This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
78R13549 QS-F
By: Puente H.B. No. 3586
Substitute the following for H.B. No. 3586:
By: Geren C.S.H.B. No. 3586
A BILL TO BE ENTITLED
AN ACT
relating to powers and duties of the Edwards Aquifer Authority to
manage and protect the Edwards Aquifer, the board of directors of
the Edwards Aquifer Authority, and revenue bonding authority.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.01, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.01. FINDINGS AND DECLARATION OF POLICY. The
legislature finds that the Edwards Aquifer and its contributory and
recharge zones are [is] a unique and complex hydrogeologic
[hydrological] system, with diverse economic and social interests
dependent on the aquifer for water supply. In keeping with that
finding, the Edwards Aquifer and its contributory and recharge
zones are [is] declared to be a distinctive natural resource in this
state, a unique aquifer, and not an underground stream. To sustain
these diverse interests and that natural resource, a special
regional management district is required for the effective control
of the resource and activities that may jeopardize it in order to
protect the water quality of the aquifer, terrestrial and aquatic
life, [domestic and] municipal, industrial, irrigation, and
domestic water supplies, the operation of existing economic
activities [industries], and the economic development of the state.
Use of water in the authority [district] for beneficial purposes
requires that all reasonable measures be taken to conserve
groundwater withdrawn from the Edwards Aquifer and protect the
quality of groundwater in the Edwards Aquifer [be conservative in
water use].
SECTION 2. Section 1.03, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by adding
Subdivision (28) to read as follows:
(28) "Recharge facility" means a dam, reservoir,
treatment facility, transmission facility, or other recharge
project, and associated facilities, structures, or works.
SECTION 3. Section 1.07, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.07. OWNERSHIP OF UNDERGROUND WATER. The ownership
and rights of the owner of the land and the owner's lessees and
assigns, including holders of recorded liens or other security
interests in the land, in underground water and the contract rights
of any person who purchases water for the provision of potable water
to the public or for the resale of potable water to the public for
any use are recognized. However, action taken pursuant to this Act
may not be construed as depriving or divesting the owner or the
owner's lessees and assigns, including holders of recorded liens or
other security interests in the land, of these ownership rights or
as impairing the contract rights of any person who purchases water
for the provision of potable water to the public or for the resale
of potable water to the public for any use, subject to the rules
adopted by the authority or a district exercising the powers
provided by Chapter 36 [52], Water Code. The legislature intends
that just compensation be paid if implementation of this article
causes a taking of private property or the impairment of a contract
in contravention of the Texas or federal constitution.
SECTION 4. Section 1.08(a), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(a) The authority has all of the powers, rights, and
privileges necessary to manage, conserve, preserve, and protect the
aquifer and to increase the recharge of, and prevent the waste or
pollution of water in, the aquifer. The authority has all of the
rights, powers, privileges, authority, functions, and duties
provided by the general law of this state, including Chapters 36,
49, and [50,] 51, [and 52,] Water Code, applicable to an authority
created under Article XVI, Section 59, of the Texas Constitution.
This article prevails over any provision of general law that is in
conflict or inconsistent with this article regarding the area of
the authority's jurisdiction.
SECTION 5. Chapter 626, Acts of the 73rd Legislature,
Regular Session, 1993, is amended by adding Section 1.081 to read as
follows:
Sec. 1.081. WATER QUALITY. (a) The authority may adopt and
enforce rules to protect and preserve the quality of water in the
aquifer, including rules to prevent the pollution of the aquifer.
(b) The authority shall adopt rules regarding the control of
fires in the recharge zone in consultation with fire departments
and fire marshals with jurisdiction over the recharge zone in order
to protect the water quality of the aquifer.
SECTION 6. Section 1.09, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by adding Subsection
(i) to read as follows:
(i) To be eligible to be elected or appointed as a voting
member of the board, a person must have resided continuously in the
single-member election district from which the person seeks to be
elected or appointed for six months immediately preceding the
following date:
(1) for a candidate for election, the 60th day before
the general election date; or
(2) for a candidate for appointment, the date the
appointment is made.
SECTION 7. Section 1.11, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsection (f) and adding Subsection (i) 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.]
(i) The authority by rule shall determine the extent to
which permit holders may use programs to reduce or eliminate fees or
taxes under Chapters 311 and 312, Tax Code.
SECTION 8. Section 1.14, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsections (b)-(f) and (h) and adding Subsections (f-1) and (f-2)
to read as follows:
(b) Except as provided by Subsections (d), (f), and (h) of
this section and Section 1.26 of this article, beginning January 1,
2008 [for the period ending December 31, 2007], the amount of
permitted withdrawals from the aquifer under regular permits may
not exceed 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, beginning January 1,
2010 [for the period beginning January 1, 2008], the amount of
permitted withdrawals from the aquifer under regular permits may
not exceed 400,000 acre-feet of water for each calendar year.
(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, the authority determines that
the amount of water available for permitting under Subsection (b)
or (c) 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) or (c) of this section. Beginning September 1, 2006,
and every four years thereafter, the authority shall determine
whether the amount of water available for permitting under
Subsection (b) or (c) of this section should be changed. If the
goals of Subsection (a) have not all been met, the authority shall
by March 1 of the succeeding year implement new requirements to
ensure compliance with Subsection (a). [may increase the maximum
amount of withdrawals provided by this section and set a different
maximum amount of withdrawals.]
(e) The authority may [not] allow withdrawals from the
aquifer through wells drilled after June 1, 1993, only if the
withdrawal is made:
(1) under the transfer of a regular, term, emergency,
monitoring, or recharge recovery permit;
(2) under a transfer of interim authorization; or
(3) from an exempt well [except additional water as
provided by Subsection (d) and then on an interruptible basis].
(f) The authority shall authorize withdrawals under initial
regular permits on an uninterruptible basis as follows:
(1) for the San Antonio pool, if [If] the level of the
aquifer is equal to or greater than 650 feet above mean sea level as
measured at Well J-17; and
(2) for the Uvalde pool, if [, the authority may
authorize withdrawal 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 may authorize withdrawal from the Uvalde pool, on an
uninterruptible basis, of permitted amounts].
(f-1) Under Section 1.26 of this article the authority may
interrupt withdrawals under initial regular permits as follows:
(1) for the San Antonio pool, if the level of the
aquifer is less than 650 feet above mean sea level as measured at
Well J-17; and
(2) for the Uvalde pool, if the level of the aquifer is
less than 845 feet at Well J-27.
(f-2) Under 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 under Subsection (h) 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.
(h) By [To accomplish the purposes of this article, by] June
1, 2005 [1994], under Section 1.26 of this article 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) 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 9. Section 1.15(b), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(b) Except as provided by Sections 1.17, [and] 1.33, and
1.331 of this article, a person may not withdraw water from the
aquifer or begin construction of a well or other works designed for
the withdrawal of water from the aquifer without obtaining a permit
from the authority.
SECTION 10. Section 1.16(e), 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 under
Sections 1.14(b) or (d), 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.
(e-1) If the total amount of water determined to have been
beneficially used without waste under Subsection (e) of this
section [this subsection] exceeds 450,000 acre-feet of water for
each calendar year [the amount of water available for permitting],
the authority shall proportionately adjust the amount of water
authorized for withdrawal under regular [the] permits
[proportionately] to meet 450,000 acre-feet of water for each
calendar year [the amount available for permitting].
(e-2) Except as provided by Section 1.21(c) of this article,
after the authority makes a proportional adjustment under
Subsection (e-1) of this section, the authority shall restore the
amount of water authorized for withdrawal under a regular permit to
the following minimum 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.
SECTION 11. The heading of Section 1.21, Chapter 626, Acts
of the 73rd Legislature, Regular Session, 1993, is amended to read
as follows:
Sec. 1.21. [PERMIT] RETIREMENT OF REGULAR PERMITS.
SECTION 12. Section 1.21, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsection (c) and adding Subsection (d) to read as follows:
(c) If, before [on or after] January 1, 2008, the aggregate
[overall] volume of water authorized to be withdrawn from the
aquifer under regular permits is greater than 450,000 [400,000]
acre-feet a year or greater than the adjusted amount determined
under Subsection (d) of Section 1.14 of this article, not later than
October 1, 2007, the board shall issue an order to be effective on
January 1, 2008, proportionately adjusting the [maximum]
authorized withdrawal amount of each regular permit [shall be
immediately reduced by an equal percentage] as is necessary to
reduce aggregate authorized withdrawals under regular permits
[overall maximum demand] to 450,000 [400,000] acre-feet a year or
the adjusted amount, as appropriate[. 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].
(d) If, before January 1, 2010, the aggregate volume of
water authorized to be withdrawn from the aquifer under regular
permits is greater than 400,000 acre-feet a year or greater than the
adjusted amount determined under Section 1.14(d) of this article,
the board, not later than October 1, 2009, shall issue an order to
be effective January 1, 2010, proportionally adjusting the
authorized withdrawal amount of each regular permit as is necessary
to reduce aggregate authorized withdrawals under regular permits to
400,000 acre-feet a year or the adjusted amount, as appropriate.
SECTION 13. Section 1.26, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 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; and
(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 made under regular permits are reduced to 350,000
acre-feet a year if the following conditions are met:
(1) for the San Antonio pool, the level of the aquifer
must be 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 must
be less than 842 feet above mean sea level as measured at Well J-27.
(c) The board shall adopt the demand management and critical
period plan required under this section not later than September 1,
2004.
(d) Subsection (b) of this section and this subsection
expire January 1, 2008.
SECTION 14. Section 1.28, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsection (b) and adding Subsection (b-1) to read as follows:
(b) The authority may issue revenue bonds to finance:
(1) the purchase of land;
(2) [or] the purchase, construction, or installation
of facilities or equipment, including recharge dams and associated
facilities, structures, or works; or
(3) the retirement of permits or applications for
initial regular permits under Section 1.21 of this article by
compensating permit holders or applicants as provided by Section
1.21(c) of this article.
(b-1) The authority may not allow for any person to
construct, acquire, or own facilities for transporting groundwater
out of Uvalde County or Medina County.
SECTION 15. Section 1.29, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsections (a)-(e), (h), and (i) and adding Subsection (a-1) to
read as follows:
(a) The cost of [reducing withdrawals or] permit
retirements under Section 1.21(c) of this article for the period
beginning January 1, 2008, must be borne[:
[(1)] solely by users of the aquifer.
(a-1) The cost of permit retirements under Section 1.21(d)
of this article for the period beginning January 1, 2010, must be
borne equally by holders of initial regular permits and downstream
surface water rights holders. [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, bill, and collect 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 under Section 1.28 of this article. Each water
district governed by Chapter 36 [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, bill, and collect a [an
equitable] special fee assessed equally on a per acre-foot basis
[based] on initial regular permits without regard to use [permitted
aquifer water rights] to be used only to finance the retirement of
initial regular permits from 450,000 [rights necessary] to 400,000
acre-feet a year, or the adjusted amount determined under Section
1.14(d) of this article [meet the goals provided by Section 1.21 of
this article]. Fees assessed on holders of initial regular permits
by the [The] authority under this subsection may not exceed
one-half of the cost of permit retirements from 450,000 to 400,000
acre-feet a year, or the adjusted amount, for the period beginning
January 1, 2010 [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, and the authority shall
bill and collect, equitable special fees on all downstream surface
water rights holders in the Guadalupe River Basin to be used solely
to finance the retirement of initial regular permits from 450,000
to 400,000 acre-feet a year, or the adjusted amount determined
under Section 1.14(d) of this article [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 (d) 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, 2010 [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 surface 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.
(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. This subsection does not apply to the assessment of the
equitable special fee to retire initial regular permits under
Subsection (b) of this section.
(h) Special fees collected under Subsection (c) or (d) of
this section may not be used to finance recharge facilities [a
surface water supply reservoir project].
(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 16. Section 1.33(a), Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
(a) A well [that produces 25,000 gallons of water a day or
less] for domestic or livestock use is exempt from metering
requirements if the well:
(1) was installed and in operation not later than
September 1, 2003, and is capable of producing a maximum of 25,000
gallons of water a day; or
(2) is capable of producing a maximum of 10,000
gallons of water a day.
SECTION 17. Article 1, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by adding Section
1.331 to read as follows:
Sec. 1.331. EXEMPTION FOR FEDERAL FACILITIES; TRANSFER OF
OWNERSHIP OF APPLICATION. (a) Federal facilities, which are
immune from regulation under the doctrine of sovereign immunity,
are exempt from the requirements of this article and any rules
adopted under it.
(b) A person may obtain an initial regular permit based on
an application voluntarily filed by a federal facility if, before
September 1, 2003, the authority approves the transfer of ownership
of the application for an initial regular permit from the federal
facility to the person seeking the permit.
SECTION 18. Section 1.34, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended by amending
Subsections (a) and (c) and adding Subsection (d) to read as
follows:
(a) Water withdrawn from the aquifer may [must] be used only
within the boundaries of:
(1) the authority; or
(2) the geographic area subject to a certificate of
convenience and necessity that extends within and beyond the
boundaries of the authority, provided that the majority of that
geographic area is within the boundaries of the authority and the
certificate is held by an original regular permit holder or a
wholesale customer of that permit holder.
(c) A permit holder may transfer a regular permit [lease
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].
(d) An irrigation permit may be transferred to any owner,
point of withdrawal, place of use, or purpose of use, except that
50 percent of the groundwater withdrawal amount initially permitted
may be used only for irrigation.
SECTION 19. Section 1.43, Chapter 626, Acts of the 73rd
Legislature, Regular Session, 1993, is amended to read as follows:
Sec. 1.43. CREATION OF UNDERGROUND WATER CONSERVATION
DISTRICT. An underground water conservation district may be
created in any county affected by this article as provided by
Subchapter B, Chapter 36 [52], Water Code.
SECTION 20. Section 1.45(a), 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 21. Section 1.094(c), Sections 1.21(a) and (b), and
Section 1.34(b), Chapter 626, Acts of the 73rd Legislature, Regular
Session, 1993, are repealed.
SECTION 22. Regardless of the original deadline for filing
declarations of historical use, the Edwards Aquifer Authority shall
process all declarations filed before 4:30 p.m. on February 16,
1997, as if the declarations were timely filed.
SECTION 23. Transfers that are effective before the
effective date of this Act, that are approved by the Edwards Aquifer
Authority, that have not been rescinded, and that are not subject to
pending litigation are hereby validated.
SECTION 24. The change in law made by this Act to Section
1.34, Chapter 626, Acts of the 73rd Legislature, Regular Session,
1993, applies only to a transfer effective on or after the effective
date of this Act. The change in law made by this Act to Section
1.34, Chapter 626, Acts of the 73rd Legislature, Regular Session,
1993, does not affect the validity of a transfer effective before
the effective date of this Act. A transfer effective before the
effective date of this Act is governed by the provisions of Chapter
626, Acts of the 73rd Legislature, Regular Session, 1993, and the
rules of the Edwards Aquifer Authority in effect at the time the
transfer became effective.
SECTION 25. 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.