78R6507 SMH-D
By: Gallegos S.B. No. 1690
A BILL TO BE ENTITLED
AN ACT
relating to the transfer or cancellation of a water right.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 11.085, Water Code, is amended by adding
Subsection (r-1) and amending Subsection (s) to read as follows:
(r-1) Any proposed transfer of all or a portion of a water
right under this section does not affect the priority of the water
right if the water or applicable portion of the water authorized to
be appropriated under the water right or portion of the water right
being transferred has been appropriated to a beneficial use that
consumes the water without return flow to the watercourse from
which the water was appropriated.
(s) Any proposed transfer of all or a portion of a water
right under this section is junior in priority to water rights
granted before the time application for transfer is accepted for
filing if the water or applicable portion of the water authorized to
be appropriated under the water right or portion of the water right
being transferred:
(1) has not been put to an authorized beneficial use
during the 10-year period preceding the date the application for
the transfer is accepted for filing; or
(2) has been put to a nonconsumptive beneficial use in
the basin of origin.
SECTION 2. Section 11.177, Water Code, is amended by
amending Subsection (b) and adding Subsections (c) and (d) to read
as follows:
(b) In determining what constitutes reasonable diligence or
a justified nonuse as used in Subsection (a)(2), the commission
shall give consideration to:
(1) whether sufficient water is available in the
source of supply to meet all or part of the appropriation during the
10-year period of nonuse;
(2) whether the nonuse is justified by the holder's
participation in the federal Conservation Reserve Program or a
similar governmental program as provided by Section 11.173(b)(1);
(3) whether the existing or proposed authorized
purpose and place of use are consistent with an approved regional
water plan as provided by Section 16.053;
(4) whether the permit, certified filing, or
certificate of adjudication has been deposited into the Texas Water
Bank as provided by Sections 15.7031 and 15.704;
(5) [or] whether it can be shown that the water right
or water available under the right is currently being made
available for purchase through private marketing efforts; or
(6) [(5)] whether the permit, certified filing, or
certificate of adjudication has been reserved to provide for
instream flows or bay and estuary inflows.
(c) If water or any portion of the water appropriated under
the permit, certified filing, or certificate of adjudication has
not been put to an authorized beneficial use during the 10-year
period and the only evidence of reasonable diligence or a justified
nonuse is that the water right or water available under the right is
currently being made available for purchase through private
marketing efforts, the commission shall cancel the permit,
certified filing, or certificate of adjudication to the extent of
50 percent of the amount of water authorized to be appropriated
under the permit, certified filing, or certificate of adjudication
that has not been put to an authorized beneficial use during the
10-year period.
(d) If the commission cancels a permit, certified filing, or
certificate of adjudication, in whole or in part, the commission
shall issue a new water right authorizing the appropriation of an
amount of water equal to the amount of water authorized to be
appropriated under the permit, certified filing, or certificate of
adjudication or portion of the permit, certified filing, or
certificate of adjudication. The commission shall dedicate the
water right to environmental needs, including instream flows, water
quality, fish and wildlife habitat, or bay and estuary inflows, and
place the water right in the Texas Water Trust established under
Section 15.7031 to be held in the trust in perpetuity. A water
right placed in the trust under this subsection has the same
priority as the canceled permit, certified filing, or certificate
of adjudication.
SECTION 3. (a) The changes in law made by this Act to
Section 11.085, Water Code, apply only to an application for an
interbasin transfer that is filed on or after the effective date of
this Act. An application for an interbasin transfer that is filed
before the effective date of this Act is governed by the law as it
existed immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
(b) The changes in law made by this Act to Section 11.177,
Water Code, apply only to a proceeding to cancel a permit, certified
filing, or certificate of adjudication that is initiated by the
executive director of the Texas Commission on Environmental Quality
on or after the effective date of this Act. A proceeding to cancel a
permit, certified filing, or certificate of adjudication that is
initiated before the effective date of this Act is governed by the
law as it existed immediately before the effective date of this Act,
and that law is continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2003.