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By: Puente (Senate Sponsor - Armbrister) H.B. No. 2423
(In the Senate - Received from the House April 27, 2005;
April 29, 2005, read first time and referred to Committee on
Natural Resources; May 20, 2005, reported adversely, with
favorable Committee Substitute by the following vote: Yeas 6,
Nays 0; May 20, 2005, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 2423 By: Armbrister
A BILL TO BE ENTITLED
AN ACT
relating to the consideration of historic or existing use in the
regulation of pumping and discrimination by a groundwater
conservation district against landowners whose land is enrolled or
participating in a federal conservation program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.001, Water Code, is amended by adding
Subdivision (4-a) to read as follows:
(4-a) "Federal conservation program" means the
Conservation Reserve Program of the United States Department of
Agriculture, or any successor program.
SECTION 2. Section 36.002, Water Code, is amended to read as
follows:
Sec. 36.002. OWNERSHIP OF GROUNDWATER. The ownership and
rights of the owners of the land and their lessees and assigns in
groundwater are hereby recognized, and nothing in this code shall
be construed as depriving or divesting the owners or their lessees
and assigns of the ownership or rights, except as those rights may
be limited or altered by rules promulgated by a district. A rule
promulgated by a district may not discriminate between owners of
land that is irrigated for production and owners of land or their
lessees and assigns whose land that was irrigated for production is
enrolled or participating in a federal conservation program.
SECTION 3. Section 36.113, Water Code, is amended by
amending Subsections (a), (c), (e), and (f) and adding Subsections
(h) through (l) to read as follows:
(a) A district shall require permits for [the] drilling,
equipping, [or] completing, or operating [of] wells or for
substantially altering the size of wells or well pumps.
(c) A district may require that the following be included in
the permit application:
(1) the name and mailing address of the applicant and
the owner of the land on which the well will be located;
(2) if the applicant is other than the owner of the
property, documentation establishing the applicable authority to
construct and operate a well for the proposed purpose of use;
(3) a statement of the nature and purpose of the
proposed use and the amount of water to be used for each purpose;
(4) a water conservation plan or a declaration that
the applicant will comply with the district's management plan;
(5) the location of each well and the estimated rate at
which water will be withdrawn;
(6) a water well closure plan or a declaration that the
applicant will comply with well plugging guidelines and report
closure to the commission; and
(7) a drought contingency plan.
(e) The district may impose more restrictive permit
conditions on new permit applications and increased use by historic
or existing users if the limitations:
(1) apply to all subsequent new permit applications
and increased use by historic or existing users, regardless of type
or location of use;
(2) bear a reasonable relationship to the existing
district management plan; and
(3) are reasonably necessary to protect existing use.
(f) Permits may be issued subject to the rules promulgated
by the district and subject to terms and provisions with reference
to the drilling, equipping, completion, operating, or alteration of
wells or pumps that may be necessary to prevent waste and achieve
water conservation, minimize as far as practicable the drawdown of
the water table or the reduction of artesian pressure, lessen
interference between wells, or control and prevent subsidence.
(h) A district shall provide that a change in the purpose
and place of use under a permit that was granted for historic or
existing use may not be made without a permit amendment. The
district shall grant a permit amendment changing the purpose and
place of use on application of the holder of a permit that was
granted for historic or existing use, and the rules that apply to
the operation of a well under any other permit issued by the
district not based on historic or existing use apply to the
operation of the well under the amended permit.
(i) A district that authorizes a permit for historic or
existing use shall issue that type of permit based on evidence of
the maximum amount of water beneficially used without waste during
any one year before the district was created, or before the rules of
the district were adopted or notice of such proposed rules was
published and only for the purpose and amount beneficially used
without waste in that year.
(j) In issuing a permit for an existing or historic use, a
district may not discriminate between land that is irrigated for
production and land or wells on land that was irrigated for
production and enrolled or participating in a federal conservation
program.
(k) A permitting decision by a district is void if:
(1) the district makes its decision in violation of
Subsection (j); and
(2) the district would have reached a different
decision if the district had treated land or wells on land that was
irrigated for production and enrolled or participating in a federal
conservation program the same as land irrigated for production.
(l) On the application of an affected owner of land or the
owner's lessee or assigns, the district shall reconsider a decision
that is void under Subsection (k) and base its decision on the equal
treatment of land or wells on land that was irrigated for production
and enrolled or participating in a federal conservation program and
land that is irrigated for production. Not later than the 90th day
after the date the district receives an application under this
subsection, the district shall render its decision and notify the
applicant of its decision.
SECTION 4. Subsection (b), Section 36.116, Water Code, is
amended to read as follows:
(b) In promulgating any rules limiting groundwater
production, the district may preserve historic or existing use
before the effective date of the rules to the maximum extent
practicable consistent with the district's comprehensive
management plan under Section 36.1071 and as provided by Section
36.113.
SECTION 5. (a) Except in any district located in a single
county whose boundaries were expanded, but are not coextensive with
the county in which the district is located, by an Act of the Texas
Legislature in a regular session on or after 2003, the changes in
law made under this legislation do not apply to:
(1) an application or permit issued on the basis of an
application filed before March 1, 2005;
(2) a renewal or amendment of a permit issued on the
basis of an application filed before March 1, 2005;
(3) a permit issued under rules in effect as of March
1, 2005;
(4) a renewal or amendment to a permit issued under
rules in effect as of March 1, 2005; or
(5) rules of groundwater conservation districts that
were adopted prior to March 1, 2005.
(b) Subsection (a) of this section does not limit the
ability of a groundwater conservation district to adopt procedural
rules governing notice, hearing, rulemaking, or permit processing
in accordance with any law finally passed by the 79th Legislature,
Regular Session, 2005, that governs notice, hearing, rulemaking, or
permit processing procedures of groundwater conservation
districts, if the procedural rules adopted do not conflict with a
substantive district rule that existed on March 1, 2005.
SECTION 6. This Act takes effect September 1, 2005.
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