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78R8254 MI-F
By: Averitt S.B. No. 1040
A BILL TO BE ENTITLED
AN ACT
relating to the repeal of the junior priority of a water right
authorizing a transfer of water from one river basin in this state
to another river basin in this state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. LEGISLATIVE FINDINGS AND DECLARATION OF POLICY.
(a) The legislature finds that by virtue of its passage of Senate
Bill No. 1 by the 75th Legislature, Regular Session, 1997, the
legislature created a regional and state water planning,
development, and management process designed to ensure that
entities throughout the state timely plan for and develop water
supplies necessary to meet existing and future water supply
demands. In part, Senate Bill No. 1 addressed permitting
requirements related to the transfer of state water from one river
basin to another.
(b) The legislature finds that in Senate Bill No. 1, Section
11.085, Water Code, was amended to specify a number of new
regulatory requirements associated with the permitting of
interbasin transfers of state water, including:
(1) requirements that an application for a permit for
an interbasin transfer include:
(A) information specifying the contract price of
water to be transferred;
(B) the cost of diverting, conveying, and
distributing the water proposed to be transferred; and
(C) the projected effect on user rates and fees
for each class of ratepayers to be served with the water;
(2) additional public notice and public meeting
requirements;
(3) additional criteria to be used by the state in
determining whether an application for an interbasin transfer of
state water should be granted, including:
(A) a requirement that the state balance the
needs of the basin of origin against the needs of the receiving
basin in regard to the water proposed to be transferred; and
(B) a requirement that the state consider:
(i) the needs of the basin of origin for the
next 50 years;
(ii) the availability of feasible and
practicable alternatives to the diversion;
(iii) the efforts of the receiving basin to
avoid waste and achieve water conservation;
(iv) the projected economic impact of the
transfer to the basin of origin and the receiving basin; and
(v) the projected impact of the proposed
transfer on existing water rights and the environment;
(4) the proposed mitigation or compensation, if any,
to the basin of origin by the applicant; and
(5) the continued need to use water authorized under
an existing water right that is proposed to be transferred.
(c) The legislature finds that interbasin transfer is a
critical tool for managing the current and future water resources
of the state and that the 2002 State Water Plan includes
approximately 216 interbasin transfers from 55 different unique
sources of water that were identified by local and regional
entities as the water supply strategy solutions to approximately
451 different local and regional water demands.
(d) The legislature finds that in addition, with respect to
the proposed interbasin transfer of water authorized under an
existing water right, Senate Bill No. 1 amended Section 11.085,
Water Code, to include the "junior rights provision," which
provides that any proposed transfer of all or part of an existing
water right would be junior in time priority to water rights granted
before the time the application for the interbasin transfer was
accepted for filing.
(e) The legislature finds that the junior rights provision
has effectively thwarted the ability of the state and local and
regional entities to allow existing water rights to be transferred
out of the basin of origin and put to a beneficial use and has
therefore harmed the ability of those entities to adequately plan
for, develop, and manage water resources in a manner that addresses
the state's future water needs.
(f) The legislature finds that the junior rights provision
has so effectively thwarted the ability of the state to authorize
interbasin transfers that no interbasin transfer has been
authorized for a water right that existed before September 1, 1997,
that does not fall within one of the limited exceptions under
Section 11.085(v) since before the enactment of that provision in
1997 and that, if retained in law, the junior rights provision will
continue to hinder state, regional, and local water planning and
management efforts.
(g) The legislature finds that the interbasin transfer
requirements of Section 11.085, Water Code, other than the junior
rights provision, are sufficient to protect the interests of the
basin of origin, and that the junior rights provision of that
section should be repealed.
SECTION 2. REPEALER. Sections 11.085(s) and (t), Water
Code, are repealed.
SECTION 3. APPLICABILITY. (a) This Act applies only to an
application for a water right or an amendment to a permit, certified
filing, or certificate of adjudication authorizing an interbasin
transfer of water that is accepted for filing on or after the
effective date of this Act.
(b) An application for a water right or an amendment to a
permit, certified filing, or certificate of adjudication
authorizing an interbasin transfer of water that is accepted for
filing before the effective date of this Act is governed by the law
in effect at the time the application is accepted for filing, and
the former law is continued in effect for that purpose.
SECTION 4. 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.