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By: Puente H.B. No. 3339
A BILL TO BE ENTITLED
AN ACT
relating to powers and duties of the Edwards Aquifer Authority to
manage the Edwards Aquifer including groundwater withdrawals,
permitting, demand management and transfers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.03, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993 and Chapter 966, Acts of the
77th Legislature, Regular Session, 2001, is amended by adding
Subsection (28) to read as follows:
(28) "Water supply facility" means a dam, reservoir,
treatment facility, transmission facility, or recharge project.
SECTION 2. Section 1.11(f), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993 and Chapter 966, Acts of the
77th Legislature, Regular Session, 2001, is amended to read as
follows:
(f) The authority may contract with a person who uses water
from the aquifer for the authority or that person to own, finance,
design, construct, operate, or [own, finance, and] maintain water
supply facilities. [Management fees or special fees may not be used
for purchasing or operating these facilities. For the purpose of
this subsection, "water supply facility" includes a dam, reservoir,
treatment facility, transmission facility, or recharge project.]
SECTION 3. Section 1.14(b)-(h), Chapter 626, Acts of the
73rd Legislature, Regular Session, 1993, is amended to read as
follows:
(b) Except as provided by Subsections (c) [(d)], (e) [(f)],
and (g) [(h)] of this section and Section 1.26 of this article,
beginning January 1, 2005 [for the period ending December 31,
2007], the amount of permitted withdrawals from the aquifer may not
exceed 550,000 [450,000] acre-feet of water for each calendar year.
[(c) Except as provided by Subsections (d), (f), and (h) of
this section and Section 1.26 of this article, for the period
beginning January 1, 2008, the amount of permitted withdrawals from
the aquifer may not exceed 400,000 acre-feet of water for each
calendar year.]
(c) [(d)] If, through studies and implementation of water
management strategies, including conservation, springflow
augmentation, diversions downstream of the springs, reuse,
supplemental recharge, conjunctive management of surface and
subsurface water, and drought management plans, programs,
practices, procedures, or methods, of any kind, the authority
determines that the amount of water available for permitting under
Subsection (b) of this section should be changed to more
effectively accomplish the purposes of this article [additional
supplies are available from the aquifer], the authority, in
consultation with appropriate state and federal agencies, shall
[may] review and, by order, change the amount of water available for
permitting under Subsection (b) of this section [may increase the
maximum amount of withdrawals provided by this section and set a
different maximum amount of withdrawals]. Beginning September 1,
2006, and every four years thereafter, the Authority shall
determine whether the amount of water available for permitting
under Subsection (b) of this section should be changed pursuant to
this subsection. If the requirements of Subsection (a) have not all
been met, the authority shall by March 1 of the succeeding year
implement new requirements to assure compliance with Subsection
(a).
(d) [(e)] Unless made pursuant to the transfer of a regular,
term, emergency, monitoring, or recharge recovery permit, the
transfer of interim authorization, or an exempt well, the [The]
authority may not allow withdrawals from the aquifer through wells
drilled after June 1, 1993[, except additional water as provided by
Subsection (d) and then on an interruptible basis].
(e) [(f)] If the level of the aquifer is equal to or greater
than 650 feet above mean sea level as measured at Well J-17, the
authority shall [may] authorize withdrawals pursuant to initial
regular permits [withdrawals] from the San Antonio pool, on an
uninterruptible basis[, of permitted amounts]. If the level of the
aquifer is equal to or greater than 845 feet at Well J-27, the
authority shall [may] authorize withdrawals pursuant to initial
regular permits [withdrawals] from the Uvalde pool, on an
uninterruptible basis[, of permitted amounts]. If the level of the
aquifer is less than 650 feet above mean sea level as measured at
Well J-17, the authority may, pursuant to Section 1.26 of this
article, interrupt withdrawals pursuant to initial regular permits
from the San Antonio pool. If the level of the aquifer is less than
845 feet at well J-27, the authority may, pursuant to Section 1.26
of this article, interrupt withdrawals pursuant to initial regular
permits from the Uvalde pool. Pursuant to Section 1.26 of this
article, the [The] authority shall require interruptions in [limit
the additional] withdrawals, or require implementation of
programs, practices, procedures, or methods, pursuant to
Subsection (g) of this section, to protect [to ensure that]
springflows at the Comal Springs and San Marcos Springs [are not
affected] during demand management and critical period management
[drought] conditions.
(f) [(g)] The authority by rule may define other pools
within the aquifer, in accordance with hydrogeologic research, and
may establish index wells for any pool to monitor the level of the
aquifer to aid the regulation of withdrawals from the pools.
(g) [(h)] By [To accomplish the purposes of this article,
by] June 1, 2005 [1994], the authority[, through a program,] shall
implement and enforce water management programs, practices,
procedures, or [and] methods to ensure that, not later than
December 31, 2012, the continuous minimum springflows of the Comal
Springs and the San Marcos Springs are maintained to protect
endangered and threatened species to the extent required by federal
law. The authority from time to time as appropriate may revise the
programs, practices, procedures, or [and] methods. To meet this
requirement, the authority shall require:
(1) pursuant to Section 1.26 of this article, phased
reductions in the amount of water that may be used or withdrawn by
existing users or categories of other users; or
(2) implementation of alternative management
programs, practices, procedures or [and] methods.
SECTION 4. Section 1.16(e)-(h), Chapter 626, Acts of the
73rd Legislature, Regular Session, 1993, is amended to read as
follows:
(e) To the extent water is available for permitting, the
board shall issue an [the] existing user a regular permit for
withdrawal of an amount of water equal to the user's maximum
beneficial use of water without waste during any one calendar year
of the historical period. If an existing [a water] user does not
have historical use for a full year, then the authority shall set
the user's maximum beneficial use of water without waste as the
[issue a permit for withdrawal based on an] amount of water that
would normally be beneficially used without waste for the intended
purpose for a calendar year.
(f) If the total amount of water determined to have been
beneficially used without waste under Subsection (e) of this
section [this subsection] exceeds the amount of water available for
permitting under Subsection (b) of Section 1.14 of this article,
the authority shall proportionately adjust the amount of water
authorized for withdrawal under regular [the] permits
[proportionately] to meet the amount available for permitting.
Except as provided by Subsection (b) of Section 1.21 of this
article, no existing user may be proportionately adjusted below the
following amounts:
(1) for an [An] existing irrigation user, [shall
receive a permit for not less than] two acre-feet a year for each
acre of land the user actually irrigated in any one calendar year
during the historical period; or[.]
(2) for an [An] existing user who has operated a well
for three or more years during the historical period, [shall
receive a permit for at least] the average amount of water withdrawn
annually during the historical period.
(g) Except as provided by Subsection (b) of Section 1.21 of
this article, in the event a proportional adjustment results in an
amount of water authorized for withdrawal under a regular permit
that is less than an applicable minimum regular permit amount
specified in Subsection (f) of this section, then the Authority
shall restore the amount to be equal to the minimum regular permit
amount.
(h) [(f)] The board by rule shall consider the equitable
treatment of a person whose historic use has been affected by a
requirement of or participation in a federal program.
(i) [(g)] The authority shall issue an initial regular
permit without a term, and an initial regular permit remains in
effect until the permit is abandoned, cancelled, or retired.
(j) [(h)] The board shall notify each permit holder that the
permit is subject to limitations as provided by this article.
SECTION 5. Section 1.21, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
SECTION 1.21 [PERMIT] RETIREMENT OF PERMITS OR
APPLICATIONS. (a) The authority shall prepare and implement a plan
for reducing, by January 1, 2005 [2008], the maximum annual volume
of water authorized to be withdrawn from the aquifer under regular
permits to 550,000 [400,000] acre-feet a year or the adjusted
amount determined under Subsection (c) [(d)] of Section 1.14 of
this article. The plan must be enforceable and must include
measures to retire all or part of regular permits or applications
for initial regular permits, or other water management measures
designed to achieve the required reductions.
[(b) The plan must be enforceable and must include water
conservation and reuse measures, measures to retire water rights,
and other water management measures designed to achieve the
reduction levels or appropriate management of the resource.]
(b) [c] If, on or after January 1, 2005 [2008], the overall
volume of water authorized to be withdrawn from the aquifer under
regular permits is greater than 550,000 [400,000] acre-feet a year
or greater than the adjusted amount determined under Subsection (c)
[(d)] of Section 1.14 of this article, the Authority shall
immediately proportionately adjust the maximum authorized
withdrawal amount of each regular permit as determined under
Subsection (e) of Section 1.16 of this article [shall be
immediately reduced by an equal percentage] as is necessary to
reduce aggregate [overall] maximum authorized withdrawals under
regular permits [demand] to 550,000 [400,000] acre-feet a year or
the adjusted amount, as appropriate. In the event a proportional
adjustment results in an amount of water authorized for withdrawal
under a regular permit that is less than an applicable minimum
regular permit amount specified in Subsection (f) of Section 1.16
of this article, then the Authority shall, in accordance with
Section 1.29 of this article, compensate the permittee for the
amount of the authorized withdrawal below the minimum regular
permit amount that was proportionately adjusted in order to meet
550,000 acre-feet a year, or as that amount may be adjusted under
Subsection (c) of Section 1.14 of this article. The amount reduced
may be restored, in whole or in part, as other appropriate measures
are implemented that maintain overall demand at or below the
appropriate amount.
SECTION 6. Section 1.26, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
SECTION 1.26 DEMAND MANAGEMENT AND CRITICAL PERIOD
MANAGEMENT PLAN. (a) The authority shall prepare and coordinate
implementation of a plan for demand management and critical period
management [on or before September 1, 1995]. The mechanisms must:
(1) distinguish between discretionary use and
nondiscretionary use;
(2) require reductions of all discretionary use to the
maximum extent feasible;
(3) require utility pricing, to the maximum extent
feasible, to limit discretionary use by the customers of water
utilities; and
(4) require reduction of nondiscretionary use by
permitted or contractual users, to the extent further reductions
are necessary, in the reverse order of the following water use
preferences:
(A) municipal, domestic, and livestock;
(B) industrial and crop irrigation;
(C) residential landscape irrigation;
(D) recreational and pleasure; and
(E) other uses that are authorized by law.
(b) The board shall adopt measures to ensure that authorized
withdrawals from non-exempt wells are reduced to 350,000 acre-feet,
annualized, if the following conditions are met:
(1) for the San Antonio Pool, the level of the aquifer
is less than 627 feet above mean sea level as measured at Well J-17;
or
(2) for the Uvalde Pool, the level of the aquifer is
less than 842 feet above mean sea level as measured at Well J-27.
(c) The demand management and critical period plan required
to be prepared and implemented by this section shall be adopted by
the board no later than September 1, 2004. In the event this
deadline is not met, irrespective of whether a demand management or
critical period is in effect, the board shall issue an order
temporarily interrupting 20 percent of the amount of water
authorized for withdrawal under each regular permit until the board
has adopted the plan.
SECTION 7. Section 1.29(a) and (c)-(i), Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993 and Chapter 966,
Acts of the 77th Legislature, Regular Session, 2001, is amended to
read as follows:
(a) The cost of [reducing withdrawals or] permit or
application retirements under Section 1.21 of this article or the
adjusted amount under Subsection (c) of Section 1.14 of this
article for the period ending December 31, 2004, must be borne
solely by users of the aquifer and shall be paid for by aquifer
management fees assessed under Subsections (b) and (c) of this
section.[:]
[(1) solely by users of the aquifer for reducing
withdrawals from the level on the effective date of this article to
450,000 acre-feet a year, or the adjusted amount determined under
Subsection (d) of Section 1.14 of this article for the period ending
December 31, 2007; and
(2) equally by aquifer users and downstream water
rights holders for permit retirements from 450,000 acre-feet a
year, or the adjusted amount determined under Subsection (d) of
Section 1.14 of this article for the period ending December 31,
2007, to 400,000 acre-feet a year, or the adjusted amount
determined under Subsection (d) of Section 1.14 of this article,
for the period beginning January 1, 2008.]
(b) The authority shall assess equitable aquifer management
fees based on aquifer use under the water management plan to finance
its administrative expenses and programs authorized under this
article. Aquifer management fees may additionally be used for the
repayment of revenue bonds issued by the authority pursuant to
Section 1.28 of this article. Each water district governed by
Chapter 52, Water Code, that is within the authority's boundaries
may contract with the authority to pay expenses of the authority
through taxes in lieu of user fees to be paid by water users in the
district. The contract must provide that the district will pay an
amount equal to the amount that the water users in the district
would have paid through user fees. The authority may not collect a
total amount of fees and taxes that is more than is reasonably
necessary for the administration of the authority.
[(c) The authority shall also assess an equitable special
fee based on permitted aquifer water rights to be used only to
finance the retirement of rights necessary to meet the goals
provided by Section 1.21 of this article. The authority shall set
the equitable special fees on permitted aquifer users at a level
sufficient to match the funds raised from the assessment of
equitable special fees on downstream water rights holders.
(d) The commission shall assess equitable special fees on
all downstream water rights holders in the Guadalupe River Basin to
be used solely to finance the retirement of aquifer rights
necessary to meet the goals provided by Section 1.21 of this
article. Fees assessed under this subsection may not exceed
one-half of the cost of permit retirements from 450,000 acre-feet a
year, or the adjusted amount determined under Subsection (c) of
Section 1.14 of this article, for the period ending December 31,
2007, to 400,000 acre-feet a year for the period beginning January
1, 2008. The authority shall report to the commission the estimated
costs of the retirements. The amount of fees assessed under this
subsection shall be determined in accordance with rules adopted by
the commission for fees under the South Texas watermaster program
with adjustments as necessary to ensure that fees are equitable
between users, including priority and nonpriority hydroelectric
users. A downstream water rights holder shall pay fees assessed
under this subsection to the authority. A fee may not be assessed
by the commission under this subsection on contractual deliveries
of water stored in Canyon Lake that may be diverted downstream of
the San Marcos Springs or Canyon Dam. A person or entity making a
contractual sale of water stored upstream of Canyon Dam may not
establish a systemwide rate that requires purchasers of
upstream-stored water to pay the special fee assessed under this
subsection.]
(c) [(e)] In developing an equitable fee structure under
this section, the authority may establish different fee rates on a
per acre-foot basis for different types of use. The fees must be
equitable between types of uses. The fee rate for agricultural use
shall be based on the volume of water withdrawn and may not be more
than $2 per acre-foot. The authority shall assess the fees on the
amount of water a permit holder is authorized to withdraw under the
permit.
(d) [(f)] The authority shall impose a permit application
fee not to exceed $25.
(e) [(g)] The authority may impose a registration
application fee not to exceed $10.
[(h) Special fees collected under Subsection (c) or (d) of
this section may not be used to finance a surface water supply
reservoir project.]
(f) [(i)] The authority shall provide money as necessary,
but not to exceed five percent of the money collected under
Subsection (b) [(d)] of this section, to finance the South Central
Texas Water Advisory Committee's administrative expenses and
programs authorized under this article.
SECTION 8. Sections 1.34(a), (b) and (c), Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993, are amended to read
as follows:
(a) Water withdrawn from the aquifer may only [must] by used
within the boundaries of:
(1) the authority; or
(2) the geographic area subject to a Certificate of
Convenience and Necessity ("CCN") that extends within and beyond
the boundaries of the authority, provided that the majority of the
CCN lies within the boundaries of the authority and the CCN is held
by an original regular permit holder or a wholesale customer
thereof.
(b) The authority by rule shall [may] establish a procedure
by which a person who has achieved [installs] water conservation
[equipment] may transfer [sell] the [water] conserved water.
(c) A permit holder may transfer a regular [lease] permit,
[permitted water rights, but a holder of a permit for irrigation use
may not lease more than 50 percent of the irrigation rights
initially permitted. The user's remaining irrigation water rights
must be used in accordance with the original permit and must pass
with transfer of the irrigated land.] however, with respect to a
regular permit originally issued for irrigation use, up to 50
percent of such a permit may be transferred without restrictions as
to the place or purpose of use, while the remaining 50 percent may
only be transferred:
(1) to another place of use within the county in which
the place of use under the original permit is located, for
irrigation use;
(2) to another place of use within the county in which
the place of use under the original permit is located, for any
purpose of use, but only in the event that all or a portion of the
place of use under the original permit is developed such that it is
no longer capable of being used for irrigation, and only for that
portion of the permit attributable to the non-irrigable land; or
(3) in a manner consistent with rules adopted by the
authority for the transfer of conserved water pursuant to
Subsection (b) of this section.
SECTION 9. Section 1.45, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(a) The authority may own, finance, design, construct,
[build or] operate, and maintain recharge dams, and associated
facilities, structures, or works, in the contributing or recharge
area of the aquifer if the recharge is made to increase the yield of
the aquifer and the recharge project does not impair senior water
rights or vested riparian rights.
SECTION 10. EFFECTIVE DATE. This Act takes effect
immediately if it receives a vote of two-thirds of all the members
elected to each house, as provided by Section 39, Article III, Texas
Constitution. If this Act does not receive the vote necessary for
immediate effect, this Act takes effect September 1, 2003.