By King H.B. No. 753
Substitute the following for H.B. No. 753:
By King C.S.H.B. No. 753
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the validation of a certain agreement between the
1-3 Edwards Underground Water District, the Medina County Underground
1-4 Water Conservation District, and the Uvalde County Underground
1-5 Water Conservation District.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. COMPREHENSIVE MANAGEMENT PLAN. The Edwards
1-8 Underground Water District, Medina Underground Water Conservation
1-9 District and the Uvalde Underground Water Conservation District
1-10 agree by contract to implement a comprehensive management plan for
1-11 the region. The "Edwards Aquifer Interlocal Contract" is a plan
1-12 that protects the regions water, spring species, health and public
1-13 safety and benefits all in the region.
1-14 1. PURPOSE.
1-15 The purpose of this SECTION is to achieve sound, equitable,
1-16 and regional management of the Edwards Aquifer (hereinafter
1-17 "Aquifer") by all parties who have the power and duty to do so,
1-18 whether derived from law, from environmental, economic or social
1-19 interests, or from stewardship of a unique natural resource.
1-20 1.1. Specifically, the three districts (Edwards, Medina and
1-21 Uvalde) agree to the following:
1-22 1.1.1. to provide the fair and equitable management of
1-23 the Aquifer;
1-24 1.1.2. to enforce proper management of the Aquifer
2-1 through regional cooperation;
2-2 1.1.3. maintain springflows at levels necessary to
2-3 comply with the Endangered Species Act (as hereinafter defined);
2-4 1.1.4. maintain water supplies sufficient to meet the
2-5 needs of users in the region;
2-6 1.1.5. increase water supplies in the region and
2-7 prevent over-production and depletion of the Aquifer;
2-8 1.1.6. protect water quality of the Aquifer and
2-9 prevent degradation;
2-10 1.1.7. prevent waste; and
2-11 1.1.8. increase public education and awareness
2-12 concerning the Aquifer.
2-13 1.2. The water management provisions contained in this
2-14 SECTION are based on the following principles:
2-15 1.2.1. to preserve local control and elected
2-16 representation within the three Districts;
2-17 1.2.2. to finance new or alternative water supplies on
2-18 the basis of "whoever benefits--pays."
2-19 1.2.3. to preserve property rights;
2-20 1.2.4. to provide regional water management
2-21 coordination and cooperation;
2-22 1.2.5. to provide reduction of non-essential,
2-23 inefficient uses of Aquifer water;
2-24 1.2.6. to provide increase supplies through
2-25 cost-effective methods; and
2-26 1.2.7. to ensure adequate and fair funding mechanisms.
2-27 2. DEFINITIONS.
3-1 The following terms contained in quotations shall have the
3-2 following meanings for the purpose of this SECTION:
3-3 2.1. "Beneficial Use" shall have the meaning assigned by
3-4 Texas Water Code Section 52.001 or Section 1.02 of the 1992 Demand
3-5 Management Plan of the Edwards District, as applicable.
3-6 2.2. "Endangered Species Act" as codified in 16 U.S.C.
3-7 Sections 1531-1544, as may be amended.
3-8 2.3. "Waste" shall have the meaning assigned by Texas Water
3-9 Code Section 52.001 or Section 1.02 of the 1992 Demand Management
3-10 Plan of the Edwards District, as applicable.
3-11 3. GOVERNANCE.
3-12 3.1. Governing Powers. The Parties will retain their own
3-13 governing structure and maintain local control. The Parties agree
3-14 to cooperate in carrying out this Contract. The Parties will
3-15 discharge their duties and responsibilities as set forth in statute
3-16 and regulation. In addition to its current statutory powers, the
3-17 Edwards District will seek legislative authority to implement
3-18 powers analogous and parallel to powers of districts organized
3-19 under Chapter 52 of the Texas Water Code.
3-20 3.2. Geographic Boundary. The geographic boundary
3-21 encompassed by this Contract is equivalent to the cumulative area
3-22 of the counties covered by each Party's geographic jurisdiction or
3-23 boundary under law.
3-24 3.3. Liaison Committee. The Edwards Aquifer Liaison
3-25 Committee ("Liaison Committee") shall function as a coordinating
3-26 committee among the Parties to this Contract. Each District will
3-27 appoint a minimum of one representative per county to the liaison
4-1 Committee, with criteria for appointment to be determined by each
4-2 county. The Liaison Committee will meet at least quarterly or as
4-3 needed to facilitate communication, cooperation, and implementation
4-4 of policy matters under this Contract. The Liaison Committee has
4-5 no governance powers in law. The Parties may create working groups
4-6 to the Liaison Committee to consider technical and other issues.
4-7 The Liaison Committee will coordinate water planning efforts with
4-8 other regional entities, including, but not limited to, river
4-9 authorities, other water districts, and water purveyors in the
4-10 Aquifer region.
4-11 4. FINANCING STRUCTURE.
4-12 In general, the Parties agree that the overall financing
4-13 structure for water management administration, water supplies,
4-14 water markets, recharge or surface water projects, and other
4-15 similar projects shall be based upon the guiding principle that
4-16 "Those who benefit--pay." Projects to enhance recharge, to develop
4-17 surface water supplies, to increase water conservation, and to
4-18 achieve other purposes will be funded by Parties to this Contract
4-19 in proportion to benefits that each Party will gain by each
4-20 project.
4-21 4.1. Ad Valorem Taxation. All Parties will levy and collect
4-22 ad valorem taxes at the rates set by the respective District.
4-23 4.2. Production Fees.
4-24 4.2.1. The Edwards District may request statutory
4-25 authority to levy and collect production fees in addition to ad
4-26 valorem taxes within its District.
4-27 4.2.2. The Medina District and the Uvalde District do
5-1 not contemplate collection production fees, except as may be
5-2 allowed under Section 4.3 of this Contract.
5-3 4.2.3. Under the terms of this Contract, the Medina
5-4 District and the Uvalde District shall not be obligated to pay
5-5 production fees for water use from the Aquifer up to their Aquifer
5-6 Management Guideline, as defined hereinafter in Section 4.9 as
5-7 being 120,000 acre feet for the Medina District and 160,000 acre
5-8 feet for the Uvalde District on a per annum basis.
5-9 4.2.4. Upon receiving legislative authorization, the
5-10 Edwards District will assess a reasonable base fee per acre-foot
5-11 for water use from zero acre-feet to the total acre-feet designated
5-12 as its Aquifer Management Guideline, as defined in Section 4.9 as
5-13 being a cumulative total of 370,000 acre feet for the Edwards
5-14 District, with 325,000 acre feet for all of Bexar County, 30,000
5-15 acre feet for Comal County, 15,000 acre feet for Hays County on a
5-16 per annum basis. Fees for water use in excess of the Edwards
5-17 District's Aquifer Management Guideline will be set on a
5-18 progressive rate schedule. The Edwards District may also assess
5-19 fees on a progressive rate schedule when its conditions warrant.
5-20 4.3. Production Surcharge Fees. The Parties may seek
5-21 legislative authority to individually decide to levy and collect
5-22 production surcharge fees for different types of users and uses in
5-23 times of drought, or other appropriate condition, to finance water
5-24 supply enhancements, and to distribute production reductions
5-25 equitably and cost-effectively among Aquifer users.
5-26 4.4. Transport and Export Fees. Both transport and export
5-27 fees may be imposed at the discretion of each Party pursuant to
6-1 Sections 5.11 and 5.12 of this Contract.
6-2 4.5. General Obligation Bonds and Revenue Bonds. The
6-3 Parties agree to consider the issuance to general obligation and/or
6-4 revenue bonds pursuant to their statutory requirements, in order to
6-5 finance projects to implement this Contract.
6-6 4.6. Making Loans and Grants. The Parties may seek
6-7 legislative authority to make loans and/or grants to water users
6-8 within their respective districts in order to implement goals
6-9 consistent with this Contract.
6-10 4.7. Receiving Loans and Grants. The Parties may currently
6-11 receive loans and grants under their enabling statutes.
6-12 4.8. Research Costs. The Parties agree to voluntary
6-13 contribute to research projects relating to the hydrology, geology,
6-14 meteorology and other scientific characteristics and dynamics of
6-15 the hydrological systems found in the Aquifer. A Party's voluntary
6-16 contribution towards such research projects will be based upon that
6-17 Party's expected benefits.
6-18 4.9. Aquifer Management Guidelines. The parties agree to
6-19 finance water supplies from the Supplemental Sources (hereinafter
6-20 defined) above county-specific Aquifer Management Guidelines
6-21 (herein so called), defined as the historic high usage compiled by
6-22 the Texas Water Development Board and United States Geological
6-23 Survey, as specifically set forth herein. The Aquifer Management
6-24 Guidelines are: 160,000 acre-feet per annum for the Uvalde
6-25 District; 120,000 acre-feet per annum for the Medina District; and
6-26 a cumulative total of 370,000 acre-feet per annum for the Edwards
6-27 District, with 325,000 acre-feet per annum for all of Bexar County,
7-1 30,000 acre-feet per annum for Comal County, and 15,000 acre-feet
7-2 per annum for Hays County. Such Aquifer Management Guidelines do
7-3 not constitute allocations and will be used solely for the purpose
7-4 of implementing this Contract. The Medina District and Uvalde
7-5 District retain discretion to determine financing for any water
7-6 supplies above their respective Aquifer Management Guidelines.
7-7 5. WATER MANAGEMENT ELEMENTS
7-8 The Parties recognize and set forth their agreed upon terms
7-9 and conditions regarding the following key elements of
7-10 comprehensive water management planning.:
7-11 5.1. Aquifer Complexity. The Aquifer is a unique and
7-12 complex hydrological system. In general, the highly porous,
7-13 faulted, and fresh-water bearing limestones of the Aquifer are
7-14 across south-central Texas from parts of Kinney County to parts of
7-15 Uvalde, Medina, Bexar, Comal, and Hays Counties. The 180-mile
7-16 expanse of the fresh-water reservoir is defined by these
7-17 hydrogeological boundaries: (1) the updip limit of the recharge
7-18 are to the north and northwest; (2) the ground water divides in
7-19 Kinney County to the west and in Hays County to the northeast; and
7-20 (3) the downdip limit of freshwater, locally known as the fresh
7-21 water and saline water interface, to the south; and bounded
7-22 stratigraphically by the older Glen Rose Formation below, and the
7-23 younger Del Rio Formation above.
7-24 The arbitrary subsurface boundary between the fresh-water and
7-25 saline-water zones in the downdip artesian portion of the Aquifer
7-26 is defined by a 1000mg/1 dissolved solids concentration contour.
7-27 This contour is sometimes referred to as the fresh/saline-water
8-1 interface. In the fresh-water zone, void spaces (vugs) in the
8-2 rocks are better connected, whereas in the saline zone the opposite
8-3 is true. Thus the circulation of ground water in the fresh-water
8-4 zone is much greater than in the saline-water zone.
8-5 The freshwater part of the Aquifer has three major
8-6 hydrogeologic components: (1) a catchment area on the Edwards
8-7 Plateau; (2) a recharge area, or unconfined zone, that is part of
8-8 the Balcones fault zone; and (3) an artesian area, or confined
8-9 zone, underlying the Gulf Coastal Plain. The catchment area is
8-10 separated from the recharge and artesian areas by an outcrop of the
8-11 Glen Rose Formation, which has relatively little permeability and
8-12 is considered a confining bed. The Balcones fault zone, which
8-13 includes the recharge area, extends into most of the artesian
8-14 area. Within the recharge area, groundwater generally is under
8-15 unconfined conditions.
8-16 Recharge to the Aquifer occurs in the outcrop area, primarily
8-17 from streams crossing over the upper portion of the Nueces River
8-18 Basin, the upper portion of the San Antonio River Basin and a part
8-19 of the upper portion of the Guadalupe River Basin. Water readily
8-20 infiltrates the highly fractured and permeable carbonate rocks that
8-21 occur along the streambeds, and through karstic features such as
8-22 sinkholes.
8-23 Water movement is generally in a west to east direction,
8-24 however, due to complex structural faulting and stratigraphic
8-25 heterogeneity, Aquifer compartmentalization is likely and local
8-26 flow paths are undefined. The Knippa gap (the "Gap"), located near
8-27 the Uvalde and Medina County line, is a partial barrier
9-1 (constriction) to flow, from west to east, within the Aquifer
9-2 because of yet undefined, structural and stratigraphic variations
9-3 in the rock. As a result, the restriction to transmissvity of
9-4 water, can create a reservoir pressure differential on either side
9-5 of the Gap. The effect can be evidenced at certain times by higher
9-6 water levels in wells on the Uvalde side of the Gap.
9-7 Groundwater discharge from the Aquifer in the region is by
9-8 springflow and by either flowing or pumped discharge from wells.
9-9 The very high yield of the artesian wells result from the
9-10 intersection of permeable, vugular stratum by the well bore. The
9-11 depths to those strata vary with location and depend on the
9-12 topography and the structural configuration of the Aquifer. These
9-13 depths range from less than 100 feet within the unconfined Aquifer
9-14 to more than 3,000 feet in the confined Aquifer. Water production
9-15 from the artesian zone of the Aquifer supports municipal,
9-16 industrial, commercial and agricultural uses for over a million
9-17 people.
9-18 Six major springs are natural outlets of the Aquifer. In
9-19 Comal and Hays Counties, major discharge points for the freshwater
9-20 zoned occur at Comal Springs and San Marcos Springs, respectively.
9-21 Water flow from the springs supports commercial, industrial,
9-22 municipal uses and several endangered species.
9-23 5.2. Long-term Planning. The Parties agree to collect
9-24 information on current usage patterns to project future needs and
9-25 ensure adequate long-term water supplies. The Parties further
9-26 agree to adopt policy or rules requiring accurate reporting of
9-27 production from all wells located within each District. Cumulative
10-1 use from domestic and livestock wells producing less than 25,000
10-2 gallons per day shall be estimated by the Districts utilizing USGS
10-3 figures.
10-4 5.3. Springflow. The Parties agree to enact water use
10-5 policies to maintain springflows at levels adequate to comply with
10-6 the Endangered Species Act. Accordingly, the Parties agree to take
10-7 all steps required by existing law to ensure compliance with the
10-8 Endangered Species Act.
10-9 5.4. Downstream and Upstream Interests. The Parties agree
10-10 to use their best efforts to coordinate regional management with
10-11 other entities within the hydrological boundaries of the Aquifer
10-12 and region including the catchment, recharging and artesian zones,
10-13 and entities dependent thereon.
10-14 5.5. Drought Response Plans. On or before November 21,
10-15 1995, each Party agrees to adopt, maintain and enforce its own
10-16 drought response plan to respond to critical conditions as the same
10-17 are defined by each District.
10-18 5.6. Conservation Plans. On or before November 21, 1995,
10-19 each Party agrees to adopt, maintain, and enforce its own
10-20 conservation plan addressing at least two key elements:
10-21 (1) efficiency of water use to meet the conservation and
10-22 preservation duties of all users of the Aquifer; and
10-23 (2) conservation measures that are both reversibly and financially
10-24 compensatory for the conserving user. For purposes of this
10-25 Contract, the term "conservation plan" does not refer to
10-26 conservation plans required by Section 1539(a) of the Endangered
10-27 Species Act.
11-1 5.7. Reuse Policies. Each Party agrees to develop and
11-2 promote policies for reusing water drawn from the Aquifer. The
11-3 reuse policies may be incorporated into each District's respective
11-4 conservation plan or water supply plan.
11-5 5.8. Water Quality. The Parties agree to preserve the
11-6 water quality of the Aquifer and to prevent degradation. The
11-7 Parties may seek powers, in addition to existing authority, to
11-8 preserve water quality. By November 21, 1995, the Parties agree to
11-9 adopt, maintain and enforce a water quality plan to preserve water
11-10 quality and to prevent degradation of the Aquifer.
11-11 5.9. Water Supplies. The Parties agree that water supplies
11-12 should be managed to meet Beneficial Uses in the region equitably.
11-13 The Parties may seed additional legislative powers to develop and
11-14 use some to these supply sources.
11-15 5.9.1. The Edwards District will seek 75,000 acre-feet
11-16 of water supplies in accordance with the principle established in
11-17 Sections 1.2.2 and 4 hereof. Negotiations for these water supplies
11-18 must commence not later than ten (10) days after the Effective Date
11-19 of this Contract.
11-20 5.9.2. The Parties agree to seed and develop water
11-21 supplies from, inter alia, Supplemental Sources, defined below, on
11-22 a "whoever benefits--pays" basis.
11-23 5.9.3. Other water supplies identified in the region
11-24 include, but are not limited to, the following (the "Supplemental
11-25 Sources"):
11-26 5.9.3.1. Purchase or retirement of irrigation
11-27 rights, or other water rights on a free market basis;
12-1 5.9.3.2. Purchase and/or transfer of water from
12-2 Canyon Lake;
12-3 5.9.3.3. Construction of recharge projects over
12-4 the Aquifer where beneficial, e.g., the Guadalupe-San Antonio Basin
12-5 recharge options and the Nueces River Basin recharge options;
12-6 5.9.3.4. Use of all supply potentials of the
12-7 Medina Lake system, including additional recharge and surface and
12-8 surface water;
12-9 5.9.3.5. Intra-basin transfers, i.e., within the
12-10 Aquifer region, transfer or trade of water supplies.
12-11 5.9.3.6. Inter-basin transfers, i.e., outside
12-12 the Aquifer region, transfer or trade of water supplies.
12-13 5.9.3.7. Aquifer storage and recovery projects
12-14 in the Aquifer as well as other aquifers such as the Carrizo
12-15 Aquifer;
12-16 5.9.3.8. Springflow recirculation and/or reuse
12-17 to reclaim excess waters form the springs;
12-18 5.9.3.9. Construction of new reservoirs;
12-19 5.9.3.10. Conjunctive use of surface and
12-20 groundwater management; and
12-21 5.9.3.11. Recharging waters from other basins
12-22 into the Aquifer.
12-23 5.10. Water Management Tools. The Parties agree to consider
12-24 utilization of water management tools, including, but not limited
12-25 to: (1) well size and spacing rules and limitations on production;
12-26 (2) augmentation strategies; (3) production rate redistribution;
12-27 (4) conjunctive use; and (5) dry year option during critical
13-1 periods.
13-2 The districts are also authorized to develop recovery plans,
13-3 habitat conservation plans, biological assessments, and other
13-4 elements in order to apply for incidental take permits under the
13-5 Endangered Species Act.
13-6 5.11. Transport of Water. The Parties agree that
13-7 transportation of water within a District should be regulated to
13-8 prevent waste. The Parties may seek necessary legislative
13-9 authority to regulate water transportation within a District,
13-10 including the imposition of transport fees.
13-11 5.12. Export of Water. The Parties agree to prohibit the
13-12 export of water outside a District. The parties will "grandfather"
13-13 current water exporters at historic levels of water exports. The
13-14 Edwards District may grant exceptions, or exemptions.
13-15 Grandfathered water exporters, and any exceptions or
13-16 exemptions shall be subject to a respective District's plans as
13-17 required herein and District rules. The Parties may seek
13-18 additional legislative authority to regulate exports of water
13-19 outside a District, including: (1) imposition of export fees at
13-20 the discretion of each District to replenish exported water, or (2)
13-21 varying fees based on levels of production for exports.
13-22 5.13. Production Management. The Parties agree that
13-23 production must be managed to prevent over-production and depletion
13-24 of the Aquifer.
13-25 5.14. Water Markets. The Parties agree that when approved
13-26 by a District, water markets may be allowed within such District
13-27 including water rights transfers and the abatement or retirement of
14-1 water rights. Policies implemented by the Parties will require
14-2 that: (1) water market transactions, i.e., purchase, transfer or
14-3 retirement, will be conducted on a free market basis; and (2) the
14-4 particular District approved the transaction, and (3) time duration
14-5 elements be specified in the water market transactions.
14-6 6. WATER AND OTHER PROPERTY RIGHTS.
14-7 Nothing in this Contract creates or diminishes water rights
14-8 or other property rights recognized under law.
14-9 7. DISPUTE RESOLUTION.
14-10 All claims and controversies arising out of or relating to
14-11 this Contract shall be referred for resolution immediately by each
14-12 Party to its General Manager. If the General Managers are unable
14-13 to resolve the dispute in fifteen (15) days after it is referred to
14-14 the, then and Party, before taking further action, shall first
14-15 initiate action to resolve the dispute by referring the dispute to
14-16 mediation as provided below.
14-17 The Parties agree to submit any dispute or controversy
14-18 arising out of or relating to this Contract, which has not been
14-19 resolved under the procedures established above, to nonbinding
14-20 mediation to be held in accordance with the provisions of the
14-21 Commercial Mediation Rules of the American Arbitration Association.
14-22 The Parties agree that their participation in the mediation and the
14-23 entire mediation proceeding, including but not limited to all
14-24 statements, discussions, conduct, rulings, findings or
14-25 determinations in that mediation proceeding or relating to it, will
14-26 be confidential, will constitute settlement negotiations under Rule
14-27 408 of the Federal Rules of Evidence, and will not be admissible in
15-1 any proceeding or action of any kind and that neither Party will
15-2 introduce or attempt to introduce the above in any proceeding or
15-3 action. The Parties agree to perform whatever steps are necessary
15-4 to ensure that the medication proceeding complies with the
15-5 provisions of this Section.
15-6 Except for actions to specifically enforce this section,
15-7 litigation may only be commenced not earlier than ten (10) days
15-8 after the conclusion of the mediation proceedings. No action
15-9 arising out of or in connection with a particular mediation
15-10 proceeding under this Contract may be brought by any Party more
15-11 than twelve (12) months after the conclusion of such mediation
15-12 proceedings.
15-13 8. ENFORCEMENT.
15-14 Each Party agrees to meet fully its general and specific
15-15 performance requirements under this Contract. The Parties may seek
15-16 enforcement of this Contract as authorized at law or in equity.
15-17 This Contract is not enforceable by any person other than the
15-18 Parties hereto.
15-19 9. MISCELLANEOUS PROVISIONS.
15-20 9.1. Entire Contract. This contract represents the entire
15-21 agreement between the Parties regarding the subject matter hereof
15-22 and supersedes all prior oral and written proposals and
15-23 communications.
15-24 9.2. Term of Contract. The term of this Contract shall
15-25 commence upon the signing of this instrument of all the Parties
15-26 (the "Effective Date") and shall remain in full force and effect
15-27 until it is superseded by law, or amended as provided herein.
16-1 9.3. Amendment. This Contract may be amended upon written
16-2 request of any Party and the subsequent written concurrence of all
16-3 Parties.
16-4 9.4. Notices. Any Notice permitted or required hereunder
16-5 will be sent by first class mail, registered or certified and by
16-6 fax transmission to the Edwards Underground Water District, Medina
16-7 County Underground Water Conservation District, and Uvalde County
16-8 Underground Water Conservation District.
16-9 9.5. Force Majeure. The Parties hereto shall not be
16-10 responsible or liable in any way for any delay or failure to
16-11 perform its obligations hereunder when such delay or failure is
16-12 caused by conditions or circumstances beyond its control. Such
16-13 causes may include, but are not restricted to, Acts of God or of
16-14 the public enemy, acts of the government in the sovereign capacity,
16-15 fires, floods, epidemics, earthquakes, quarantine restrictions,
16-16 strikes, freight embargoes and unusually severe weather.
16-17 9.6. Governing Law. This Contract will be governed in all
16-18 respects by the laws of the State of Texas.
16-19 9.7. Severability. If any provision of this Contract is
16-20 held to be illegal, invalid or unenforceable under present or
16-21 future law effective during the terms hereof, such provision shall
16-22 be fully severable. This Contract shall be construed and enforced
16-23 as if such illegal, invalid or unenforceable provision had never
16-24 comprised a part hereof and the remaining portions hereof shall
16-25 remain in full force and effect and shall not be affected by the
16-26 illegal, invalid or unenforceable provision or by its severance
16-27 from this Contract.
17-1 9.8. Counterparts. This Contract may be executed in
17-2 counterparts, each of which shall be deemed an original for all
17-3 purposes, and all which collectively constitute one agreement;
17-4 provided, however, that in making proof of this Contract, it shall
17-5 not be necessary to produce or account for more than one such
17-6 counterpart.
17-7 SECTION 2. The importance of this legislation and the
17-8 crowded condition of the calendars in both houses create an
17-9 emergency and an imperative public necessity that the
17-10 constitutional rule requiring bills to be read on three several
17-11 days in each house be suspended, and this rule is hereby suspended,
17-12 and that this Act take effect and be in force from and after its
17-13 passage, and it is so enacted.