C.S.H.B. 2950 78(R)    BILL ANALYSIS


C.S.H.B. 2950
By: Hope
Natural Resources
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, Chapter 36 of the Texas Water Code allows groundwater
conservation districts to protect existing and historic users of the
aquifer. Section 36.113(e) allows a district to impose more restrictive
permit conditions on new permit applications and increased use by historic
users under certain conditions, while Section 36.116(b) allows districts
to preserve historic use before the effective date of any rules limiting
groundwater production. Impliedly, districts must determine who the
existing and historic users are and how much water they are using or have
used to implement these subsections. 

This bill would provide clarification by providing express language
stating that a groundwater conservation district may require the existing
or historic users to prove the maximum annual amount of groundwater that
the user applied to a beneficial use over a reasonable time period
established by the district.  When implementing the specific time periods,
a district must adhere to certain guidelines in issuing permits to the
different classifications of groundwater users.  The flexibility in the
time period authorized by this bill would allow a district to ensure,
based on local circumstances, that the period is of sufficient duration to
not exclude those who may not have used water simply because of crop
rotation, changes in rainfall, or the like, while keeping it sufficiently
short to protect those who are currently relying on the groundwater for
economic purposes like irrigation or municipal use from being impacted
from forced reductions for the windfall of those who abandoned or are not
otherwise currently utilizing the aquifer.  Presently, a district could
utilize any time period since no prescription is given under Chapter 36.  

This bill would also allow certain districts to establish defined historic
use periods of groundwater use.  The districts which meet the requirements
created by the bill must satisfy certain provisions concerning the
calculation of a user's amount of beneficial use as well as follow a
specific order when limiting or reducing the amount of permitted
production of groundwater through proportionate reductions. 


RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

SECTION 1. Amends Section 36.113, Water Code, by adding Subsection (h) by
enabling groundwater conservation districts to require an existing or
historic user to prove their maximum annual amount of groundwater that the
user applied to a beneficial use during a reasonable period established by
the district that ends on or before the date on which the district
publishes notice or adopts rules protecting existing or historic use under
Section 36.113(e) or Section 36.116(b). 

Amends Section 36.113, Water Code, by adding Subsection (i) to require
districts to issue a permit for existing or historic use, for a user who
produced groundwater for only part of the final year of the period
established under Subsection (h), based on an extrapolation of the user's
beneficial use of groundwater to the amount that would have been used in a
full calendar year for the same beneficial use.  Provides that a district
shall issue a permit for use based on agricultural irrigation, based on
the maximum annual amount of groundwater actually used during the time
period  established under Subsection (h) of Section 36.113 or the acreage
irrigated during the period established under Subsection (h) of Section
36.113.  Provides that a district shall issue a permit for an electric
utility, a power generation company, or retail electric provider as
defined by Section 31.002, Utilities Code, based on the amount actually
used as calculated under and for the period established under Subsection
(h) or Subdivision (1) of Subsection (i) of Section 36.113; or an amount
necessary to annually provide sufficient groundwater for certain purposes
for use at certain power generation facilities using land or the right to
produce groundwater from land that was acquired by the electric utility,
power generation company, or retail electric provider before May 1, 2003
for certain purposes.   

Amends Section 36.113, Water Code, by adding Subsection (j) to provide
that an annual report of groundwater use previously submitted to a state
agency is admissible as evidence of existing or historic use under
Subsection (h) or (i) of Section 36.113. 

SECTION 2. Amends Subchapter D, Chapter 36, Water Code, by adding Section
36.1132 to institute defined historic use periods for certain groundwater
conservation districts.  Provides that Section 36.1132 only applies to a
groundwater conservation district which was created under Section 59,
Article XVI, Texas Constitution; is adjacent to a district created under
Chapter 626, Acts of the 73rd Legislature, Regular Session, 1993; has
within its boundaries a part of an aquifer that is regulated under Chapter
626, Acts of the 73rd Legislature, Regular Session, 1993; and is not
regulated under Chapter 626, Acts of the 73rd Legislature, Regular
Session, 1993. Provides that a district, in implementing Section 36.113(e)
or 36.116(b), and notwithstanding the periods described under Section
36.113(h),  shall require an existing or historic user to prove the
maximum amount of groundwater that the user applied to a beneficial use
during certain time periods.  Provides that a district,  in implementing
Subsection (b) of Section 36.1132, for a user who produced groundwater for
only part of the final year of the period established under Subsection
(b)(2), shall issue a permit for existing or historic use based on an
extrapolation of the user's beneficial use of groundwater to the amount
that would have been used in a full calendar year for the same beneficial
use.  Provides that a district, which limits or reduces total permitted
production within its boundaries in a manner consistent with its certified
groundwater district management plan, to limit or reduce the amount of
permitted production of groundwater through proportionate reductions that
apply equally among classes of users in a certain order, with all
limitations or reductions or reductions that can be made in one class
being made in that class before proceeding with limitations or reductions
in the next subsequent class. 
      
SECTION 3. Provides that the legislature finds that groundwater
conservation districts have existing statutory authority to protect
existing or historic uses under Section 36.113(e) and 36.116(b), Water
Code.  Provides that the legislature finds that it is important that
groundwater conservation districts, when implementing Sections 36.113(e)
and 36.116(b), Water Code, and in the conservation and management of
groundwater, adopt precise rules regarding existing or historic use of
groundwater, and that those rules include definite time periods during
which existing or historic use must be proven.  Provides that the
legislature finds that it will benefit the state and its citizens to set
express statutory guidelines that clarify the ability of groundwater
conservation districts to define and identify existing or historic use
periods.  Provides that the changes in law by this Act do not limit the
express or implied powers that groundwater conservation districts had
before the effective date of this Act to implement Sections 36.113(e) and
36.116(b), Water Code, using reasonable time periods during which existing
or historic use must be proven by a permit applicant or invalidate rules
lawfully adopted by a groundwater conservation district before the
effective date of this Act that use those time periods.      
 
SECTION 4. Effective date: Immediate or September 1, 2003. 


EFFECTIVE DATE

On passage, or if the Act does not receive the necessary vote, the Act
takes effect on September 1, 2003. 

 
COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 2950 adds new language to Subsection (h) of Section 36.113, Water
Code, to allow a groundwater conservation district to require existing and
historic users to prove the maximum annual amount of groundwater the user
applied to a beneficial use during a reasonable period established by the
district that meets certain time requirements.  

C.S.H.B. 2950 adds new language by adding Subsection (i) to Section
36.113, Water Code, to require a district to issue a permit for existing
and historic use based on an extrapolation of the user's beneficial use of
groundwater in an amount that would have been used in a full calendar year
when a user has produced water for only part of final year of period
established by a district under Subsection (h) of Section 36.113.  The
substitute also adds new language in Subsection (i) to require a district
to issue a permit, for use based on agricultural irrigation, for the
maximum annual amount of groundwater actually used during the period
established by a district under Subsection (h) or the acreage irrigated
during the period established by a district under Subsection (h).  The
substitute adds new language in Subsection (i) to require a district to
issue a permit to an electric utility, a power generation company, or
retail electric provider as defined by the Utilities Code based on the
amount actually used as calculated under and for the period established
under Subsection (h) or Subdivision (1) of Subsection (i) or an amount
necessary to annually provide sufficient groundwater for certain purposes
for use at certain power generations facilities that use land or the right
to produce groundwater from land that was acquired by the electric
utility, power generation company, or retail electric provider before May
1, 2003 for certain purposes.  

C.S.H.B. 2950 adds new language by adding Subsection (j) to Section
36.113, Water Code, to establish that certain information or reports
previously submitted to a state agency is admissible as evidence of
existing use or historic use under Subsection (h) or (i). 

C.S.H.B. 2950 adds new language by adding Section 36.1132 to the Water
Code to establish defined historic use periods for certain districts.  The
substitute adds new language to create provisions to define what
groundwater conservation districts must adhere to Section 36.1132.  The
language and provisions added by Section 36.1132 requires the district to
be adjacent to a district created under Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993; to contain within its boundaries a
part of an aquifer that is regulated under Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993; and is not regulated under Chapter
626, Acts of the 73rd Legislature, Regular Session, 1993. The substitute
also adds new language to mandate that a district, when implementing
Section 36.113(e) or 36.116(b), and notwithstanding the periods described
under Section 36.116(h), require an existing or historic user to prove the
maximum annual amount of groundwater that the user applied to beneficial
use for certain time periods.  The substitute adds new language to require
a district, in implementing Subsection (b) of Section 36.1132, for a user
who produced groundwater for only part of the final year of the period
established under Subsection (b)(2), to issue a permit for existing or
historic use based on an extrapolation of the user's beneficial use of
groundwater to the amount that would have been used in a full calendar
year for the same beneficial use.  The substitute adds new language to
require a district, which limits or reduces total permitted production
within its boundaries in a manner consistent with its certified
groundwater district management plan, to limit or reduce the amount of
permitted production of groundwater through proportionate reductions that
apply equally among classes of users in a certain order, with all
limitations or reductions or reductions that can be made in one class
being made in that class before proceeding with limitations or reductions
in the next subsequent class.    

C.S.H.B. 2950 adds new language to establish that the legislature makes
certain legislative findings. The substitute adds new language to provide
that the legislature finds that groundwater conservation districts have
existing statutory authority to protect existing or historic uses under
Section 36.113(e) and 36.116(b), Water Code.  The substitute adds new
language to state that the legislature finds that it is important that
groundwater conservation districts when implementing Sections 36.113(e)
and 36.116(b), Water Code, and in the conservation and management of
groundwater, adopt precise rules regarding existing or historic use of
groundwater, and that those rules include definite time periods during
which existing or historic use must be proven.  The substitute also adds
new language which establishes that the legislature finds that it will
benefit the state and its citizens to set express statutory guidelines
that clarify the ability of groundwater conservation districts to define
and  identify existing or historic use periods.  The substitute adds new
language to clarify that the changes in law by this Act do not limit the
express or implied powers that groundwater conservation districts had
before the effective date of this Act to implement Sections 36.113(e) and
36.116(b), Water Code, using reasonable time periods during which existing
or historic use must be proven by a permit applicant or invalidate rules
lawfully adopted by a groundwater conservation district before the
effective date of this Act that use those time periods.