By Rodriguez                                          H.B. No. 1989
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the appropriation and regulation of State water for
    1-3  beneficial use, including underground storage or recharge of State
    1-4  water in aquifers, other than that portion of Edwards Aquifer in
    1-5  Kinney, Uvalde, Medina, Bexar, Comal and Hays Counties.
    1-6        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-7        SECTION 1.  Findings and Declaration of State Policy.
    1-8        (i)  The Legislature finds that the underground storage or
    1-9  recharge of State water in aquifers constitutes a beneficial use of
   1-10  State water.  The Legislature further finds that the use of
   1-11  aquifers for storage or recharge of State water (a)  will
   1-12  (1)  enhance the conservation and protection of appropriated State
   1-13  water by minimizing evaporation and seepage losses, (2)  reduce the
   1-14  incidental environmental impacts associated with the construction
   1-15  of alternative conventional water storage facilities such as above
   1-16  ground reservoirs, and (3)  through artificial recharge of State
   1-17  water enhance and protect groundwater resources, and (b)  is a
   1-18  necessary use of State water incident to maximizing the
   1-19  conservation beneficial use of such water.
   1-20        (ii)  The Legislation finds the that the storage or recharge
   1-21  of State water in aquifers will not affect property rights,
   1-22  including the ownership and rights of owners of land and his
   1-23  lessees and assigns in underground water subject to the right of
    2-1  capture, which rights are hereby recognized.
    2-2        (iii)  The Legislature finds that the storage or recharge of
    2-3  State water in aquifers will not affect the authority or
    2-4  jurisdiction of Underground Conservation Districts.
    2-5        (iv)  The Legislature finds that the use of aquifers as
    2-6  storage facilities for State water may relieve a portion of the
    2-7  economic burden upon taxpayers and utility ratepayers commonly
    2-8  associated with the construction of alternative conventional water
    2-9  storage facilities.
   2-10        Thus, the Legislature finds that the use of aquifers for
   2-11  storage or recharge of appropriated State water complies with the
   2-12  State of Texas to protect and conserve State water, and to enhance
   2-13  and maximize its beneficial use, mandated by the Conservation
   2-14  Amendment (Tex.  Const. Art XVI, ss59).
   2-15        SECTION 2.  Amending Language.  In keeping with the "Findings
   2-16  and Declaration of State Policy" in Section 1 of this Act, Section
   2-17  11.023, Water Code, is amended to add the following sections, which
   2-18  read as follows:
   2-19        (i)  State water may be appropriated for beneficial use for
   2-20  recharge, or any other beneficial use and incidental to such use
   2-21  may be stored in aquifers of the State for later retrieval for
   2-22  beneficial use on the surface.
   2-23        (ii)  Notwithstanding the authority granted in paragraph (i)
   2-24  of this Section, authorization to appropriate State water for
   2-25  recharge or injection into that portion of the Edwards Aquifer in
    3-1  Kinney, Uvalde, Medina, Bexar, Comal and Hays Counties is subject
    3-2  to the provisions of Section 11.023(c)-(d) of this Code.
    3-3        (iii)  The storage of State Water granted in paragraph (i) of
    3-4  this Section will only be authorized if it can be established by
    3-5  substantive evidence accompanying an application filed to
    3-6  appropriate State water for such purpose, or in a contested hearing
    3-7  by expert testimony, that an unreasonable loss State water will not
    3-8  occur and that the stored water can be withdrawn at a later time
    3-9  for application to any beneficial use authorized by statute.
   3-10        (iv)  State water stored underground in aquifers pursuant to
   3-11  paragraph (i) of this section shall retain its character as State
   3-12  water, and remain subject (a)  to the terms and conditions imposed
   3-13  by any permit, or amendment to any permit, authorizing such
   3-14  underground storage or recharge issued by the Commission, and
   3-15  (b)  to the ongoing supervision of the Commission and any rules
   3-16  promulgated by the Commission within its jurisdiction.  Although
   3-17  retaining its character as State water, any State water stored in
   3-18  or recharged to an aquifers pursuant to this section which becomes
   3-19  commingled with native groundwater may be subject to capture by the
   3-20  owner of real property overlying the commingled water.  Provided,
   3-21  further, that the potential loss of water, which may occur through
   3-22  the exercise of the right of capture by a landowner overlying the
   3-23  aquifer used for storage or recharge of State water, shall be
   3-24  deemed to be a beneficial use of State water, subject only to the
   3-25  prohibitions of Chapter 11 of this Code against waste.
    4-1        (v)  Any person desiring to store or recharge State water in
    4-2  an aquifer for subsequent retrieval must so state in the
    4-3  application to appropriate State water, or in any request for an
    4-4  amendment to an existing appropriation, filed with the Commission.
    4-5        (vi)  In determining whether to grant a request to allow the
    4-6  underground storage of appropriated State water in an aquifer, the
    4-7  commission shall consider whether the storage of State water in the
    4-8  aquifer designed to receive it will cause any alteration of the
    4-9  physical, chemical, or biological quality of native groundwater
   4-10  that would make subsequently water produced from the formation
   4-11  harmful, detrimental or injurious, (a)  to humans, animal life,
   4-12  vegetation, or property, or (b)  to public health, safety or
   4-13  welfare; or that impairs the usefulness for public enjoyment of the
   4-14  water to be produced from the formation for any lawful and
   4-15  reasonable purpose for which native quality groundwater in the
   4-16  formation could have been used by providing no more than the same
   4-17  degree of treatment.
   4-18        (vii)  As part of the application process to appropriate
   4-19  State water, or amend an existing appropriation, to authorize the
   4-20  underground storage of appropriated State surface water in an
   4-21  aquifer, said application shall be evaluated as a Class V Well
   4-22  permit application also; provided, however, that such consideration
   4-23  shall be consolidated into the water rights permitting process and
   4-24  that no separate hearing or notice shall be required for the Class
   4-25  V Injection Well authorization.
    5-1        (vii)  In addition to the notice requirements of Chapter 11
    5-2  of this Code, any person desiring to store or recharge State water
    5-3  in or an "Underground Water Reservoir" as that term is defined in
    5-4  Chapter 52 of this Code, pursuant to this Act shall provide copies
    5-5  of any required Notice to any Underground Water Conservation
    5-6  District with jurisdiction over said "underground water reservoir."
    5-7        SECTION 3.  Applicability of the Act.  This Act applies to an
    5-8  application filed on or after the Effective Date of this Act for a
    5-9  permit or an amendment to a permit to appropriate State water,
   5-10  which contemplates the recharge or underground storage of State
   5-11  water in an aquifer other than the portion of the Edwards Aquifer
   5-12  in Kinney, Uvalde, Medina, Bexar, Comal and Hays Counties.  This
   5-13  Act has no effect on any existing permit issued by the Commission,
   5-14  or any application for a permit or a amendment to a permit which
   5-15  contemplates the recharge or underground storage of State water
   5-16  that was determined to be administratively complete by the
   5-17  Commission on or before the Effective Date of this Act.
   5-18        SECTION 4.  Declaration of an Emergency.  The importance of
   5-19  this legislation and the crowded condition of the calendars in both
   5-20  houses create an emergency and an imperative public necessity that
   5-21  the constitutional rule requiring bills to be read on several days
   5-22  in each house be suspended, and this rule is hereby suspended, and
   5-23  that this Act take effect and be in force from and after its
   5-24  passage, and it is so enacted.