4 regulatory assessment equal to one-half of one percent of the
5-5 charge for retail water or sewer service.>
5-6 <(2) The regulatory assessment may be listed on the
5-7 customer's bill as a separate item and shall be collected in
5-8 addition to other charges for utility services.>
5-9 <(3) The commission shall use the assessments collected
5-10 from districts solely to pay costs and expenses incurred by the
5-11 board in the regulation of districts.>
5-12 <(4) The commission shall use the assessments collected
5-13 from water supply or sewer service corporations solely to pay costs
5-14 and expenses incurred by the commission in the regulation of water
5-15 supply or sewer service corporations.>
5-16 <(5) The commission shall use the assessments collected
5-17 from public utilities solely to pay costs and expenses incurred by
5-18 the board in the regulation of public utilities.>
5-19 <(6) The commission shall annually use a portion of the
5-20 assessments to provide on-site-technical assistance and training to
5-21 public utilities, water supply or sewer service corporations, and
5-22 districts. The commission shall contract with others to provide
5-23 the services.>
5-24 <(7) Except as provided by Paragraph (A) of this
5-25 subdivision, assessments collected from retail customers for the
6-1 prior 12 months are due on January 15 of each year. The executive
6-2 director shall collect all assessments from the utility service
6-3 providers, and those funds shall be paid into the state treasury
6-4 and credited to the water utility fund.>
6-5 <(A) A utility service provider may make
6-6 quarterly payments due on January 15, April 15, July 15, and
6-7 October 15 of each year. If payments are made quarterly and
6-8 received by the commission not later than the 30th day after the
6-9 due date, the utility service provider may retain an administrative
6-10 fee equal to 10 percent of the amount due for costs incurred in
6-11 collecting and remitting the assessment.>
6-12 <(B) The commission shall assess on a utility
6-13 service provider a penalty equal to 10 percent of the amount due
6-14 for any payment received after January 31. Funds delinquent for
6-15 more than 30 days shall draw interest at the rate of 10 percent a
6-16 year on the assessment and penalty due.>
6-17 <(C) The commission shall assess a penalty
6-18 against a municipality with a population of more than 1.5 million
6-19 that does not provide municipal water and sewer services in an
6-20 annexed area on or before 4-1/2 years after the annexation takes
6-21 effect in accordance with Section 43.056, Local Government Code. A
6-22 penalty assessed under this paragraph shall be not more than $1,000
6-23 for each day the services are not provided after 4-1/2 years after
6-24 the annexation. A penalty collected under this paragraph shall be
6-25 deposited into a special fund in the state treasury to be used to
7-1 provide water and sewer service to residents of the city.>
7-2 <(8) The regulatory assessment does not apply to water
7-3 that has not been treated for the purpose of human consumption.>
7-4 SECTION 3. Amend Section 6.012 of the Water Code to read as
7-5 follows:
7-6 Sec. 6.012. General Duties and Responsibilities. (a) The
7-7 board has general jurisdiction over:
7-8 (1) use of state water;
7-9 (2) <(1)> the development of a statewide water plan;
7-10 (3) <(2)> the administration of the state's various
7-11 water assistance and financing programs including those created by
7-12 the constitution; and
7-13 (4) <(3)> other areas specifically assigned to the
7-14 board by this code or other law.
7-15 SECTION 4. Chapter 6, Water Code, is amended by adding
7-16 Section 6.196.
7-17 Sec. 6.196. FEES. (a) The executive administrator shall
7-18 charge and collect the fees prescribed by this section. The
7-19 executive administrator shall make a record of fees prescribed when
7-20 due and shall render an account to the person charged with the
7-21 fees. Each fee is a separate charge and is in addition to other
7-22 fees unless provided otherwise.
7-23 (b) The fee for filing a water permit application is $100
7-24 plus the cost of required notice.
7-25 (c) The fee for filing an application for fixing or
8-1 adjusting rates is $100 plus the cost of required notice.
8-2 (d) A person who files with the board a petition for the
8-3 creation of a water district or addition of sewage and drainage
8-4 powers or a resolution for a water district conversion must pay a
8-5 one-time nonrefundable application fee. The board by rule may set
8-6 the application fee in an amount not to exceed $700, plus the cost
8-7 of required notice. This fee is the only fee that the board may
8-8 charge with regard to the processing of an application for creation
8-9 of a water district, addition of sewage or drainage powers, or
8-10 conversion under this code.
8-11 (e) A person who files a bond issue application with the
8-12 board must pay an application fee set by the board. The board by
8-13 rule may set the application fee in an amount not to exceed $500,
8-14 plus the cost of required notice. If the bonds are approved by the
8-15 board, the seller shall pay to the board a percentage of the bond
8-16 proceeds not later than the seventh business day after receipt of
8-17 the bond proceeds. The board by rule may set the percentage of the
8-18 proceeds in an amount not to exceed 0.25 percent of the principal
8-19 amount of the bonds actually issued. Revenue from these fees shall
8-20 be deposited in the state treasury and credited to the water
8-21 quality fund. Proceeds of the fees shall be used to supplement any
8-22 other funds available for paying expenses of the board in
8-23 supervising the various bond and construction activities of the
8-24 districts filing the applications.
8-25 (f) The fee for recording an instrument in the office of the
9-1 board is $1.25 per page.
9-2 (g) The fee for the use of water for irrigation is 50 cents
9-3 per acre to be irrigated.
9-4 (h) The fee for impounding water, except under Section
9-5 11.142 of this code, is 50 cents per acre-foot of storage, based on
9-6 the total holding capacity of the reservoir at normal operating
9-7 level.
9-8 (i) The fee for other uses of water not specifically named
9-9 in this section is $1 per acre-foot, except that no political
9-10 subdivision may be required to pay fees to use water for recharge
9-11 of underground freshwater-bearing sands and aquifers or for
9-12 abatement of natural pollution.
9-13 (j) A fee charged under this section for one use of water
9-14 under a permit from the board may not exceed $25,000. The fee for
9-15 each additional use of water under a permit for which the maximum
9-16 fee is paid may not exceed $5,000.
9-17 (k) The fees prescribed by Subsections (g) through (i) of
9-18 this section are one-time fees, payable when the application for an
9-19 appropriation is made. However, if the total fee for a permit
9-20 exceeds $1,000, the applicant shall pay one-tenth of the fee when
9-21 the application is filed, one-tenth within 30 days after notice is
9-22 mailed to him that the permit is granted, and the balance before he
9-23 begins to use water under the permit. If the applicant does not
9-24 pay all of the amount owed before beginning to use water under the
9-25 permit, the permit is annulled.
10-1 (l) If a permit is annulled, the matter reverts to the
10-2 status of a pending, filed application and, on the payment of use
10-3 fees as provided by this subsection together with sufficient
10-4 postage fees for mailing notice of hearing, the board shall set the
10-5 application for hearing and proceed as provided by this code.
10-6 (m) (1) Each provider of potable water or sewer utility
10-7 service shall collect a regulatory assessment from each retail
10-8 customer as follows:
10-9 (A) A public utility as defined in Section
10-10 13.002 of this code shall collect from each retail customer a
10-11 regulatory assessment equal to one percent of the charge for retail
10-12 water or sewer service.
10-13 (B) A water supply or sewer service corporation
10-14 as defined in Section 13.002 of this code shall collect from each
10-15 retail customer a regulatory assessment equal to one-half of one
10-16 percent of the charge for retail water or sewer service.
10-17 (C) A district as defined in Section 50.001 of
10-18 this code that provides potable water or sewer utility service to
10-19 retail customers shall collect from each retail customer a
10-20 regulatory assessment equal to one-half of one percent of the
10-21 charge for retail water or sewer service.
10-22 (2) The regulary assessment may be listed on the
10-23 customer's bill as a separate item and shall be collected in
10-24 addition to other charges for utility services.
10-25 (3) The board shall use the assessments collected from
11-1 districts solely to pay costs and expenses incurred by the board in
11-2 the regulation of districts.
11-3 (4) The board shall use the assessments collected from
11-4 water supply or sewer service corporations solely to pay costs and
11-5 expenses incurred by the commission in the regulation of water
11-6 supply or sewer service corporations.
11-7 (5) The board shall use the assessments collected from
11-8 public utilities solely to pay costs and expenses incurred by the
11-9 board in the regulation of public utilities.
11-10 (6) The board shall annually use a portion of the
11-11 assessments to provide on-site technical assistance and training to
11-12 public utilities, water supply or sewer service corporations, and
11-13 districts. The board shall contract with others to provide the
11-14 services.
11-15 (7) Except as provided by Paragraph (A) of this
11-16 subdivision, assessments collected from retail customers for the
11-17 prior 12 months are due on January 15 of each year. The executive
11-18 administrator shall collect all assessments from the utility
11-19 service providers, and those funds shall be paid into the state
11-20 treasury and credited to the water utility fund.
11-21 (A) A utility service provider may make
11-22 quarterly payments due on January 15, April 15, July 15, and
11-23 October 15 of each year. If payments are made quarterly and
11-24 received by the board not later than the 30th day after the due
11-25 date, the utility service provider may retain an administrative fee
12-1 equal to 10 percent of the amount due for costs incurred in
12-2 collecting and remitting the assessment.
12-3 (B) The board shall assess on a utility service
12-4 provider a penalty equal to 10 percent of the amount due for any
12-5 payment received after January 31. Funds delinquent for more than
12-6 30 days shall draw interest at the rate of 10 percent a year on the
12-7 assessment and penalty due.
12-8 (C) The board shall assess a penalty against a
12-9 municipality with a population of more than 1.5 million that does
12-10 not provide municipal water and sewer services in an annexed area
12-11 on or before 4-1/2 years after the annexation takes effect in
12-12 accordance with Section 43.056, Local Government Code. A penalty
12-13 assessed under this paragraph shall be not more than $1,000 for
12-14 each day the services are not provided after 4-1/2 years after the
12-15 annexation. A penalty collected under this paragraph shall be
12-16 deposited into a special fund in the state treasury to be used to
12-17 provide water and sewer service to residents of the city.
12-18 (8) The regulatory assessment does not apply to water
12-19 that has not been treated for the purpose of human consumption.
12-20 SECTION 5. Section 11.002, Water Code, is amended as
12-21 follows:
12-22 Sec. 11.002. Definitions. In this chapter and in Chapter 12
12-23 of this code:
12-24 <(1) "Commission" means the Texas Natural Resource
12-25 Conservation Commission.>
13-1 (1) <(2)> "Board" means the Texas Water Development
13-2 Board.
13-3 (2) <(3)> "Executive administrator <director>" means
13-4 the executive administrator <director> of the Texas Water
13-5 Development Board <Texas Natural Resource Conservation Commission>.
13-6 (3) <(4)> "Beneficial use" means use of the amount of
13-7 water which is economically necessary for a purpose authorized by
13-8 this chapter, when reasonable intelligence and reasonable diligence
13-9 are used in applying the water to that purpose.
13-10 (4) <(5)> "Water right" means a right acquired under
13-11 the laws of this state to impound, divert, or use state water.
13-12 (5) <(6)> "Appropriator" means a person who has made
13-13 beneficial use of any water in a lawful manner under the provisions
13-14 of any act of the legislature before the enactment of Chapter 171,
13-15 General Laws, Acts of the 33rd Legislature, 1913, as amended, and
13-16 who has filed with the State Board of Water Engineers a record of
13-17 his appropriation as required by the 1913 Act, as amended, or a
13-18 person who makes or has made beneficial use of any water within the
13-19 limitations of a permit lawfully issued by the commission or one of
13-20 its predecessors.
13-21 (6) <(7)> Renumbered as subd. (6) by Acts 1985, 69th
13-22 Leg., ch. 795, Sec. 1.003, eff. Sept. 1, 1985.
13-23 (7) <(8)> "Conservation" means:
13-24 (A) the development of water resources; and
13-25 (B) those practices, techniques, and
14-1 technologies that will reduce the consumption of water, reduce the
14-2 loss or waste of water, improve the efficiency in the use of water,
14-3 or increase the recycling and reuse of water so that a water supply
14-4 is made available for future or alternative uses.
14-5 SECTION 6. Section 11.004, Water Code, is amended to read as
14-6 follows:
14-7 Sec. 11.004. Board <Commission> to Receive Certified Copies
14-8 of Judgments, Etc.
14-9 When any court of record renders a judgment, decree, or order
14-10 affecting the title to any water right, claim, appropriation, or
14-11 irrigation facility or affecting any matter over which the board
14-12 <commission> is given supervision by law, the clerk of the court
14-13 shall immediately transmit to the board <commission> a certified
14-14 copy of the judgment, decree, or order.
14-15 SECTION 7. Section 11.026, Water Code, is amended to read as
14-16 follows:
14-17 Sec. 11.026. Perfection of an Appropriation.
14-18 No right to appropriate water is perfected unless the water
14-19 has been beneficially used for a purpose stated in the original
14-20 declaration of intention to appropriate water or stated in a permit
14-21 issued by the board <commission> or one of its predecessors.
14-22 SECTION 8. Section 11.031, Water Code, is amended to read as
14-23 follows:
14-24 Sec. 11.031. Annual Report. (a) Not later than March 1 of
14-25 each year, each person who has a water right issued by the board
15-1 <commission> or who impounded, diverted, or otherwise used state
15-2 water during the preceding calendar year shall submit a written
15-3 report to the board <commission> on a form prescribed by the board
15-4 <commission>. The report shall contain all information required by
15-5 the board <commission> to aid in administering the water law and in
15-6 making inventory of the state's water resources. However, with the
15-7 exception of those persons who hold water rights, no report is
15-8 required of persons who take water solely for domestic or livestock
15-9 purposes.
15-10 (b) A person who fails to file an annual report with the
15-11 board <commission> as required by this section is liable to a
15-12 penalty of $25, plus $1 per day for each day he fails to file the
15-13 statement after March 1. However, the maximum penalty under this
15-14 section is $150. The state may sue to recover the penalty.
15-15 (c) The board <commission> may waive the requirements of
15-16 Subsection (a) of this section for a person who has a water right
15-17 or uses state water in an area of the state where watermaster
15-18 operations are established.
15-19 SECTION 9. Section 11.034, Water Code, is amended to read as
15-20 follows:
15-21 Sec. 11.034. Reservoir Site: Land and Rights-of-Way.
15-22 An appropriator who is authorized to construct a dam or
15-23 reservoir is granted the right-of-way, not to exceed 100 feet wide,
15-24 and the necessary area for the site, over any public school land,
15-25 university land, or asylum land of this state and the use of the
16-1 rock, gravel, and timber on the site and right-of-way for
16-2 construction purposes, after paying compensation as determined by
16-3 the board <commission>. An appropriator may acquire the reservoir
16-4 site and rights-of-way over private land by contract.
16-5 SECTION 10. Section 11.035, Water Code, is amended to read
16-6 as follows:
16-7 Sec. 11.035. Condemnation of Private Property. (a) An
16-8 appropriator may obtain rights-of-way over private land and may
16-9 obtain the land necessary for pumping plants, intakes, headgates,
16-10 and storage reservoirs by condemnation.
16-11 (b) The party obtaining private property by condemnation
16-12 shall cause damages to be assessed and paid for as provided by the
16-13 statutes of this state relating to eminent domain.
16-14 (c) If the party exercising the power granted by this
16-15 section is not a corporation, district, city, or town, he shall
16-16 apply to the board <commission> for the condemnation.
16-17 (d) The executive administrator <director> shall have the
16-18 proposed condemnation investigated. After the investigation, the
16-19 board <commission> may give notice to the party owning the land
16-20 proposed to be condemned and hold a hearing on the proposed
16-21 condemnation.
16-22 (e) If after a hearing the board <commission> determines
16-23 that the condemnation is necessary, the executive administrator
16-24 <director> may institute condemnation proceedings in the name of
16-25 the State of Texas for the use and benefit of the party who applied
17-1 for the condemnation and all others similarly situated.
17-2 (f) The parties at whose instance a condemnation suit is
17-3 instituted shall pay the costs of the suit and condemnation in
17-4 proportion to the benefits received by each party as fixed by the
17-5 board <commission>. Before using any of the condemned rights or
17-6 property, a party receiving the rights or property shall pay the
17-7 amount of costs fixed by the board <commission>.
17-8 (g) If, after the costs of the condemnation proceedings have
17-9 been paid, a party seeks to take the benefits of the condemnation
17-10 proceedings, he shall apply to the board <commission> for the
17-11 benefits. The board <commission> may grant the application and fix
17-12 the fees and charges to be paid by the applicant.
17-13 SECTION 11. Section 11.036, Water Code, is amended as
17-14 follows:
17-15 Sec. 11.036. Conserved or Stored Water: Supply Contract.
17-16 (a) A person, association of persons, corporation, or water
17-17 improvement or irrigation district having in possession and control
17-18 any storm water, floodwater, or rainwater that is conserved or
17-19 stored as authorized by this chapter may contract to supply the
17-20 water to any person, association of persons, corporation, or water
17-21 improvement or irrigation district having the right to acquire use
17-22 of the water.
17-23 (b) The price and terms of the contract shall be just and
17-24 reasonable and without discrimination, and the contract is subject
17-25 to the same revision and control as provided in this code for other
18-1 water rates and charges. If any person uses the stored or
18-2 conserved water without first entering into a contract with the
18-3 party that conserved or stored it, the user shall pay for the use
18-4 at a rate determined by the board <commission> to be just and
18-5 reasonable, subject to court review as in other cases.
18-6 SECTION 12. Section 11.041, Water Code, is amended as
18-7 follows:
18-8 Sec. 11.041. Denial of Water: Complaint. (a) Any person
18-9 entitled to receive or use water from any canal, ditch, flume,
18-10 lateral, dam, reservoir, or lake or from any conserved or stored
18-11 supply may present to the board <commission> a written petition
18-12 showing:
18-13 (1) that he is entitled to receive or use the water;
18-14 (2) that he is willing and able to pay a just and
18-15 reasonable price for the water;
18-16 (3) that the party owning or controlling the water
18-17 supply has water not contracted to others and available for the
18-18 petitioner's use; and
18-19 (4) that the party owning or controlling the water
18-20 supply fails or refuses to supply the available water to the
18-21 petitioner, or that the price or rental demanded for the available
18-22 water is not reasonable and just or is discriminatory.
18-23 (b) If the petition is accompanied by a deposit of $25, the
18-24 executive administrator <director> shall have a preliminary
18-25 investigation of the complaint made and determine whether or not
19-1 there are probable grounds for the complaint.
19-2 (c) If, after preliminary investigation, the executive
19-3 administrator <director> determines that probable grounds exist for
19-4 the complaint, the board <commission> shall enter an order setting
19-5 a time and place for a hearing on the petition.
19-6 (d) The board <commission> may require the complainant to
19-7 make an additional deposit or execute a bond satisfactory to the
19-8 board <commission> in an amount fixed by the board <commission>
19-9 conditioned on the payment of all costs of the proceeding.
19-10 (e) At least 20 days before the date set for the hearing,
19-11 the board <commission> shall transmit by registered mail a
19-12 certified copy of the petition and a certified copy of the hearing
19-13 order to the person against whom the complaint is made.
19-14 (f) The board <commission> shall hold a hearing on the
19-15 complaint at the time and place stated in the order. It may hear
19-16 evidence orally or by affidavit in support of or against the
19-17 complaint, and it may hear arguments. On completion of the
19-18 hearing, the board <commission> shall render a written decision.
19-19 (g) If, after the preliminary investigation, the executive
19-20 administrator <director> determines that no probable grounds exist
19-21 for the complaint, the executive administrator <director> shall
19-22 dismiss the complaint. The board <commission> may either return
19-23 the deposit or pay it into the State Treasury.
19-24 SECTION 13. Section 11.042, Water Code, is amended as
19-25 follows:
20-1 Sec. 11.042. Delivering Water Down Banks and Beds. Under
20-2 rules prescribed by the board <commission>, a person, association
20-3 of persons, corporation, or water improvement or irrigation
20-4 district supplying stored or conserved water under contract as
20-5 provided in this chapter may use the bank and bed of any flowing
20-6 natural stream in the state to convey the water from the place of
20-7 storage to the place of use or to the diversion plant of the
20-8 appropriator. The board <commission> shall prescribe rules for
20-9 this purpose.
20-10 SECTION 14. Section 11.084, Water Code, is amended as
20-11 follows:
20-12 Sec. 11.084. Sale of Permanent Water Right Without a Permit.
20-13 (a) No person may sell or offer to sell a permanent water
20-14 right unless he has perfected a right to appropriate state water by
20-15 a certified filing, or unless he has obtained a permit from the
20-16 board <commission>, authorizing the use of the water for the
20-17 purposes for which the permanent water right is conveyed.
20-18 (b) A person who violates Subsection (a) of this section is
20-19 guilty of a misdemeanor and upon conviction is punishable by a fine
20-20 of not less than $100 nor more than $1,000 or by confinement in the
20-21 county jail for not more than one year or by both.
20-22 SECTION 15. Section 11.085, Water Code, is amended as
20-23 follows:
20-24 Sec. 11.085. Interwatershed Transfers. (a) No person may
20-25 take or divert any of the water of the ordinary flow, underflow, or
21-1 storm flow of any stream, watercourse, or watershed in this state
21-2 into any other natural stream, watercourse, or watershed to the
21-3 prejudice of any person or property situated within the watershed
21-4 from which the water is proposed to be taken or diverted.
21-5 (b) No person may transfer water from one watershed to
21-6 another without first applying for and receiving a permit from the
21-7 board <commission> to do so. Before issuing such a permit, the
21-8 board <commission> shall hold a hearing to determine the rights
21-9 that might be affected by the transfer. The board <commission>
21-10 shall give notice and hold the hearing in the manner prescribed by
21-11 its procedural rules.
21-12 (c) A person who takes or diverts water in violation of this
21-13 section is guilty of a misdemeanor and upon conviction is
21-14 punishable by a fine of not less than $100 nor more than $500 or by
21-15 confinement in the county jail for not more than six months.
21-16 (d) A person commits a separate offense each day he
21-17 continues to take or divert water in violation of this section.
21-18 SECTION 16. Section 11.087, Water Code, is amended as
21-19 follows:
21-20 Sec. 11.087. Diversion of Water on International Stream.
21-21 (a) When storm water or floodwater is released from a dam or
21-22 reservoir on an international stream and the water is designated
21-23 for use or storage downstream by a specified user who is legally
21-24 entitled to receive it, no other person may store, divert,
21-25 appropriate, or use the water or interfere with its passage
22-1 downstream.
22-2 (b) The board <commission> may make and enforce rules and
22-3 orders to implement the provisions of this section, including rules
22-4 and orders designed to:
22-5 (1) establish an orderly system for water releases and
22-6 diversions in order to protect vested rights and to avoid the loss
22-7 of released water;
22-8 (2) prescribe the time that releases of water may
22-9 begin and end;
22-10 (3) determine the proportionate quantities of the
22-11 released water in transit and the water that would have been
22-12 flowing in the stream without the addition of the released water;
22-13 (4) require each owner or operator of a dam or
22-14 reservoir on the stream between the point of release and the point
22-15 of destination to allow free passage of the released water in
22-16 transit; and
22-17 (5) establish other requirements the board
22-18 <commission> considers necessary to effectuate the purposes of this
22-19 section.
22-20 (c) Orders made by the board <commission> to effectuate its
22-21 rules under this section need not be published, but the board
22-22 <commission> shall transmit a copy of every such order by certified
22-23 mail to each diverter of water and to each reservoir owner on the
22-24 stream between the point of release and the point of destination of
22-25 the released water as shown by the records of the board
23-1 <commission>.
23-2 (d) A person who violates any provision of this section is
23-3 guilty of a misdemeanor and upon conviction is punishable by a fine
23-4 of not more than $100 or by confinement in the county jail for not
23-5 more than six months or by both. A person commits a separate
23-6 offense each day he continues to violate this section.
23-7 SECTION 17. Section 11.0871, Water Code, is amended as
23-8 follows:
23-9 Sec. 11.0871. Temporary Diversion of Water on International
23-10 Stream. (a) The board <commission> may authorize, under
23-11 conditions stated in an order, a watermaster to provide for the
23-12 temporary diversion and use by holders of water rights of storm
23-13 water or floodwater that spills from dams and reservoirs on an
23-14 international stream and otherwise would flow into the Gulf of
23-15 Mexico without opportunity for beneficial use.
23-16 (b) In an order made by the board <commission> under this
23-17 section, the board <commission> may not discriminate between
23-18 holders of water rights from an international stream except to the
23-19 extent necessary to protect the holders of water rights from the
23-20 same source of supply.
23-21 (c) The board <commission> shall give notice by mail to
23-22 holders of water rights from an international stream and shall hold
23-23 an evidentiary hearing before entry of an order under this section.
23-24 SECTION 18. Section 11.093, Water Code, is amended as
23-25 follows:
24-1 Sec. 11.093. Abatement of Waste as Public Nuisance. (a) A
24-2 person who permits an unreasonable loss of water through faulty
24-3 design or negligent operation of any waterworks using water for a
24-4 purpose named in this chapter commits waste, and the board
24-5 <commission> may declare the works causing the waste to be a public
24-6 nuisance. The board <commission> may take the necessary action to
24-7 abate the nuisance. Also, any person who may be injured by the
24-8 waste may sue in the district court having jurisdiction over the
24-9 works causing the waste to have the operation of the works abated
24-10 as a public nuisance.
24-11 (b) In case of a wasteful use of water defined by Section
24-12 11.092 of this code, the board <commission> shall declare the use
24-13 to be a public nuisance and shall act to abate the nuisance by
24-14 directing the person supplying the water to close the water gates
24-15 of the person wasting the water and to keep them closed until the
24-16 board <commission> determines that the unlawful use of water is
24-17 corrected.
24-18 SECTION 19. Section 11.097, Water Code, is amended as
24-19 follows:
24-20 Sec. 11.097. Removal of Obstructions from Navigable Streams.
24-21 (a) On its own motion or on written request from a commissioners
24-22 court, the board <commission> shall investigate a reported natural
24-23 obstruction in a navigable stream caused by the accumulation of
24-24 limbs, logs, leaves, other tree parts, or other debris. If making
24-25 the investigation on request of a commissioners court, the board
25-1 <commission> must make its investigation not later than the 30th
25-2 day after the date on which it receives the written request from
25-3 the commissioners court.
25-4 (b) On completion of the investigation, if the board
25-5 <commission> determines that the obstruction is creating a hazard
25-6 or is having other detrimental effect on the navigable stream, the
25-7 board <commission> shall initiate action to remove the obstruction.
25-8 (c) In removing an obstruction, the board <commission> may
25-9 solicit the assistance of federal and state agencies including the
25-10 Corps of Engineers, Texas National Guard, the Parks and Wildlife
25-11 Department, and districts and authorities created under Article
25-12 III, Sections 52(b)(1) and (2), or Article XVI, Section 59, of the
25-13 Texas Constitution. Also, the board <commission> may enter into
25-14 contracts for services required to remove an obstruction. However,
25-15 no river authority may require the removal, relocation, or
25-16 reconfiguration of a floating structure which was in place before
25-17 the effective date of this Act and the effective date of any
25-18 ordinance, rule, resolution, or other act of the river authority
25-19 mandating such action unless the board <commission> determines the
25-20 structure is an obstruction to navigation.
25-21 SECTION 20. Section 11.121, Water Code, is amended as
25-22 follows:
25-23 Sec. 11.121. Permit Required
25-24 Except as provided in Sections 11.142 and 11.1421 of this
25-25 code, no person may appropriate any state water or begin
26-1 construction of any work designed for the storage, taking, or
26-2 diversion of water without first obtaining a permit from the board
26-3 <commission> to make the appropriation.
26-4 SECTION 21. Section 11.122, Water Code, is amended as
26-5 follows:
26-6 Sec. 11.122. Amendments to Water Rights Required. (a) All
26-7 holders of permits, certified filings, and certificates of
26-8 adjudication issued under Section 11.323 of this code shall obtain
26-9 from the board <commission> authority to change the place of use,
26-10 purpose of use, point of diversion, rate of diversion, acreage to
26-11 be irrigated, or otherwise alter a water right.
26-12 (b) The board <commission> shall adopt rules to effectuate
26-13 the provisions of this section.
26-14 SECTION 22. Section 11.123, Water Code, is amended as
26-15 follows:
26-16 Sec. 11.123. Permit Preferences. The board <commission>
26-17 shall give preference to applications in the order declared in
26-18 Section 11.024 of this code and to applications which will
26-19 effectuate the maximum utilization of water and are calculated to
26-20 prevent the escape of water without contribution to a beneficial
26-21 public service.
26-22 SECTION 23. Section 11.126, Water Code, is amended as
26-23 follows:
26-24 Sec. 11.126. Commission Requirements. (a) If the proposed
26-25 taking or diversion of water for irrigation exceeds nine cubic feet
27-1 per second, the executive administrator <director> may require
27-2 additional information as prescribed by this section.
27-3 (b) The executive administrator <director> may require a
27-4 continuous longitudinal profile, cross sections of the proposed
27-5 channel, and the detail plans of any proposed structure, on any
27-6 scales and with any definition the executive administrator
27-7 <director> considers necessary or expedient.
27-8 (c) If the application proposes construction of a dam
27-9 greater than six feet in height either for diversion or storage,
27-10 the executive administrator <director> may also require filing a
27-11 copy of all plans and specifications and a copy of the engineer's
27-12 field notes of any survey of the lake or reservoir. No work on the
27-13 project shall proceed until approval of the plans is obtained from
27-14 the executive administrator <director>.
27-15 (d) If the applicant is a corporation, the board
27-16 <commission> may require filing a certified copy of its articles of
27-17 incorporation, a statement of the names and addresses of its
27-18 directors and officers, and a statement of the amount of its
27-19 authorized capital stock and its paid-up capital stock.
27-20 (e) If the applicant is not a corporation, the board
27-21 <commission> may require filing a sworn statement showing the name
27-22 and address of each person interested in the appropriation, the
27-23 extent of his interest, and his financial condition.
27-24 SECTION 24. Section 11.127, Water Code, is amended as
27-25 follows:
28-1 Sec. 11.127. Additional Requirements: Drainage Plans.
28-2 If the board <commission> believes that the efficient
28-3 operation of any existing or proposed irrigation system may be
28-4 adversely affected by lack of adequate drainage facilities incident
28-5 to the work proposed to be done by an applicant, the board
28-6 <commission> may require the applicant to submit to the executive
28-7 administrator <director> for approval plans for drainage adequate
28-8 to guard against any injury which the proposed work may entail.
28-9 SECTION 25. Section 11.1271, Water Code, is amended as
28-10 follows:
28-11 Sec. 11.1271. Additional Requirements: Water Conservation
28-12 Plans. The board <commission> may require the formulation and
28-13 submission of a water conservation plan and the adoption of
28-14 reasonable water conservation measures, as defined by Subdivision
28-15 (8)(B), Section 11.002, of this code.
28-16 SECTION 26. Section 11.128, Water Code, is amended as
28-17 follows:
28-18 Sec. 11.128. Payment of Fee.
28-19 If the applicant is not exempted from payment of the filing
28-20 fee under Section 12.112 of this code, he shall pay the filing fee
28-21 prescribed by Section 12.111(b) of this code at the time he files
28-22 the application. The board <commission> shall not record, file, or
28-23 consider the application until the executive administrator
28-24 <director> certifies to the board <commission> that the fee is
28-25 paid.
29-1 SECTION 27. Section 11.130, Water Code, is amended as
29-2 follows:
29-3 Sec. 11.130. Recording Applications. (a) The executive
29-4 administrator <director> shall have all applications for
29-5 appropriations recorded in a well-bound book kept for that purpose
29-6 in the board <commission> office.
29-7 (b) The executive administrator <director> shall have the
29-8 applications indexed alphabetically in the name of:
29-9 (1) the applicant;
29-10 (2) the stream or source from which the appropriation
29-11 is sought to be made; and
29-12 (3) the county in which the appropriation is sought to
29-13 be made.
29-14 SECTION 28. Section 11.131, Water Code, is amended as
29-15 follows:
29-16 Sec. 11.131. Examination and Denial of Application Without
29-17 Hearing. (a) The board <commission> shall make a preliminary
29-18 examination of the application, and if it appears that there is no
29-19 unappropriated water in the source of supply or that the proposed
29-20 appropriation should not be allowed for other reasons, the board
29-21 <commission> may deny the application.
29-22 (b) If the board <commission> denies the application under
29-23 this section and the applicant elects not to proceed further, the
29-24 board <commission> may order any part of the fee submitted with the
29-25 application returned to the applicant.
30-1 SECTION 29. Section 11.132, Water Code, is amended as
30-2 follows:
30-3 Sec. 11.132. Notice. (a) Notice shall be given to the
30-4 persons who in the judgment of the board <commission> may be
30-5 affected by an application, including those persons listed in
30-6 Subdivision (2), Subsection (d), of this section. The board
30-7 <commission>, on the motion of a board member <commissioner> or on
30-8 the request of the executive administrator <director> or any
30-9 affected person, shall hold a public hearing on the application.
30-10 (b) If the proposed use is for irrigation, the board
30-11 <commission> shall include in the notice a general description of
30-12 the location and area of the land to be irrigated.
30-13 (c) In the notice, the board <commission> shall:
30-14 (1) state the name and address of the applicant;
30-15 (2) state the date the application was filed;
30-16 (3) state the purpose and extent of the proposed
30-17 appropriation of water;
30-18 (4) identify the source of supply and the place where
30-19 the water is to be stored or taken or diverted from the source of
30-20 supply;
30-21 (5) specify the time and location where the board
30-22 <commission> will consider the application; and
30-23 (6) give any additional information the board
30-24 <commission> considers necessary.
30-25 (d) The board <commission> may act on the application
31-1 without holding a public hearing if:
31-2 (1) not less than 30 days before the date of action on
31-3 the application by the board <commission>, the applicant has
31-4 published the board's <commission's> notice of the application at
31-5 least once in a newspaper regularly published or circulated within
31-6 the section of the state where the source of water is located;
31-7 (2) not less than 30 days before the date of action on
31-8 the application by the board <commission>, the board <commission>
31-9 mails a copy of the notice by first-class mail, postage prepaid,
31-10 to:
31-11 (A) each claimant or appropriator of water from
31-12 the source of water supply, the record of whose claim or
31-13 appropriation has been filed with the board <commission>; and
31-14 (B) all navigation districts within the river
31-15 basin concerned; and
31-16 (3) within 30 days after the date of the newspaper
31-17 publication of the board's <commission's> notice, a public hearing
31-18 has not been requested in writing by a board member <commissioner>,
31-19 the executive administrator <director>, or an affected person who
31-20 objects to the application.
31-21 (e) The inadvertent failure of the board <commission> to
31-22 mail a notice under Subdivision (2), Subsection (d), of this
31-23 section to a navigation district that is not a claimant or
31-24 appropriator of water does not prevent the board's <commission's>
31-25 consideration of the application.
32-1 (f) If, on the date specified in the notice prescribed by
32-2 Subsection (c) of this section, the board <commission> determines
32-3 that a public hearing must be held, the matter shall be remanded
32-4 for hearing without the necessity of issuing further notice other
32-5 than advising all parties of the time and place where the hearing
32-6 is to convene.
32-7 SECTION 30. Section 11.134, Water Code, is amended as
32-8 follows:
32-9 Sec. 11.134. Action on Application. (a) After the hearing,
32-10 the board <commission> shall make a written decision granting or
32-11 denying the application. The application may be granted or denied
32-12 in whole or in part.
32-13 (b) The board <commission> shall grant the application only
32-14 if:
32-15 (1) the application conforms to the requirements
32-16 prescribed by this chapter and is accompanied by the prescribed
32-17 fee;
32-18 (2) unappropriated water is available in the source of
32-19 supply;
32-20 (3) the proposed appropriation:
32-21 (A) contemplates the application of water to any
32-22 beneficial use;
32-23 (B) does not impair existing water rights or
32-24 vested riparian rights; and
32-25 (C) is not detrimental to the public welfare;
33-1 and
33-2 (4) the applicant has provided evidence that
33-3 reasonable diligence will be used to avoid waste and achieve water
33-4 conservation as defined by Subdivision (8)(B), Section 11.002, of
33-5 this code.
33-6 SECTION 31. Section 11.135, Water Code, is amended as
33-7 follows:
33-8 Sec. 11.135. Issuance of Permit. (a) On approval of an
33-9 application, the board <commission> shall issue a permit to the
33-10 applicant. The applicant's right to take and use water is limited
33-11 to the extent and purposes stated in the permit.
33-12 (b) The permit shall be in writing and attested by the seal
33-13 of the board <commission>, and it shall contain substantially the
33-14 following information:
33-15 (1) the name of the person to whom the permit is
33-16 issued;
33-17 (2) the date the permit is issued;
33-18 (3) the date the original application was filed;
33-19 (4) the use or purpose for which the appropriation is
33-20 to be made;
33-21 (5) the amount or volume of water authorized to be
33-22 appropriated for each purpose;
33-23 (6) a general description of the source of supply from
33-24 which the appropriation is proposed to be made;
33-25 (7) the time within which construction or work must
34-1 begin and the time within which it must be completed; and
34-2 (8) any other information the board <commission>
34-3 prescribes.
34-4 (c) If the appropriation is for irrigation, the board
34-5 <commission> shall also place in the permit a description and
34-6 statement of the approximate area of the land to be irrigated.
34-7 SECTION 32. Section 11.1351, Water Code, is amended as
34-8 follows:
34-9 Sec. 11.1351. Permit Restrictions. In granting an
34-10 application, the board <commission> may direct that stream flow
34-11 restrictions and other conditions and restrictions be placed in the
34-12 permit being issued to protect the priority of senior water rights.
34-13 SECTION 33. Section 11.136, Water Code, is amended as
34-14 follows:
34-15 Sec. 11.136. Recording of Permit. (a) The board
34-16 <commission> shall transmit the permit by registered mail to the
34-17 county clerk of the county in which the appropriation is to be
34-18 made.
34-19 (b) When the county clerk receives the permit and is paid
34-20 the recording fee (as prescribed by Subchapter B, Chapter 118,
34-21 Local Government Code, he shall file and record the permit in a
34-22 well-bound book kept for that purpose. He shall index the permit
34-23 alphabetically in the name of the applicant and of the stream or
34-24 source of water supply. After he has recorded the permit, the
34-25 county clerk shall deliver the permit, on demand, to the applicant.
35-1 (c) When the permit is filed in the office of the county
35-2 clerk, it is constructive notice of:
35-3 (1) the filing of the application;
35-4 (2) the issuance of the permit; and
35-5 (3) all the rights arising under the filing of the
35-6 application and the issuance of the permit.
35-7 SECTION 34. Section 11.137, Water Code, is amended as
35-8 follows:
35-9 Sec. 11.137. Seasonal Permits. (a) The board <commission>
35-10 may issue seasonal permits in the same manner that it issues
35-11 regular permits. The provisions of this chapter governing issuance
35-12 of regular permits apply to issuance of seasonal permits.
35-13 (b) The right to take, use, or divert water under seasonal
35-14 permit is limited to the portion or portions of the calendar year
35-15 stated in the permit.
35-16 (c) In a seasonal permit, the board <commission> shall
35-17 specify the conditions necessary to fully protect prior
35-18 appropriations or vested rights on the stream.
35-19 SECTION 35. Section 11.138, Water Code, is amended as
35-20 follows:
35-21 Sec. 11.138. Temporary Permits. (a) The board <commission>
35-22 may issue temporary permits for beneficial purposes to the extent
35-23 that they do not interfere with or adversely affect prior
35-24 appropriations or vested rights on the stream from which water is
35-25 to be diverted under such temporary permit. The board <commission>
36-1 may, by appropriate order, authorize any member of the board
36-2 <commission> to approve and issue temporary permits without notice
36-3 and hearing if it appears to such issuing party that sufficient
36-4 water is available at the proposed point of diversion to satisfy
36-5 the requirements of the temporary permit as well as all existing
36-6 rights. No temporary permit issued without notice and hearing
36-7 shall authorize more than 10 acre-feet of water, nor may it be for
36-8 a term in excess of one year.
36-9 (b) The board <commission> may prescribe rules governing
36-10 notice and procedure for the issuance of temporary permits.
36-11 (c) As between temporary permits, the one applied for first
36-12 has priority.
36-13 (d) The board <commission> may not issue a temporary permit
36-14 for a period exceeding three calendar years.
36-15 (e) A temporary permit does not vest in its holder a
36-16 permanent right to the use of water.
36-17 (f) A temporary permit expires and shall be cancelled by the
36-18 board <commission> in accordance with the terms of the permit.
36-19 (g) The board <commission> may prescribe by rule the fees to
36-20 be paid for issuance of temporary permits, but no fee for issuance
36-21 or extension of a temporary permit shall exceed $500.
36-22 SECTION 36. Section 11.1381, Water Code, is amended as
36-23 follows:
36-24 Sec. 11.1381. Term Permits (a) Until a water right is
36-25 perfected to the full extent provided by Section 11.026 of this
37-1 code, the board <commission> may issue permits for a term of years
37-2 for use of state water to which a senior water right has not been
37-3 perfected.
37-4 (b) The board <commission> shall refuse to grant an
37-5 application for a permit under this section if the board
37-6 <commission> finds that there is a substantial likelihood that the
37-7 issuance of the permit will jeopardize financial commitments made
37-8 for water projects that have been built or that are being built to
37-9 optimally develop the water resources of the area.
37-10 (c) The board <commission> shall refuse to grant an
37-11 application for a term permit if the holder of the senior
37-12 appropriative water right can demonstrate that the issuance of the
37-13 term permit would prohibit the senior appropriative water right
37-14 holder from beneficially using the senior rights during the term of
37-15 the term permit. Such demonstration will be made using reasonable
37-16 projections based on accepted methods.
37-17 (d) A permit issued under this section is subordinate to any
37-18 senior appropriative water rights.
37-19 SECTION 37. Section 11.139, Water Code, is amended as
37-20 follows:
37-21 Sec. 11.139. Emergency Permits. (a) The board <commission>
37-22 may grant an emergency permit for the diversion and use of water
37-23 for a period of not more than 30 days if it finds that emergency
37-24 conditions exist which threaten the public health, safety, and
37-25 welfare and which override the necessity to comply with established
38-1 statutory procedures.
38-2 (b) An emergency permit may be granted for a period of not
38-3 more than 30 days, and no extension or additional emergency permit
38-4 may be granted at the expiration of the original permit.
38-5 (c) An emergency permit may be granted under this section
38-6 without the necessity to comply with statutory and other procedures
38-7 required for granting other permits issued by the board
38-8 <commission>.
38-9 (d) The board <commission> may prescribe rules and adopt
38-10 fees which are necessary to carry out the provisions of this
38-11 section.
38-12 (e) An emergency permit does not vest in the permittee any
38-13 right to the diversion and use of water and shall expire and be
38-14 cancelled in accordance with its terms.
38-15 SECTION 38. Section 11.140, Water Code, is amended as
38-16 follows:
38-17 Sec. 11.140. Permits for Storage for Project Development.
38-18 The board <commission> may issue permits for storage solely
38-19 for the purpose of optimum development of projects. The board
38-20 <commission> may convert these permits to permits for beneficial
38-21 use if application to have them converted is made to the board
38-22 <commission>.
38-23 SECTION 39. Section 11.141, Water Code, is amended as
38-24 follows:
38-25 Sec. 11.141. Date of Priority.
39-1 When the board <commission> issues a permit, the priority of
39-2 the appropriation of water and the claimant's right to use the
39-3 water date from the date of filing of the application.
39-4 SECTION 40. Section 11.1421, Water Code, is amended as
39-5 follows:
39-6 Sec. 11.1421. Permit Exemption for Mariculture Activities.
39-7 (a) In this section, "mariculture" means the propagation and
39-8 rearing of aquatic species, including shrimp, other crustaceans,
39-9 finfish, mollusks, and other similar creatures in a controlled
39-10 environment using brackish or marine water.
39-11 (b) Without obtaining a permit and subject to the
39-12 requirements and limitations provided by Subsections (c) through
39-13 (e) of this section, a person who is engaged in mariculture
39-14 operations on land may take for that purpose state water from the
39-15 Gulf of Mexico and adjacent bays and arms of the Gulf of Mexico in
39-16 an amount appropriate to those mariculture activities.
39-17 (c) Before a person first takes water under Subsection (b)
39-18 of this section, the person must give notice to the board
39-19 <commission> of the proposed appropriation.
39-20 (d) Each appropriation of water made under Subsection (b) of
39-21 this section shall be reported to the board <commission> in the
39-22 manner provided by the board's <commission's> rules.
39-23 (e) After notice and hearing, if the board <commission>
39-24 determines that as a result of low freshwater inflows appropriation
39-25 of water under Subsection (b) of this section would interfere with
40-1 natural productivity of bays and estuaries, the board <commission>
40-2 shall issue an order requiring interruption or reduction of the
40-3 appropriation.
40-4 SECTION 41. Section 11.143, Water Code, is amended as
40-5 follows:
40-6 Sec. 11.143. Domestic and Livestock Reservoir--Use for Other
40-7 Purposes. (a) The owner of a dam or reservoir exempted under
40-8 Section 11.142 of this code who desires to use water from the dam
40-9 or reservoir for purposes other than domestic or livestock use
40-10 shall obtain a permit to do so. He may obtain a regular permit, a
40-11 seasonal permit, or a permit for a term of years. He may elect to
40-12 obtain the permit by proceeding under this section or under the
40-13 other provisions of this chapter governing issuance of permits.
40-14 (b) If the applicant elects to proceed under this section,
40-15 he shall submit to the board <commission> a sworn application, on a
40-16 form furnished by the board <commission>, containing the following
40-17 information:
40-18 (1) the name and post-office address of the applicant;
40-19 (2) the nature and purpose of the use and the amount
40-20 of water to be used annually for each purpose;
40-21 (3) the major watershed and the tributary (named or
40-22 unnamed) on which the dam or reservoir is located;
40-23 (4) the county in which the dam or reservoir is
40-24 located;
40-25 (5) the approximate distance and direction from the
41-1 county seat of the county to the location of the dam or reservoir;
41-2 (6) the survey or the portion of the survey on which
41-3 the dam or reservoir is located and, to the best of the applicant's
41-4 knowledge and belief, the distance and direction of the midpoint of
41-5 the dam or reservoir from a corner of the survey, which information
41-6 the executive administrator <director> may require to be marked on
41-7 an aerial photograph or map furnished by the board <commission>;
41-8 (7) the approximate surface area, to the nearest acre,
41-9 of the reservoir when it is full and the average depth in feet when
41-10 it is full; and
41-11 (8) the approximate number of square miles in the
41-12 drainage area above the dam or reservoir.
41-13 (c) If the permit is sought for irrigation, the application
41-14 must also specify:
41-15 (1) the total number of irrigable acres in the area;
41-16 (2) the number of acres to be irrigated within the
41-17 area in any one year; and
41-18 (3) the approximate distance and direction of the land
41-19 to be irrigated from the midpoint of the dam or reservoir.
41-20 (d) Except as otherwise specifically provided by this
41-21 subsection, before the board <commission> may approve the
41-22 application and issue the permit, it shall give notice and hold a
41-23 hearing as prescribed by this section. The board <commission> may
41-24 act on the application without holding a public hearing if:
41-25 (1) not less than 30 days before the date of action on
42-1 the application by the board <commission>, the applicant has
42-2 published the board's <commission's> notice of the application at
42-3 least once in a newspaper regularly published or circulated within
42-4 the section of the state where the source of water is located;
42-5 (2) not less than 30 days before the date of action on
42-6 the application by the board <commission>, the board <commission>
42-7 mails a copy of the notice by first-class mail, postage prepaid, to
42-8 each person whose claim or appropriation has been filed with the
42-9 board <commission> and whose diversion point is downstream from
42-10 that described in the application; and
42-11 (3) within 30 days after the date of the newspaper
42-12 publication of the board's <commission's> notice, a public hearing
42-13 is not requested in writing by a board member <commissioner>, the
42-14 executive administrator <director>, or an affected person who
42-15 objects to the application.
42-16 (e) In the notice, the board <commission> shall:
42-17 (1) state the name and post-office address of the
42-18 applicant;
42-19 (2) state the date the application was filed;
42-20 (3) state the purpose and extent of the proposed
42-21 appropriation of water;
42-22 (4) identify the source of supply and the place where
42-23 the water is stored; and
42-24 (5) specify the time and place of the hearing.
42-25 (f) The notice shall be published only once, at least 20
43-1 days before the date stated in the notice for the hearing on the
43-2 application, in a newspaper having general circulation in the
43-3 county where the dam or reservoir is located. At least 15 days
43-4 before the date set for the hearing, the board <commission> shall
43-5 transmit a copy of the notice by first-class mail to each person
43-6 whose claim or appropriation has been filed with the board
43-7 <commission> and whose diversion point is downstream from that
43-8 described in the application.
43-9 (g) If on the date specified in the notice prescribed by
43-10 Subsection (d) of this section, the board <commission> determines
43-11 that a public hearing must be held, the matter shall be remanded
43-12 for hearing without the necessity of issuing further notice other
43-13 than advising all parties of the time and place where the hearing
43-14 is to convene.
43-15 (h) The applicant shall pay the filing fee prescribed by
43-16 Section 12.111(b) of this code at the time he files the
43-17 application.
43-18 (i) The board <commission> shall approve the application and
43-19 issue the permit as applied for in whole or part if it determines
43-20 that:
43-21 (1) there is unappropriated water in the source of
43-22 supply;
43-23 (2) the applicant has met the requirements of this
43-24 section;
43-25 (3) the water is to be used for a beneficial purpose;
44-1 (4) the proposed use is not detrimental to the public
44-2 welfare or to the welfare of the locality; and
44-3 (5) the proposed use will not impair existing water
44-4 rights.
44-5 SECTION 42. Section 11.144, Water Code, is amended as
44-6 follows:
44-7 Sec. 11.144. Approval for Alterations.
44-8 All holders of permits and certified filings shall obtain the
44-9 approval of the board <commission> before making any alterations,
44-10 enlargements, extensions, or other changes to any reservoir, dam,
44-11 main canal, or diversion work on which a permit has been granted or
44-12 a certified filing recorded. A detailed statement and plans for
44-13 alterations or changes shall be filed with the board <commission>
44-14 and approved by the executive administrator <director> before the
44-15 alterations or changes are made. This section does not apply to
44-16 the ordinary maintenance or emergency repair of the facility.
44-17 SECTION 43. Section 11.145, Water Code, is amended as
44-18 follows:
44-19 Sec. 11.145. When Construction Must Begin. (a) If a permit
44-20 is for appropriation by direct diversion, construction of the
44-21 proposed facilities shall begin within the time fixed by the board
44-22 <commission>, which shall not exceed two years after the date the
44-23 permit is issued. The appropriator shall work diligently and
44-24 continuously to the completion of the construction. The board
44-25 <commission> may, by entering an order of record, extend the time
45-1 for beginning construction. The board <commission> may establish
45-2 fees, not to exceed $1,000, for extending the time to begin
45-3 construction of the proposed facilities.
45-4 (b) If the permit contemplates construction of a storage
45-5 reservoir, construction shall begin within the time fixed by the
45-6 board <commission>, not to exceed two years after the date the
45-7 permit is issued. The board <commission>, by entering an order of
45-8 record, may extend the time for beginning construction. The board
45-9 <commission> may fix fees, not to exceed $1,000, for extending the
45-10 time to begin construction of reservoirs.
45-11 SECTION 44. Section 11.146, Water Code, is amended as
45-12 follows:
45-13 Sec. 11.146. Forfeitures and Cancellation of Permit for
45-14 Inaction. (a) If a permittee fails to begin construction within
45-15 the time specified in Section 11.145 of this code, he forfeits all
45-16 rights to the permit, subject to notice and hearing as prescribed
45-17 by this section.
45-18 (b) After beginning construction if the appropriator fails
45-19 to work diligently and continuously to the completion of the work,
45-20 the appropriation is subject to cancellation in whole or part,
45-21 subject to notice and hearing as prescribed by this section.
45-22 (c) If the board <commission> believes that an appropriation
45-23 or permit should be declared forfeited under this section or any
45-24 other sections of this code, it should give the appropriator or
45-25 permittee 30 days notice and provide him with an opportunity to be
46-1 heard.
46-2 (d) After the hearing, the board <commission> by entering an
46-3 order of record may cancel the appropriation in whole or part. The
46-4 board <commission> shall immediately transmit a certified copy of
46-5 the cancellation order by certified mail to the county clerk of the
46-6 county in which the permit is recorded. The county clerk shall
46-7 record the cancellation order.
46-8 (e) Except as provided by Section 11.1381 of this code, if a
46-9 permit has been issued for the use of water, the water is not
46-10 subject to a new appropriation until the permit has been cancelled
46-11 in whole or part as provided by this section.
46-12 (f) Except as provided by Subchapter E of this chapter, none
46-13 of the provisions of this code may be construed as intended to
46-14 impair, cause, or authorize or may impair, cause, or authorize the
46-15 forfeiture of any rights acquired by any declaration of
46-16 appropriation or by any permit if the appropriator has begun or
46-17 begins the work and development contemplated by his declaration of
46-18 appropriation or permit within the time provided by the law under
46-19 which the declaration of appropriation was made or the permit was
46-20 granted and has prosecuted or continues to prosecute it with all
46-21 reasonable diligence toward completion.
46-22 SECTION 42. Section 11.147, Water Code, is amended as
46-23 follows:
46-24 Sec. 11.147. Effects of Permit on Bays and Estuaries and
46-25 Instream Uses. (a) In this section, "beneficial inflows" means a
47-1 salinity, nutrient, and sediment loading regime adequate to
47-2 maintain an ecologically sound environment in the receiving bay and
47-3 estuary system that is necessary for the maintenance of
47-4 productivity of economically important and ecologically
47-5 characteristic sport or commercial fish and shellfish species and
47-6 estuarine life upon which such fish and shellfish are dependent.
47-7 (b) In its consideration of an application for a permit to
47-8 store, take, or divert water, the board <commission> shall assess
47-9 the effects, if any, of the issuance of the permit on the bays and
47-10 estuaries of Texas. For permits issued within an area that is 200
47-11 river miles of the coast, to commence from the mouth of the river
47-12 thence inland, the board <commission> shall include in the permit,
47-13 to the extent practicable when considering all public interests,
47-14 those conditions considered necessary to maintain beneficial
47-15 inflows to any affected bay and estuary system.
47-16 (c) For the purposes of making a determination under
47-17 Subsection (b) of this section, the board <commission> shall
47-18 consider among other factors:
47-19 (1) the need for periodic freshwater inflows to supply
47-20 nutrients and modify salinity to preserve the sound environment of
47-21 the bay or estuary, using any available information, including
47-22 studies and plans specified in Section 11.1491 of this code and
47-23 other studies considered by the board <commission> to be reliable;
47-24 together with existing circumstances, natural or otherwise, that
47-25 might prevent the conditions imposed from producing benefits;
48-1 (2) the ecology and productivity of the affected bay
48-2 and estuary system;
48-3 (3) the expected effects on the public welfare of not
48-4 including in the permit some or all of the conditions considered
48-5 necessary to maintain the beneficial inflows to the affected bay or
48-6 estuary system;
48-7 (4) the quantity of water requested and the proposed
48-8 use of water by the applicant, as well as the needs of those who
48-9 would be served by the applicant;
48-10 (5) the expected effects on the public welfare of the
48-11 failure to issue all or part of the permit being considered; and
48-12 (6) for purposes of this section, the declarations as
48-13 to preferences for competing uses of water as found in Sections
48-14 11.024 and 11.033, Water Code, as well as the public policy
48-15 statement in Section 1.003, Water Code.
48-16 (d) In its consideration of an application to store, take,
48-17 or divert water, the board <commission> shall consider the effect,
48-18 if any, of the issuance of the permit on existing instream uses and
48-19 water quality of the stream or river to which the application
48-20 applies.
48-21 (e) The board <commission> shall also consider the effect,
48-22 if any, of the issuance of the permit on fish and wildlife
48-23 habitats.
48-24 (f) On receipt of an application for a permit to store,
48-25 take, or divert water, the board <commission> shall send a copy of
49-1 the permit application and any subsequent amendments to the Parks
49-2 and Wildlife Department. At its option, the Parks and Wildlife
49-3 Department may be a party in hearings on applications for permits
49-4 to store, take, or divert water. In making a final decision on any
49-5 application for a permit, the board <commission>, in addition to
49-6 other information, evidence, and testimony presented, shall
49-7 consider all information, evidence, and testimony presented by the
49-8 Parks and Wildlife Department.
49-9 (g) The failure of the Parks and Wildlife Department to
49-10 appear as a party does not relieve the board <commission> of the
49-11 requirements of this section.
49-12 SECTION 43. Section 11.148, Water Code, is amended as
49-13 follows:
49-14 Sec. 11.148. Emergency Suspension of Permit Conditions
49-15 (a) Permit conditions relating to the beneficial inflows to
49-16 affected bays and estuaries and instream uses may be suspended by
49-17 the board <commission> if the board <commission> finds that an
49-18 emergency exists and cannot practically be resolved in other ways.
49-19 (b) Before the board <commission> suspends a permit under
49-20 Subsection (a) of this section, it must give written notice to the
49-21 Parks and Wildlife Department of the proposed suspension. The
49-22 board <commission> shall give the Parks and Wildlife Department an
49-23 opportunity to submit comments on the proposed suspension within 72
49-24 hours from such time and the board <commission> shall consider
49-25 those comments before issuing its order imposing the suspension.
50-1 (c) The board <commission> may suspend the permit without
50-2 notice to any other interested party other than the Parks and
50-3 Wildlife Department as provided by Subsection (b) of this section.
50-4 However, all affected persons shall be notified immediately by
50-5 publication, and a hearing to determine whether the suspension
50-6 should be continued shall be held within 15 days of the date on
50-7 which the order to suspend is issued.
50-8 SECTION 44. Section 11.1491, Water Code, is amended as
50-9 follows:
50-10 Sec. 11.1491. Evaluation of Bays and Estuaries Data (a) The
50-11 Parks and Wildlife Department and the board <commission> shall have
50-12 joint responsibility to review the studies prepared under Section
50-13 16.058 of this code, to determine inflow conditions necessary for
50-14 the bays and estuaries, and to provide information necessary for
50-15 water resources management. Each agency shall designate an
50-16 employee to share equally in the oversight of the program. Other
50-17 responsibilities shall be divided between the Parks and Wildlife
50-18 Department and the board <commission> to maximize present in-house
50-19 capabilities of personnel and to minimize costs to the state. Each
50-20 agency shall have reasonable access to all information produced by
50-21 the other agency. Publication of reports completed under this
50-22 section shall be submitted for comment to both the board
50-23 <commission> and the Parks and Wildlife Department.
50-24 (b) For purposes of guiding data collection and studies
50-25 specified under Subsection (a) of this section, an advisory council
51-1 may be established by the executive director<s> of the
51-2 <commission,> Parks and Wildlife Department and the executive
51-3 administrator of the board <Water Development Board> for each
51-4 principal bay and estuary. Each advisory council shall be composed
51-5 of representatives of the board <commission>, Parks and Wildlife
51-6 Department, <the Water Development Board,> Texas Department of
51-7 Health, General Land Office, one representative of commercial
51-8 fishing groups, one representative of recreational fishing and
51-9 hunting groups, one representative of conservation groups, and
51-10 representatives of conservation and reclamation districts or river
51-11 authorities having responsibilities and operations in river basins
51-12 or watersheds contributing to the bay or estuary. The advisory
51-13 councils may develop recommendations to the executive director<s>
51-14 and executive administrator and to entities and organizations
51-15 having operational responsibilities or holding major water rights
51-16 in the contributing watersheds regarding alternative water
51-17 management methods that may be used in maintaining the sound
51-18 environment of the bays and estuaries.
51-19 (c) The board may authorize the use of money from the
51-20 research and planning fund established by Chapter 15 of this code
51-21 to accomplish the purposes of this section. These funds shall be
51-22 used by the board <commission> in cooperation with the Parks and
51-23 Wildlife Department for interagency contracts with cooperating
51-24 agencies and universities, and contracts with private sector
51-25 establishments, as necessary, to accomplish the purposes of this
52-1 section.
52-2 SECTION 45. Section 11.150, Water Code, is amended as
52-3 follows:
52-4 Sec. 11.150. Effects of Permits on Water Quality.
52-5 In consideration of an application for a permit under this
52-6 subchapter, the board <commission> and the Texas Water Commission
52-7 or its successor agency shall have joint responsibility to assess
52-8 the effects, if any, of the issuance of the permit on water quality
52-9 in this state.
52-10 SECTION 46. Section 11.152, Water Code, is amended as
52-11 follows:
52-12 Sec. 11.152. Effects of Permits on Fish and Wildlife
52-13 Habitats.
52-14 In its consideration of an application for a permit to store,
52-15 take, or divert water in excess of 5,000 acre feet per year, the
52-16 board <commission> and the Texas Water Commission or its successor
52-17 agency shall have joint responsibility to assess the effects, if
52-18 any, on the issuance of the permit on fish and wildlife habitats
52-19 and may require the applicant to take reasonable actions to
52-20 mitigate adverse impacts on such habitat. In determining whether
52-21 to require an applicant to mitigate adverse impacts on a habitat,
52-22 the board <commission> and the Texas Water Commission or its
52-23 successor agency may consider any net benefit to the habitat
52-24 produced by the project. The board <commission> and the Texas
52-25 Water Commission or its successor agency shall offset against any
53-1 mitigation required by the U.S. Fish and Wildlife Service pursuant
53-2 to 33 C.F.R. Sections 320-330 any mitigation authorized by this
53-3 section.
53-4 SECTION 47. Section 11.171, Water Code, is amended as
53-5 follows:
53-6 Sec. 11.171. Definitions
53-7 As used in this subchapter:
53-8 (1) "Other interested person" means any person other
53-9 than a record holder who is interested in the permit or certified
53-10 filing or any person whose direct interest would be served by the
53-11 cancellation of the permit or certified filing in whole or part.
53-12 (2) "Certified filing" means a declaration of
53-13 appropriation or affidavit that was filed with the State Board of
53-14 Water Engineers under the provisions of Section 14, Chapter 171,
53-15 General Laws, Acts of the 33rd Legislature, 1913, as amended.
53-16 (3) "Certificate of adjudication" means a certificate
53-17 issued by the board <commission> under Section 11.323 of this code.
53-18 (4) "Permit" means an authorization by the board
53-19 <commission> granting a person the right to use water.
53-20 SECTION 48. Section 11.173, Water Code, is amended as
53-21 follows:
53-22 Sec. 11.173. Cancellation in Whole or in Part. (a) Except
53-23 as provided by Subsection (b) of this section, if all or part of
53-24 the water authorized to be appropriated under a permit, certified
53-25 filing, or certificate of adjudication has not been put to
54-1 beneficial use at any time during the 10-year period immediately
54-2 preceding the cancellation proceedings authorized by this
54-3 subchapter, then the permit, certified filing, or certificate of
54-4 adjudication is subject to cancellation in whole or in part, as
54-5 provided by this subchapter, to the extent of the 10 years nonuse.
54-6 (b) A permit, certified filing, or certificate of
54-7 adjudication or a portion of a permit, certified filing, or
54-8 certificate of adjudication is exempt from cancellation under
54-9 Subsection (a) of this section:
54-10 (1) to the extent of the owner's participation in the
54-11 Conservation Reserve Program authorized by the Food Security Act,
54-12 Pub. L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514
54-13 (1985) or a similar governmental program; or
54-14 (2) if any portion of the water authorized to be used
54-15 pursuant to a permit, certified filing, or certificate of
54-16 adjudication has been used in accordance with a water management
54-17 plan approved by the board <commission>.
54-18 SECTION 49. Section 11.174, Water Code, is amended as
54-19 follows:
54-20 Sec. 11.174. Board <Commission> May Initiate Proceedings
54-21 When the board <commission> finds that its records do not
54-22 show that some portion of the water has been used during the past
54-23 10 years, the executive administrator <director> may initiate
54-24 proceedings, terminated by public hearing, to cancel the permit,
54-25 certified filing, or certificate of adjudication in whole or in
55-1 part.
55-2 SECTION 50. Section 11.175, Water Code, is amended as
55-3 follows:
55-4 Sec. 11.175. Notice (a) At least 45 days before the date of
55-5 the hearing, the board <commission> shall send notice of the
55-6 hearing to the holder of the permit, certified filing, or
55-7 certificate of adjudication being considered for cancellation in
55-8 whole or in part. Notice shall be sent by certified mail, return
55-9 receipt requested, to the last address shown by the records of the
55-10 board <commission>. The board <commission> shall also send notice
55-11 by regular mail to all other holders of permits, certified filings,
55-12 certificates of adjudication, and claims of unadjudicated water
55-13 rights filed pursuant to Section 11.303 of this code in the same
55-14 watershed.
55-15 (b) The board <commission> shall also have the notice of the
55-16 hearing published once a week for two consecutive weeks, at least
55-17 30 days before the date of the hearing, in a newspaper published in
55-18 each county in which diversion of water from the source of supply
55-19 was authorized or proposed to be made and in each county in which
55-20 the water was authorized or proposed to be used, as shown by the
55-21 records of the board <commission>. If in any such county no
55-22 newspaper is published, then the notice may be published in a
55-23 newspaper having general circulation in the county.
55-24 SECTION 51. Section 11.176, Water Code, is amended as
55-25 follows:
56-1 Sec. 11.176. Hearing
56-2 The board <commission> shall hold a hearing and shall give
56-3 the holder of the permit, certified filing, or certificate of
56-4 adjudication and other interested persons an opportunity to be
56-5 heard and to present evidence on any matter pertinent to the
56-6 questions at issue.
56-7 SECTION 52. Section 11.177, Water Code, is amended as
56-8 follows:
56-9 Sec. 11.177. Board <Commission> Finding; Action (a) At the
56-10 conclusion of the hearing, the board <commission> shall cancel the
56-11 permit, certified filing, or certificate of adjudication in whole
56-12 or in part to the extent that it finds that:
56-13 (1) the water or any portion of the water appropriated
56-14 under the permit, certified filing, or certificate of adjudication
56-15 has not been put to an authorized beneficial use during the 10-year
56-16 period;
56-17 (2) the holder has not used reasonable diligence in
56-18 applying the water or the unused portion of the water to an
56-19 authorized beneficial use; and
56-20 (3) the holder has not been justified in the nonuse or
56-21 does not then have a bona fide intention of putting the water or
56-22 the unused portion of the water to an authorized beneficial use
56-23 within a reasonable time after the hearing.
56-24 (b) In determining what constitutes a justified nonuse and a
56-25 reasonable time as used in Subsection (a)(3) of this section, the
57-1 board <commission> shall give consideration to:
57-2 (1) the expenditures made or obligations incurred by
57-3 the holder in connection with the permit, certified filing, or
57-4 certificate of adjudication;
57-5 (2) the purpose to which the water is to be applied;
57-6 (3) the priority of the purpose;
57-7 (4) the amount of time usually necessary to put water
57-8 to a beneficial use for the same purpose when diligently developed;
57-9 and
57-10 (5) whether at all times during the 10-year period
57-11 there was rainfall adequate to enable the use of all or part of the
57-12 water authorized to be appropriated under the permit, certified
57-13 filing, or certificate of adjudication.
57-14 SECTION 53. Section 11.183, Water Code, is amended as
57-15 follows:
57-16 Sec. 11.183. Reservoir
57-17 If the holder of a permit, certified filing, or certificate
57-18 of adjudication has facilities for the storage of water in a
57-19 reservoir, the board <commission> may allow him to retain the
57-20 impoundment to the extent of the conservation storage capacity of
57-21 the reservoir for domestic, livestock, or recreation purposes.
57-22 SECTION 54. Section 11.202, Water Code, is amended as
57-23 follows:
57-24 Sec. 11.202. Right to Drill Artesian Well (a) Except as
57-25 provided by this section, a person is entitled to drill an artesian
58-1 well for domestic purposes or for stock raising without complying
58-2 with the general provisions of this code regulating the use of
58-3 water.
58-4 (b) The artesian well must be on that person's own land and
58-5 must be properly and securely cased.
58-6 (c) When water is reached containing mineral or other
58-7 substances injurious to vegetation or agriculture, the artesian
58-8 well must be securely capped or its flow controlled so as not to
58-9 injure another person's land or properly plugged so as to prevent
58-10 the water from rising above the first impervious stratum below the
58-11 surface of the ground.
58-12 (d) Except as provided by Subsection (e) of this section,
58-13 after September 1, 1991, and before January 1, 1994, a person may
58-14 not drill and operate a free-flowing artesian well in a sole or
58-15 principal source aquifer as designated by 40 C.F.R., Part 149,
58-16 pursuant to Section 1424(e), Safe Drinking Water Act (42 U.S.C.
58-17 300h-3(e)) that will result in a flow of more than 5,000 gallons
58-18 per minute or that is within 1,000 feet of another well if the
58-19 combined flows would exceed 5,000 gallons per minute.
58-20 (e) The board <commission> may grant for a well an exemption
58-21 from the prohibition provided by Subsection (d) of this section for
58-22 any beneficial use that does not waste water. The board
58-23 <commission> by rule may delegate the authority to grant exemptions
58-24 under this subsection to a local water district.
58-25 SECTION 55. Section 11.203, Water Code, is amended as
59-1 follows:
59-2 Sec. 11.203. Artesian Well: Drilling Record (a) A person
59-3 who drills an artesian well or has one drilled shall keep a
59-4 complete and accurate record of the depth, thickness, and character
59-5 of the different strata penetrated and when the well is completed
59-6 shall transmit a copy of the record to the board <commission> by
59-7 registered mail.
59-8 (b) A person who violates any provision of this section is
59-9 guilty of a misdemeanor and on conviction is punishable by a fine
59-10 of not less than $10 nor more than $100.
59-11 SECTION 56. Section 11.204, Water Code, is amended as
59-12 follows:
59-13 Sec. 11.204. Report of New Artesian Well
59-14 Within one year after an artesian well is drilled, the owner
59-15 or operator shall transmit to the board <commission> a sworn report
59-16 stating the result of the drilling operation, the use to which the
59-17 water will be applied, and the contemplated extent of the use.
59-18 SECTION 57. Section 11.207, Water Code, is amended as
59-19 follows:
59-20 Sec. 11.207. Annual Report (a) Not later than March 1 of
59-21 each year, a person who during any part of the preceding calendar
59-22 year owned or operated an artesian well for any purpose other than
59-23 domestic use shall file a report to the board <commission> on a
59-24 form supplied by the board <commission>.
59-25 (b) The report shall state:
60-1 (1) the quantity of water which was obtained from the
60-2 well;
60-3 (2) the nature of the uses to which the water was
60-4 applied;
60-5 (3) the change in the level of the well's water table;
60-6 and
60-7 (4) other information required by the board
60-8 <commission>.
60-9 (c) If water from the well was used for irrigation, the
60-10 report shall also state the acreage and yield of each crop
60-11 irrigated.
60-12 SECTION 58. Section 11.302, Water Code, is amended as
60-13 follows:
60-14 Sec. 11.302. Declaration of Policy.
60-15 The conservation and best utilization of the water resources
60-16 of this state are a public necessity, and it is in the interest of
60-17 the people of the state to require recordation with the board
60-18 <commission> of claims water rights which are presently unrecorded,
60-19 to limit the exercise of these claims to actual use, and to provide
60-20 for the adjudication and administration of water rights to the end
60-21 that the surface-water resources of the state may be put to their
60-22 greatest beneficial use. Therefore, this subchapter is in
60-23 furtherance of the public rights, duties, and functions mentioned
60-24 in this section and in response to the mandate expressed in Article
60-25 XVI, Section 59 of the Texas Constitution and is in the exercise of
61-1 the police powers of the state in the interest of the public
61-2 welfare.
61-3 SECTION 59. Section 11.303, Water Code, is amended as
61-4 follows:
61-5 Sec. 11.303. Recordation and Limitation of Certain Water
61-6 Rights Claims (a) This section applies to:
61-7 (1) claims of riparian water rights;
61-8 (2) claims under Section 11.143 of this code to
61-9 impound, divert, or use state water for other than domestic or
61-10 livestock purposes, for which no permit has been issued;
61-11 (3) claims of water rights under the Irrigation Acts
61-12 of 1889 and 1895 which were not filed with the State Board of
61-13 Water Engineers in accordance with the Irrigation Act of 1913, as
61-14 amended; and
61-15 (4) other claims of water rights except claims under
61-16 permits or certified filings.
61-17 (b) Any claim to which this section applies shall be
61-18 recognized only if valid under existing law and only to the extent
61-19 of the maximum actual application of water to beneficial use
61-20 without waste during any calendar year from 1963 to 1967,
61-21 inclusive. However, in any case where a claimant of a riparian
61-22 right has prior to August 28, 1967, commenced or completed the
61-23 construction of works designed to apply a greater quantity of water
61-24 to beneficial use, the right shall be recognized to the extent of
61-25 the maximum amount of water actually applied to beneficial use
62-1 without waste during any calendar year from 1963 to 1970,
62-2 inclusive.
62-3 (c) On or before September 1, 1969, every person claiming a
62-4 water right to which this section applies shall file with the board
62-5 <commission> a statement setting forth:
62-6 (1) the name and address of the claimant;
62-7 (2) the location and nature of the right claimed;
62-8 (3) the stream or watercourse and the river basin in
62-9 which the right is claimed;
62-10 (4) the date of commencement of works;
62-11 (5) the dates and volumes of use of water; and
62-12 (6) other information the board <commission> may
62-13 require to show the nature and extent of the claim.
62-14 (d) A person who files a statement as provided in this
62-15 section shall certify under oath that the statements made in
62-16 support of his claim are true and correct to the best of his
62-17 knowledge and belief.
62-18 (e) A claimant who desires recognition of a right based on
62-19 use from 1968 to 1970, inclusive, as provided in Subsection (b) of
62-20 this section shall file an additional sworn statement on or before
62-21 July 1, 1971.
62-22 (f) The board <commission> shall prescribe forms for the
62-23 sworn statements required by this section, but use of the board
62-24 <commission> forms is not mandatory.
62-25 (g) On or before January 1, 1968, and June 1, 1969, the
63-1 board <commission> shall cause notice of the requirements of this
63-2 section to be published once each week for two consecutive weeks in
63-3 newspapers having general circulation in each county of the state
63-4 and by first-class mail to each user of surface water who has filed
63-5 a report of water use with the board <commission>.
63-6 (h) On sworn petition, notice, and hearing as prescribed for
63-7 applications for permits and upon finding of extenuating
63-8 circumstances and good cause shown for failure to timely file, the
63-9 board <commission> may authorize the filing of the sworn statement
63-10 or statements required by this section until entry of a preliminary
63-11 determination of claims of water rights in accordance with Section
63-12 11.309 of this code which includes the area described in the
63-13 petition or, if a preliminary determination has not been entered,
63-14 until September 1, 1974.
63-15 (i) Since the filing of all claims to use public water is
63-16 necessary for the conservation and best utilization of water
63-17 resources of the state, failure to file a sworn statement in
63-18 substantial compliance with this section extinguishes and bars any
63-19 claim of water rights to which this section applies.
63-20 (j) A sworn statement submitted under this section is
63-21 binding on the person submitting it and his successors in interest,
63-22 but is not binding on the board <commission> or any other person in
63-23 interest.
63-24 (k) Nothing in this section shall be construed to recognize
63-25 any water right which did not exist before August 28, 1967.
64-1 (l) This section does not apply to use of water for domestic
64-2 or livestock purposes.
64-3 SECTION 60. Section 11.304, Water Code, is amended as
64-4 follows:
64-5 Sec. 11.304. Adjudication of Water Rights
64-6 The water rights in any stream or segment of a stream may be
64-7 adjudicated as provided in this subchapter:
64-8 (1) on the board's <commission's> own motion;
64-9 (2) on petition to the board <commission> signed by 10
64-10 or more claimants of water rights from the source of supply; or
64-11 (3) on petition of the executive administrator
64-12 <director>.
64-13 SECTION 61. Section 11.305, Water Code, is amended as
64-14 follows:
64-15 Sec. 11.305. Investigation (a) Promptly after a petition is
64-16 filed under Section 11.304 of this Code, the board <commission>
64-17 shall consider whether the adjudication would be in the public
64-18 interest. If the board <commission> finds that an adjudication
64-19 would be in the public interest, it shall enter an order to that
64-20 effect, designating the stream or segment to be adjudicated. The
64-21 executive administrator <director> shall have an investigation made
64-22 of the area involved in order to gather relevant data and
64-23 information essential to the proper understanding of the claims of
64-24 water rights involved. The results of the investigation shall be
64-25 reduced to writing and made a matter of record in the board
65-1 <commission> office.
65-2 (b) In connection with the investigation, the executive
65-3 administrator <director> shall have a map or plat made showing with
65-4 substantial accuracy the course of the stream or segment and the
65-5 location of reservoirs, diversion works, and places of use,
65-6 including lands which are being irrigated or have facilities for
65-7 irrigation.
65-8 SECTION 62. Section 11.306, Water Code, is amended as
65-9 follows:
65-10 Sec. 11.306. Notice of Adjudication (a) The board
65-11 <commission> shall prepare a notice of adjudication which describes
65-12 the stream or segment to be adjudicated and the date by which all
65-13 claims of water rights in the stream or segment shall be filed with
65-14 the board <commission>. The date shall not be less than 90 days
65-15 after the date the notice is issued.
65-16 (b) The notice shall be published once a week for two
65-17 consecutive weeks in one or more newspapers having general
65-18 circulation in the counties in which the stream or segment is
65-19 located.
65-20 (c) The notice shall also be sent by first-class mail to
65-21 each claimant of water rights whose diversion is within the stream
65-22 or segment to be adjudicated, to the extent that the claimants can
65-23 reasonably be ascertained from the records of the board
65-24 <commission>.
65-25 SECTION 63. Section 11.307, Water Code, is amended as
66-1 follows:
66-2 Sec. 11.307. Filing of Sworn Claims. (a) Every person
66-3 claiming a water right of any nature, except for domestic or
66-4 livestock purposes, from the stream or segment under adjudication
66-5 shall file a sworn claim with the board <commission> within the
66-6 time prescribed in the notice of adjudication including any
66-7 extensions of the prescribed time, setting forth:
66-8 (1) the name and post-office address of the claimant;
66-9 (2) the location and nature of the right claimed,
66-10 including a description of any permit or certified filing under
66-11 which the claim is made;
66-12 (3) the purpose of the use;
66-13 (4) a description of works and irrigated land; and
66-14 (5) all other information necessary to show the nature
66-15 and extent of the claim.
66-16 (b) The board <commission> shall prescribe forms for claims,
66-17 but use of the board <commission> forms is not mandatory.
66-18 SECTION 64. Section 11.308, Water Code, is amended as
66-19 follows:
66-20 Sec. 11.308. Hearings on Claims; Notice
66-21 The board <commission> shall set a time and a place for
66-22 hearing all claims. Not less than 30 days before commencement of
66-23 the hearings, the board <commission> shall give notice of the
66-24 hearings by certified mail to all persons who have filed claims in
66-25 accordance with Section 11.307 of this code, or this notice may be
67-1 included in the notice of adjudication provided in Section 11.306
67-2 of this code. The hearings shall be conducted as provided in
67-3 Section 11.337 of this code.
67-4 SECTION 65. Section 11.309, Water Code, is amended as
67-5 follows:
67-6 Sec. 11.309. Preliminary Determination of Claims. (a) On
67-7 completion of the hearings, the board <commission> shall make a
67-8 preliminary determination of the claims to water rights under
67-9 adjudication.
67-10 (b) One copy of the preliminary determination shall be
67-11 furnished without charge to each person who filed a claim in
67-12 accordance with Section 11.307 of this code. Additional copies of
67-13 the preliminary determination shall be made available for public
67-14 inspection at convenient locations throughout the river basin, as
67-15 designated by the board <commission>. Copies shall also be made
67-16 available to other interested persons at a reasonable price, based
67-17 on the cost of reproduction.
67-18 SECTION 66. Section 11.310, Water Code, is amended as
67-19 follows:
67-20 Sec. 11.310. Evidence Open to Inspection.
67-21 All evidence presented to or considered by the board
67-22 <commission> shall be open to public inspection for a period of not
67-23 less than 60 days, as fixed by the board <commission>, after the
67-24 notice prescribed in Section 11.312 of this code is issued.
67-25 SECTION 67. Section 11.311, Water Code, is amended as
68-1 follows:
68-2 Sec. 11.311. Date for Filing Contests
68-3 The board <commission> shall set a date for filing contests
68-4 on the preliminary determination, which date shall not be less than
68-5 30 days after the period for public inspection of the evidence has
68-6 closed.
68-7 SECTION 68. Section 11.312, Water Code, is amended as
68-8 follows:
68-9 Sec. 11.312. Notice of Preliminary Determination; Copies (a)
68-10 Promptly after the preliminary determination is made as provided in
68-11 Section 11.309 of this code, the board <commission> shall publish
68-12 notice of the determination once a week for two consecutive weeks
68-13 in one or more newspapers having general circulation in the river
68-14 basin in which the stream or segment that is the subject of the
68-15 adjudication is located.
68-16 (b) The board <commission> shall also send notice by
68-17 first-class mail to each claimant of water rights within the river
68-18 basin in which the stream or segment is located, to the extent that
68-19 the claimants can be reasonably ascertained from the records of the
68-20 board <commission>.
68-21 (c) Each notice shall state:
68-22 (1) the place and the period of time that the
68-23 preliminary determination and evidence presented to or considered
68-24 by the board <commission> will be open for public inspection;
68-25 (2) the locations throughout the river basin where
69-1 copies of the preliminary determination will be available for
69-2 public inspection;
69-3 (3) the method of ordering copies of the preliminary
69-4 determination and the charge for copies;
69-5 (4) the date by which contests on the preliminary
69-6 determination must be filed.
69-7 SECTION 69. Section 11.313, Water Code, is amended as
69-8 follows:
69-9 Sec. 11.313. Filing Contests (a) Any water right claimant
69-10 affected by the preliminary determination, including any claimant
69-11 to water rights within the river basin but outside the stream or
69-12 segment under adjudication, who disputes the preliminary
69-13 determination may within the time for filing contests prescribed by
69-14 the board <commission> in the notice, including any extension of
69-15 the time, file a written contest with the board <commission>,
69-16 stating with reasonable certainty the grounds of his contest.
69-17 (b) The statement filed to contest a preliminary
69-18 determination must be verified by an affidavit of the contestant,
69-19 his agent, or his attorney.
69-20 (c) If the contest is directed against the preliminary
69-21 determination of the water rights of other claimants, a copy shall
69-22 be served on each of these claimants or his attorney by certified
69-23 mail, and proof of service shall be filed with the board
69-24 <commission>.
69-25 SECTION 70. Section 11.314, Water Code, is amended as
70-1 follows:
70-2 Sec. 11.314. Hearing on Contest; Notice
70-3 After the time for filing contests has expired, the board
70-4 <commission> shall prepare a notice setting forth the part of the
70-5 preliminary determination to which each contest is directed and the
70-6 time and place of a hearing on the contest. The notice shall be
70-7 sent to each claimant of water rights within the river basin in
70-8 which the stream or segment is located, to the extent that the
70-9 claimants can be reasonably ascertained from the records of the
70-10 board <commission>. The hearing shall be conducted as provided in
70-11 Section 11.337 of this code.
70-12 SECTION 71. Section 11.315, Water Code, is amended as
70-13 follows:
70-14 Sec. 11.315. Final Determination
70-15 On completion of the hearings on all contests, the board
70-16 <commission> shall make a final determination of the claims to
70-17 water rights under adjudication. The board <commission> shall send
70-18 a copy of the final determination and any modification of the final
70-19 determination to each claimant whose rights are adjudicated and to
70-20 each contesting party.
70-21 SECTION 72. Section 11.316, Water Code, is amended as
70-22 follows:
70-23 Sec. 11.316. Application for Rehearing
70-24 Within 30 days from the date of the final determination, any
70-25 affected party may apply to the board <commission> for a rehearing.
71-1 Applications for rehearing which in the opinion of the board
71-2 <commission> are without merit may be denied without notice to
71-3 other parties, but no application for rehearing shall be granted
71-4 without notice to each claimant whose rights are adjudicated and to
71-5 each contesting party.
71-6 SECTION 73. Section 11.307, Water Code, is amended as
71-7 follows:
71-8 Sec. 11.317. Filing Final Determination With District Court
71-9 (a) As soon as practicable after the disposition of all
71-10 applications for rehearing, the board <commission> shall file a
71-11 certified copy of the final determination, together with all
71-12 evidence presented to or considered by the board <commission>, in a
71-13 district court of any county in which the stream or segment under
71-14 adjudication is located. However, if the stream or segment under
71-15 adjudication includes all or parts of three or more counties and if
71-16 10 or more affected persons who appeared in the proceedings
71-17 petition the board <commission> to do so, the board <commission>
71-18 shall file the action in a convenient district court of a judicial
71-19 district which is not within the river basin of the stream or
71-20 segment under adjudication.
71-21 (b) The board <commission> shall obtain an order from the
71-22 court fixing a time not less than 30 days from the date of the
71-23 order for the filing of exceptions to the final determination and
71-24 also fixing a time not less than 60 days from the date of the order
71-25 for the commencement of hearings on exceptions.
72-1 (c) The board <commission> shall immediately give written
72-2 notice of the court order by certified mail to all parties who
72-3 appeared in the proceedings before the board <commission>. The
72-4 board <commission> shall file proof of the service with the court.
72-5 SECTION 74. Section 11.318, Water Code, is amended as
72-6 follows:
72-7 Sec. 11.318. Exceptions to Final Determination. (a) Any
72-8 affected person who appeared in the proceeding before the board
72-9 <commission> may file exceptions to the final determination. An
72-10 exception must state with a reasonable degree of certainty the
72-11 grounds for the exception and must specify the particular
72-12 paragraphs and pages of the determination to which the exception is
72-13 taken.
72-14 (b) Three copies of the exceptions shall be filed in court,
72-15 and a copy shall be served on the board <commission>. The board
72-16 <commission> shall make copies of all exceptions available at a
72-17 reasonable price, based on the cost of reproduction.
72-18 SECTION 75. Section 11.319, Water Code, is amended as
72-19 follows:
72-20 Sec. 11.319. Hearings on Exceptions (a) The court shall
72-21 hear any exceptions that have been filed. The board <commission>
72-22 and all affected persons who appeared in the proceedings before the
72-23 board <commission> are entitled to appear and be heard on the
72-24 exceptions. The court may permit other parties in interest to
72-25 appear and be heard for good cause shown.
73-1 (b) The court may conduct nonjury hearings and proceedings
73-2 at any convenient location within the state. Actual expenses
73-3 incurred by the court outside its judicial district shall be taxed
73-4 as costs.
73-5 SECTION 76. Section 11.320, Water Code, is amended as
73-6 follows:
73-7 Sec. 11.320. Scope of Judicial Review. (a) In passing on
73-8 exceptions, the court shall determine all issues of law and fact
73-9 independently of the board's <commission's> determination. The
73-10 substantial evidence rule shall not be used. The court shall not
73-11 consider any exception which was not brought to the board's
73-12 <commission's> attention by application for rehearing. The court
73-13 shall not consider any issue of fact raised by an exception unless
73-14 the record of evidence before the board <commission> reveals that
73-15 the question was genuinely in issue before the board <commission>.
73-16 (b) A party in interest may demand a jury trial of any issue
73-17 of fact, but the court may in its discretion have a separate trial
73-18 with a separate jury of any such issue.
73-19 (c) The legislature declares that the provisions of this
73-20 section are not severable from the remainder of this subchapter and
73-21 that this subchapter would not have been passed without the
73-22 inclusion of this section. If this section is for any reason held
73-23 invalid, unconstitutional, or inoperative in any way, the holding
73-24 applies to the entire subchapter so that the entire subchapter is
73-25 null and void.
74-1 SECTION 77. Section 11.321, Water Code, is amended as
74-2 follows:
74-3 Sec. 11.321. Evidence
74-4 Any exception heard by the court without a jury may be
74-5 resolved on the record of evidence before the board <commission>,
74-6 or the court may take additional evidence or direct that additional
74-7 evidence be heard by the board <commission>.
74-8 SECTION 78. Section 11.322, Water Code, is amended as
74-9 follows:
74-10 Sec. 11.322. Final Decree (a) After the final hearing, the
74-11 court shall enter a decree affirming or modifying the order of the
74-12 board <commission>.
74-13 (b) The court may assess the costs as it deems just.
74-14 (c) An appeal may be taken from the decree of the court in
74-15 the same manner and with the same effect as in other civil cases.
74-16 (d) The final decree in every water right adjudication is
74-17 final and conclusive as to all existing and prior rights and claims
74-18 to the water rights in the adjudicated stream or segment of a
74-19 stream. The decree is binding on all claimants to water rights
74-20 outside the adjudicated stream or segment of a stream.
74-21 (e) Except for domestic and livestock purposes or rights
74-22 subsequently acquired by permit, a water right is not recognized in
74-23 the adjudicated stream or segment of a stream unless the right is
74-24 included in the final decree of the court.
74-25 SECTION 79. Section 11.323, Water Code, is amended as
75-1 follows:
75-2 Sec. 11.323. Certificate of Adjudication (a) When a final
75-3 determination of the rights to the waters of a stream has been made
75-4 in accordance with the procedure provided in this subchapter and
75-5 the time for a rehearing has expired, the board <commission> shall
75-6 issue to each person adjudicated a water right a certificate of
75-7 adjudication, signed by the chairman of the board and bearing the
75-8 seal of the board <commission>.
75-9 (b) In the certificate, the board <commission> shall
75-10 include:
75-11 (1) a reference to the final decree;
75-12 (2) the name and post-office address of the holder of
75-13 the adjudicated right;
75-14 (3) the priority, extent, and purpose of the
75-15 adjudicated right and, if the right is for irrigation, a
75-16 description of the irrigated land; and
75-17 (4) all other information in the decree relating to
75-18 the adjudicated right.
75-19 SECTION 80. Section 11.324, Water Code, is amended as
75-20 follows:
75-21 Sec. 11.324. Recordation of Certificate (a) The board
75-22 <commission> shall transmit the certificate of adjudication or a
75-23 true copy to the county clerk of each county in which the
75-24 appropriation is made.
75-25 (b) On receipt of the recording fee from the holder of the
76-1 certificate, the county clerk shall file and record the certificate
76-2 in a well-bound book provided and kept for that purpose only. The
76-3 clerk shall index the certificate alphabetically under the name of
76-4 the holder of the certificate of adjudication and under the name of
76-5 the stream or source of water supply.
76-6 (c) When a certificate of adjudication is filed and recorded
76-7 as provided in this section, the county clerk shall deliver the
76-8 certificate on demand to the holder.
76-9 SECTION 81. Section 11.325, Water Code, is amended as
76-10 follows:
76-11 Sec. 11.325. Water Divisions
76-12 The board <commission> shall divide the state into water
76-13 divisions for the purpose of administering adjudicated water
76-14 rights. Water divisions may be created from time to time as the
76-15 necessity arises. The divisions shall be constituted to secure the
76-16 best protection to the holders of water rights and the most
76-17 economical supervision on the part of the state.
76-18 SECTION 82. Section 11.326, Water Code, is amended as
76-19 follows:
76-20 Sec. 11.326. Appointment of Watermaster (a) The executive
76-21 administrator <director> may appoint one watermaster for each water
76-22 division.
76-23 (b) A watermaster holds office until a successor is
76-24 appointed. The executive administrator <director> may remove a
76-25 watermaster at any time.
77-1 (c) The executive administrator <director> may employ
77-2 assistant watermasters and other employees necessary to aid a
77-3 watermaster in the discharge of his duties.
77-4 (d) In a water division in which the office of watermaster
77-5 is vacant, the executive administrator <director> has the powers of
77-6 a watermaster.
77-7 (e) The executive administrator <director> shall supervise
77-8 and generally direct the watermaster in the performance of his
77-9 duties. A watermaster is responsible to the executive
77-10 administrator <director> for the proper performance of his duties.
77-11 (f) A person dissatisfied with any action of a watermaster
77-12 may apply to the executive administrator <director> for relief.
77-13 SECTION 83. Section 11.329, Water Code, is amended as
77-14 follows:
77-15 Sec. 11.329. Compensation and Expenses of Watermaster
77-16 (a) The board <commission> shall pay the compensation and
77-17 necessary expenses of a watermaster, assistant watermasters, and
77-18 other necessary employees, but the holders of water rights that
77-19 have been determined or adjudicated and are to be administered by
77-20 the watermaster shall reimburse the board <commission> for the
77-21 compensation and expenses. Necessary expenses may include costs
77-22 associated with streamflow measurement and monitoring, water
77-23 accounting, assessment billing and collection, and any other duties
77-24 a watermaster may be required to perform under this subchapter.
77-25 (b) After the adjudication decree becomes final, the
78-1 executive administrator <director> shall notify each holder of
78-2 water rights under the decree of the amount of compensation and
78-3 expenses that will be required annually for the administration of
78-4 the water rights so determined.
78-5 (c) The board <commission> shall hold a public hearing to
78-6 determine the apportionment of the costs of administration of
78-7 adjudicated water rights among the holders of the rights. After a
78-8 public hearing, the board <commission> shall issue an order
78-9 assessing the annual cost against the holders of water rights to
78-10 whom the water will be distributed under the final decree. The
78-11 board <commission> shall equitably apportion the costs. The
78-12 executive administrator <director> may provide for payments in
78-13 installments and shall specify the dates by which payments shall be
78-14 made to the board <commission>.
78-15 (d) The executive administrator <director> shall transmit
78-16 all collections under this section to the State Treasurer.
78-17 (e) No water shall be diverted, taken, or stored by, or
78-18 delivered to, any person while he is delinquent in the payment of
78-19 his assessed costs.
78-20 (f) An order of the board <commission> assessing costs
78-21 remains in effect until the board <commission> issues a further
78-22 order. The board <commission> may modify, revoke, or supersede an
78-23 order assessing costs with a subsequent order. The board
78-24 <commission> may issue supplementary orders from time to time to
78-25 apply to new diversions.
79-1 SECTION 84. Section 11.330, Water Code, is amended as
79-2 follows:
79-3 Sec. 11.330. Outlet for Free Passage of Water.
79-4 The owner of any works for the diversion or storage of water
79-5 shall maintain a substantial headgate at the point of diversion, or
79-6 a gate on each discharge pipe of pumping plant, constructed so that
79-7 it can be locked at the proper place by the watermaster, or a
79-8 suitable outlet in a dam to allow the free passage of water that
79-9 the owner of the dam is not entitled to divert or impound. The
79-10 board <commission> shall adopt rules, and the executive
79-11 administrator <director> shall enforce the rules, governing the
79-12 type and location of the headgates or gates and the outlets to
79-13 allow the free passage of water.
79-14 SECTION 85. Section 11.331, Water Code, is amended as
79-15 follows:
79-16 Sec. 11.331. Measuring Devices
79-17 The board <commission>, by rule, may require the owner of any
79-18 works for the diversion, taking, storage, or distribution of water
79-19 to construct and maintain suitable measuring devices at points that
79-20 will enable the watermaster to determine the quantities of water to
79-21 be diverted, taken, stored, released, or distributed in order to
79-22 satisfy the rights of the respective users.
79-23 SECTION 86. Section 11.332, Water Code, is amended as
79-24 follows:
79-25 Sec. 11.332. Installation of Flumes
80-1 The board <commission>, by rule, may require flumes to be
80-2 installed along the line of any ditch if necessary for the
80-3 protection of water rights or other property.
80-4 SECTION 87. Section 11.333, Water Code, is amended as
80-5 follows:
80-6 Sec. 11.333. FAILURE TO COMPLY WITH BOARD <COMMISSION> RULES
80-7 If the owner of waterworks using state water refuses or
80-8 neglects to comply with the rules adopted pursuant to Section
80-9 11.330, 11.331, or 11.332 of this code, the executive administrator
80-10 <director>, after 10 days notice or after a period of additional
80-11 time that is reasonable under the circumstances, may direct the
80-12 watermaster to make adjustments of the control works to prevent the
80-13 owner of the works from diverting, taking, storing, or distributing
80-14 any water until he has fully complied with the rules.
80-15 SECTION 88. Section 11.334, Water Code, is amended as
80-16 follows:
80-17 Sec. 11.334. SUIT AGAINST BOARD <COMMISSION> FOR INJURY
80-18 Any person who is injured by an act of the board <commission>
80-19 under this subchapter may bring suit against the board <commission>
80-20 to review the action or to obtain an injunction. If the water
80-21 right involved has been adjudicated as provided in this subchapter,
80-22 the court shall issue an injunction only if it is shown that the
80-23 board <commission> has failed to carry into effect the decree
80-24 adjudicating the water right.
80-25 SECTION 89. Section 11.335, Water Code, is amended as
81-1 follows:
81-2 Sec. 11.335. Administration of Water Rights No Adjudicated
81-3 (a) If any area in which water rights of record in the
81-4 office of the board <commission> have not been adjudicated, the
81-5 claimants of the rights and the board <commission> may enter into a
81-6 written agreement for their administration.
81-7 (b) An agreement made under authority of this section shall
81-8 provide:
81-9 (1) the basis and manner of distribution of the water
81-10 to which the agreement relates;
81-11 (2) the services of a special watermaster, and
81-12 assistants if necessary, to carry out the agreement; and
81-13 (3) the allocation, collection, and payment of the
81-14 annual costs of administration.
81-15 (c) An agreement to administer unadjudicated water rights
81-16 shall be recorded in the offices of the board <commission> and of
81-17 the county clerk of each county in which any of the works or lands
81-18 affected by the agreement are located.
81-19 (d) The administration of water rights by agreement is
81-20 governed by the provisions of this subchapter except as regards
81-21 allocation and payment of the expenses of the administration.
81-22 (e) No agreement authorized by this section impairs any
81-23 vested right to the use of water or creates any additional rights
81-24 to the use of water.
81-25 SECTION 90. Section 11.336, Water Code, is amended as
82-1 follows:
82-2 Sec. 11.336. Administration of Permits Issued After
82-3 Adjudication
82-4 Permits, other than temporary permits, that are issued by the
82-5 board <commission> to appropriate water from an adjudicated stream
82-6 or segment are subject to administration in the same manner as is
82-7 provided in this subchapter for adjudicated water rights.
82-8 SECTION 91. Section 11.337, Water Code, is amended as
82-9 follows:
82-10 Sec. 11.337. Hearings: Notice and Procedure (a) The board
82-11 <commission> shall give notice of a hearing or other proceeding it
82-12 orders under this subchapter in the manner prescribed in the
82-13 procedural rules of the board <commission>, unless this subchapter
82-14 specifically provides otherwise.
82-15 (b) In any proceeding in any part of the state, the board
82-16 <commission> may:
82-17 (1) take evidence, including the testimony of
82-18 witnesses;
82-19 (2) administer oaths;
82-20 (3) issue subpoenas and compel the attendance of
82-21 witnesses in the same manner as subpoenas are issued out of the
82-22 courts of the state;
82-23 (4) compel witnesses to testify and give evidence; and
82-24 (5) order the taking of depositions and issue board
82-25 <commission>s for the taking of depositions in the same manner as
83-1 depositions are obtained in civil actions.
83-2 (c) Evidence may be taken by a duly appointed reporter
83-3 before the board <commission> or before an authorized
83-4 representative who has the power to administer oaths.
83-5 (d) If a person neglects or refuses to comply with an order
83-6 or subpoena issued by the board <commission> or refuses to testify
83-7 on any matter about which he may be lawfully interrogated, the
83-8 board <commission> may apply to a district court of the county in
83-9 which the proceeding is held to punish him in the manner provided
83-10 by law for such disobedience in civil actions.
83-11 (e) The board <commission> may adjourn its proceedings from
83-12 time to time and from place to place.
83-13 (f) When a proceeding before the board <commission> is
83-14 concluded, the board <commission> shall render a decision as to the
83-15 matters concerning which the proceeding was held.
83-16 SECTION 92. Section 11.338, Water Code, is amended as
83-17 follows:
83-18 Sec. 11.338. Cancellation of Water Rights
83-19 Nothing in this subchapter recognizes any abandoned or
83-20 cancelled water right or impairs in any way the power of the board
83-21 <commission> under general law to forfeit, cancel, or find
83-22 abandoned any water right, including adjudicated water rights.
83-23 SECTION 93. Section 11.340, Water Code, is amended as
83-24 follows:
83-25 Sec. 11.340. Abatement of Certain Civil Suits (a) Nothing
84-1 in this subchapter prevents or precludes a person who claims the
84-2 right to divert water from a stream from filing and prosecuting to
84-3 a conclusion a suit against other claimants of the right to divert
84-4 or use water from the same stream. However, if the board
84-5 <commission> has ordered a determination of water rights as
84-6 provided in this subchapter or if the board <commission> orders
84-7 such a determination within 90 days after notice of the filing of a
84-8 suit, the suit shall be abated on the motion of the board
84-9 <commission> or any party in interest as to any issues involved in
84-10 the water rights determination.
84-11 SECTION 94. The title of Subchapter I, Water Code, is
84-12 amended as follows:
84-13 SUBCHAPTER I. BOARD <COMMISSION>-APPOINTED WATERMASTER
84-14 SECTION 95. Section 11.451, Water Code, is amended as
84-15 follows:
84-16 Sec. 11.451. BOARD <COMMISSION> AUTHORITY
84-17 On petition of 25 or more holders of water rights in a river
84-18 basin or segment of a river basin or on its own motion the board
84-19 <commission> may authorize the executive administrator <director>
84-20 to appoint a watermaster for a river basin or segment of a river
84-21 basin if the board <commission> finds that the rights of senior
84-22 water rights holders in the basin or segment of the basin are
84-23 threatened.
84-24 SECTION 96. Section 11.452, Water Code, is amended as
84-25 follows:
85-1 Sec. 11.452. Procedure for Determination (a) On receiving a
85-2 petition for appointment of a watermaster or on its own motion, the
85-3 board <commission> shall call and hold a hearing to determine if a
85-4 need exists for appointment of a watermaster for the river basin or
85-5 segment of the river basin.
85-6 (b) At the hearing persons who hold water rights in the
85-7 river basin or segment of the river basin may appear before the
85-8 board <commission> and submit testimony and evidence relating to
85-9 the need for appointment of a watermaster.
85-10 (c) After the hearing, the board <commission> shall make a
85-11 written determination as to whether a threat exists to the rights
85-12 of senior water rights holders in the river basin or segment of the
85-13 river basin and shall issue an order either finding that a threat
85-14 exists and directing appointment of a watermaster or denying
85-15 appointment of a watermaster.
85-16 SECTION 97. Section 11.453, Water Code, is amended as
85-17 follows:
85-18 Sec. 11.453. Appointment of Watermaster (a) On issuance of
85-19 an order under Section 11.452 of this chapter directing appointment
85-20 of a watermaster, the executive administrator <director> shall
85-21 appoint a watermaster for the river basin or segment of the river
85-22 basin covered by the board <commission> order.
85-23 (b) A person appointed as a watermaster under this section
85-24 may not be:
85-25 (1) the holder of a water right in the river basin or
86-1 segment of the river basin to be under his jurisdiction as
86-2 watermaster;
86-3 (2) a purchaser of water from the holder of a water
86-4 right in the river basin or segment of the river basin under his
86-5 jurisdiction as watermaster; or
86-6 (3) a landowner of any land adjacent to the river or
86-7 segment of the river under his jurisdiction as watermaster.
86-8 (c) A watermaster holds office until a successor is
86-9 appointed. The executive administrator <director> may remove a
86-10 watermaster at any time.
86-11 (d) The executive administrator <director> may employ
86-12 assistant watermasters and other employees necessary to aid a
86-13 watermaster in the discharge of his duties.
86-14 (e) In a segment or basin in which the office of watermaster
86-15 is vacant, the executive administrator <director> has the powers of
86-16 a watermaster.
86-17 (f) The executive administrator <director> shall supervise
86-18 and generally direct the watermaster in the performance of his
86-19 duties. A watermaster is responsible to the executive
86-20 administrator <director> for the proper performance of his duties.
86-21 (g) A person dissatisfied with any action of a watermaster
86-22 may apply to the executive administrator <director> for relief.
86-23 SECTION 98. Section 11.454, Water Code, is amended as
86-24 follows:
86-25 Sec. 11.454. Duties and Authority of the Watermaster
87-1 A watermaster as the agent of the board <commission> and
87-2 under the executive administrator's <director's> supervision shall:
87-3 (1) divide the water of the streams or other sources
87-4 of supply of his segment or basin in accordance with the authorized
87-5 water rights;
87-6 (2) regulate or cause to be regulated the controlling
87-7 works of reservoirs and diversion works in time of water shortage,
87-8 as is necessary because of the rights existing in the streams of
87-9 his segment or basin, or as is necessary to prevent the waste of
87-10 water or its diversion, taking, storage, or use in excess of the
87-11 quantities to which the holders of water rights are lawfully
87-12 entitled; and
87-13 (3) perform any other duties and exercise any
87-14 authority directed by the board <commission>.
87-15 SECTION 99. Section 11.455, Water Code, is amended as
87-16 follows:
87-17 Sec. 11.455. Assessments The board <commission> may assess
87-18 the costs of the watermaster against all persons who hold water
87-19 rights in the river basin or segment of the river basin under the
87-20 watermaster's jurisdiction in accordance with Section 11.329 of
87-21 this code.
87-22 SECTION 100. Section 11.456, Water Code, is amended as
87-23 follows:
87-24 Sec. 11.456. Maintaining Current Status (a) To protect
87-25 water rights holders in a river basin or segment of a river basin
88-1 during the proceedings under Section 11.452 of this code, the board
88-2 <commission> may issue an order or orders at the beginning of the
88-3 proceedings under Section 11.452 of this code or may request the
88-4 attorney general to seek injunctive relief to protect the water
88-5 rights holders during the proceedings.
88-6 (b) On request of the board <commission>, the attorney
88-7 general shall seek injunctive relief to carry out the purpose of
88-8 Subsection (a) of this section.
88-9 (c) The board <commission> is not required to comply with
88-10 the requirements of the Administrative Procedure and Texas Register
88-11 Act (Article 6252-13a, Vernon's Texas Civil Statutes) in issuing
88-12 orders under Subsection (a) of this section and there is no right
88-13 of appeal from those orders.
88-14 SECTION 101. Section 11.457, Water Code, is amended as
88-15 follows:
88-16 Sec. 11.457. Assistance to Watermaster
88-17 The executive administrator <director> shall provide the
88-18 watermaster with such staff and facilities as are necessary to
88-19 carry out this subchapter.
88-20 SECTION 102. Section 12.011, Water Code, is amended as
88-21 follows:
88-22 Sec. 12.011. Permit Applications
88-23 The board <commission> shall receive, administer, and act on
88-24 all applications for permits and permit amendments:
88-25 (1) to appropriate public water for beneficial use or
89-1 storage; or
89-2 (2) to construct works for the impoundment, storage,
89-3 diversion, or transportation of public water.
89-4 SECTION 103. Section 12.012, Water Code, is amended as
89-5 follows:
89-6 Sec. 12.012. Evaluation of Outstanding Permits
89-7 The board <commission> shall actively and continually
89-8 evaluate outstanding permits and certified filings and shall carry
89-9 out measures to cancel wholly or partially the certified filings
89-10 and permits that are subject to cancellation.
89-11 SECTION 104. Section 12.013, Water Code, is amended as
89-12 follows:
89-13 Sec. 12.013. Rate-Fixing Power (a) The board <commission>
89-14 shall fix reasonable rates for the furnishing of raw or treated
89-15 water for any purpose mentioned in Chapter 11 or 12 of this code.
89-16 (b) The term "political subdivision" when used in this
89-17 section means incorporated cities, towns or villages, counties,
89-18 river authorities, water districts, and other special purpose
89-19 districts.
89-20 (c) The board <commission> in reviewing and fixing
89-21 reasonable rates for furnishing water under this section may use
89-22 any reasonable basis for fixing rates as may be determined by the
89-23 board <commission> to be appropriate under the circumstances of the
89-24 case being reviewed; provided, however, the board <commission> may
89-25 not fix a rate which a political subdivision may charge for
90-1 furnishing water which is less than the amount required to meet the
90-2 debt service and bond coverage requirements of that political
90-3 subdivision's outstanding debt.
90-4 (d) The board's <commission's> jurisdiction under this
90-5 section relating to incorporated cities, towns, or villages shall
90-6 be limited to water furnished by such city, town, or village to
90-7 another political subdivision on a wholesale basis.
90-8 (e) The board <commission> may establish interim rates and
90-9 compel continuing service during the pendency of any rate
90-10 proceeding.
90-11 (f) The board <commission> may order a refund or assess
90-12 additional charges from the date a petition for rate review is
90-13 received by the board <commission> of the difference between the
90-14 rate actually charged and the rate fixed by the board <commission>,
90-15 plus interest at the statutory rate.
90-16 (g) No action or proceeding commenced prior to January 1,
90-17 1977, before the Texas Water Rights Commission shall be affected by
90-18 the enactment of this section.
90-19 (h) Nothing herein contained shall affect the jurisdiction
90-20 of the Public Utility Commission.
90-21 SECTION 105. Section 12.014, Water Code, is amended as
90-22 follows:
90-23 Sec. 12.014. USE OF BOARD <COMMISSION> SURVEYS; POLICY
90-24 The board <commission> shall make use of surveys, studies,
90-25 and investigations conducted by the staff of the board <commission>
91-1 in order to ascertain the character of the principal requirements
91-2 of the district regional division of the watershed areas of the
91-3 state for beneficial uses of water, to the end that distribution of
91-4 the right to take and use state water may be more equitably
91-5 administered in the public interest, that privileges granted for
91-6 recognized uses may be economically coordinated so as to achieve
91-7 the maximum of public value from the state's water resources, and
91-8 that the distinct regional necessities for water control and
91-9 conservation and for control of harmful floods may be recognized.
91-10 SECTION 106. (a) The powers, duties and administrative
91-11 responsibilities delegated to the Texas Water Commission under
91-12 Subchapter I of Title 2 of the Texas Water Code are transferred to
91-13 the Texas Water Development Board.
91-14 (b) All references to the Texas Water Commission in
91-15 Subchapter I of Title 2 of the Texas Water Code are deemed to be
91-16 references to the Texas Water Development Board.
91-17 SECTION 107. (a) The powers, duties and administrative
91-18 responsibilities delegated to the Texas Water Commission under
91-19 Chapters 50 through 56 of the Texas Water Code are transferred to
91-20 the Texas Water Development Board.
91-21 (b) All references to the Texas Water Commission in Chapters
91-22 50 through 56 of the Texas Water Code are deemed to be references
91-23 to the Texas Water Development Board.
91-24 SECTION 108. The importance of this legislation and the
91-25 crowded condition of the calendars in both houses create an
92-1 emergency and an imperative public necessity that the
92-2 constitutional rule requiring bills to be read on three several
92-3 days in each house be suspended, and this rule is hereby suspended.