80(R) HB 3 - Enrolled version

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	H.B. No. 3

AN ACT

relating to the management of the water resources of the state,

including the protection of instream flows and freshwater inflows,

and to the management of groundwater in the area regulated by the

Edwards Aquifer Authority and to the operations and oversight of

the authority.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

ARTICLE 1. MANAGEMENT OF STATE WATER

SECTION 1.01. The heading to Section 5.506, Water Code, is

amended to read as follows:

Sec. 5.506. EMERGENCY SUSPENSION OF PERMIT CONDITION

RELATING TO, AND EMERGENCY AUTHORITY TO MAKE AVAILABLE WATER SET

ASIDE FOR, BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND

INSTREAM USES.

SECTION 1.02. Section 5.506, Water Code, is amended by

adding Subsection (a-1) and amending Subsections (b) and (c) to

read as follows:

(a-1) State water that is set aside by the commission to

meet the needs for freshwater inflows to affected bays and

estuaries and instream uses under Section 11.1471(a)(2) may be made

available temporarily for other essential beneficial uses if the

commission finds that an emergency exists that cannot practically

be resolved in another way.

(b) The commission must give written notice of the proposed

action [~~suspension~~] to the Parks and Wildlife Department before the

commission suspends a permit condition under Subsection (a) or

makes water available temporarily under Subsection (a-1) [~~this~~

~~section~~]. The commission shall give the Parks and Wildlife

Department an opportunity to submit comments on the proposed action

[~~suspension~~] for a period of 72 hours from receipt of the notice and

must consider those comments before issuing an order implementing

the proposed action [~~imposing the suspension~~].

Subsection (a) or make water available temporarily under Subsection

(a-1) [~~this section~~] without notice except as required by

Subsection (b).

SECTION 1.03. Section 5.701(j), Water Code, is amended to

read as follows:

(j) The fee for other uses of water not specifically named

in this section is $1 per acre-foot, except that no political

subdivision may be required to pay fees to use water for recharge of

underground freshwater-bearing sands and aquifers or for abatement

of natural pollution. A fee is not required for a water right that

is [~~This fee is waived for applications for instream-use water~~

~~rights~~] deposited into the Texas Water Trust.

SECTION 1.04. Section 11.002, Water Code, is amended by

adding Subdivisions (15), (16), (17), (18), and (19) to read as

follows:

(15) "Environmental flow analysis" means the

application of a scientifically derived process for predicting the

response of an ecosystem to changes in instream flows or freshwater

inflows.

(16) "Environmental flow regime" means a schedule of

flow quantities that reflects seasonal and yearly fluctuations that

typically would vary geographically, by specific location in a

watershed, and that are shown to be adequate to support a sound

ecological environment and to maintain the productivity, extent,

and persistence of key aquatic habitats in and along the affected

water bodies.

(17) "Environmental flow standards" means those

requirements adopted by the commission under Section 11.1471.

(18) "Advisory group" means the environmental flows

advisory group.

(19) "Science advisory committee" means the Texas

environmental flows science advisory committee.

SECTION 1.05. Section 11.023(a), Water Code, is amended to

read as follows:

(a) To the extent that state water has not been set aside by

the commission under Section 11.1471(a)(2) to meet downstream

instream flow needs or freshwater inflow needs, state [~~State~~] water

may be appropriated, stored, or diverted for:

(1) domestic and municipal uses, including water for

sustaining human life and the life of domestic animals;

(2) agricultural uses and industrial uses, meaning

processes designed to convert materials of a lower order of value

into forms having greater usability and commercial value, including

the development of power by means other than hydroelectric;

(3) mining and recovery of minerals;

(4) hydroelectric power;

(5) navigation;

(6) recreation and pleasure;

(7) public parks; and

(8) game preserves.

SECTION 1.06. Section 11.0235, Water Code, is amended by

amending Subsections (c) and (e) and adding Subsections (d-1)

through (d-6) and (f) to read as follows:

while balancing all other public interests to consider and, to the

extent practicable, provide for the freshwater inflows and instream

flows necessary to maintain the viability of the state's streams,

rivers, and bay and estuary systems in the commission's regular

granting of permits for the use of state waters. As an essential

part of the state's environmental flows policy, all permit

conditions relating to freshwater inflows to affected bays and

estuaries and instream flow needs must be subject to temporary

suspension if necessary for water to be applied to essential

beneficial uses during emergencies.

(d-1) The legislature has determined that existing water

rights that are converted to water rights for environmental

purposes should be enforced in a manner consistent with the

enforcement of water rights for other purposes as provided by the

laws of this state governing the appropriation of state water.

(d-2) The legislature finds that to provide certainty in

water management and development and to provide adequate protection

of the state's streams, rivers, and bays and estuaries, the state

must have a process with specific timelines for prompt action to

address environmental flow issues in the state's major basin and

bay systems, especially those systems in which unappropriated water

is still available.

(d-3) The legislature finds that:

(1) in those basins in which water is available for

appropriation, the commission should establish an environmental

set-aside below which water should not be available for

appropriation; and

(2) in those basins in which the unappropriated water

that will be set aside for instream flow and freshwater inflow

protection is not sufficient to fully satisfy the environmental

flow standards established by the commission, a variety of market

approaches, both public and private, for filling the gap must be

explored and pursued.

(d-4) The legislature finds that while the state has

pioneered tools to address freshwater inflow needs for bays and

estuaries, there are limitations to those tools in light of both

scientific and public policy evolution. To fully address bay and

estuary environmental flow issues, the foundation of work

accomplished by the state should be improved. While the state's

instream flow studies program appears to encompass a comprehensive

and scientific approach for establishing a process to assess

instream flow needs for rivers and streams across the state, more

extensive review and examination of the details of the program,

which may not be fully developed until the program is under way, are

needed to ensure an effective tool for evaluating riverine

environmental flow conditions.

(d-5) The legislature finds that the management of water to

meet instream flow and freshwater inflow needs should be evaluated

on a regular basis and adapted to reflect both improvements in

science related to environmental flows and future changes in

projected human needs for water. In addition, the development of

management strategies for addressing environmental flow needs

should be an ongoing, adaptive process that considers and addresses

local issues.

(d-6) The legislature finds that recommendations for state

action to protect instream flows and freshwater inflows should be

developed through a consensus-based, regional approach involving

balanced representation of stakeholders and that such a process

should be encouraged throughout the state.

(e) The fact that greater pressures and demands are being

placed on the water resources of the state makes it of paramount

importance to ensure [~~reexamine the process for ensuring~~] that

these important priorities are effectively addressed by detailing

how environmental flow standards are to be developed using the

environmental studies that have been and are to be performed by the

state and others and specifying in clear delegations of authority

how those environmental flow standards will be integrated into the

regional water planning and water permitting process [~~to the~~

~~commission~~].

(f) The legislature recognizes that effective

implementation of the approach provided by this chapter for

protecting instream flows and freshwater inflows will require more

effective water rights administration and enforcement systems than

are currently available in most areas of the state.

SECTION 1.07. Subchapter B, Chapter 11, Water Code, is

amended by adding Sections 11.0236, 11.02361, 11.02362, and 11.0237

to read as follows:

Sec. 11.0236. ENVIRONMENTAL FLOWS ADVISORY GROUP. (a) In

recognition of the importance that the ecological soundness of our

riverine, bay, and estuary systems and riparian lands has on the

economy, health, and well-being of the state there is created the

environmental flows advisory group.

(b) The advisory group is composed of nine members as

follows:

(1) three members appointed by the governor;

(2) three members of the senate appointed by the

lieutenant governor; and

(3) three members of the house of representatives

appointed by the speaker of the house of representatives.

(1) one member must be a member of the commission;

(2) one member must be a member of the board; and

(3) one member must be a member of the Parks and

Wildlife Commission.

(d) Each member of the advisory group serves at the will of

the person who appointed the member.

(e) The appointed senator with the most seniority and the

appointed house member with the most seniority serve together as

co-presiding officers of the advisory group.

(f) A member of the advisory group is not entitled to

receive compensation for service on the advisory group but is

entitled to reimbursement of the travel expenses incurred by the

member while conducting the business of the advisory group, as

provided by the General Appropriations Act.

(g) The advisory group may accept gifts and grants from any

source to be used to carry out a function of the advisory group.

(h) The commission shall provide staff support for the

advisory group.

(i) The advisory group shall conduct public hearings and

study public policy implications for balancing the demands on the

water resources of the state resulting from a growing population

with the requirements of the riverine, bay, and estuary systems

including granting permits for instream flows dedicated to

environmental needs or bay and estuary inflows, use of the Texas

Water Trust, and any other issues that the advisory group

determines have importance and relevance to the protection of

environmental flows. In evaluating the options for providing

adequate environmental flows, the advisory group shall take notice

of the strong public policy imperative that exists in this state

recognizing that environmental flows are important to the

biological health of our public and private lands, streams and

rivers, and bay and estuary systems and are high priorities in the

water management process. The advisory group shall specifically

address:

(1) ways that the ecological soundness of those

systems will be ensured in the water rights administration and

enforcement and water allocation processes; and

(2) appropriate methods to encourage persons

voluntarily to convert reasonable amounts of existing water rights

to use for environmental flow protection temporarily or

permanently.

(j) The advisory group may adopt rules, procedures, and

policies as needed to administer this section, to implement its

responsibilities, and to exercise its authority under Sections

11.02361 and 11.02362.

(k) Chapter 2110, Government Code, does not apply to the

size, composition, or duration of the advisory group.

(l) Not later than December 1, 2008, and every two years

thereafter, the advisory group shall issue and promptly deliver to

the governor, lieutenant governor, and speaker of the house of

representatives copies of a report summarizing:

(1) any hearings conducted by the advisory group;

(2) any studies conducted by the advisory group;

(3) any legislation proposed by the advisory group;

(4) progress made in implementing Sections 11.02361

and 11.02362; and

(5) any other findings and recommendations of the

advisory group.

(m) The advisory group is abolished on the date that the

commission has adopted environmental flow standards under Section

11.1471 for all of the river basin and bay systems in this state.

Sec. 11.02361. TEXAS ENVIRONMENTAL FLOWS SCIENCE ADVISORY

COMMITTEE. (a) The Texas environmental flows science advisory

committee consists of at least five but not more than nine members

appointed by the advisory group.

(b) The advisory group shall appoint to the science advisory

committee persons who will provide an objective perspective and

diverse technical expertise, including expertise in hydrology,

hydraulics, water resources, aquatic and terrestrial biology,

geomorphology, geology, water quality, computer modeling, and

other technical areas pertinent to the evaluation of environmental

flows.

five-year terms expiring March 1. A vacancy on the science advisory

committee is filled by appointment by the co-presiding officers of

the advisory group for the unexpired term.

(d) Chapter 2110, Government Code, does not apply to the

size, composition, or duration of the science advisory committee.

(e) The science advisory committee shall:

(1) serve as an objective scientific body to advise

and make recommendations to the advisory group on issues relating

to the science of environmental flow protection; and

(2) develop recommendations to help provide overall

direction, coordination, and consistency relating to:

(A) environmental flow methodologies for bay and

estuary studies and instream flow studies;

(B) environmental flow programs at the

commission, the Parks and Wildlife Department, and the board; and

teams described in Section 11.02362.

(f) To assist the advisory group to assess the extent to

which the recommendations of the science advisory committee are

considered and implemented, the commission, the Parks and Wildlife

Department, and the board shall provide written reports to the

advisory group, at intervals determined by the advisory group, that

describe:

(1) the actions taken by each agency in response to

each recommendation; and

(2) for each recommendation not implemented, the

reason it was not implemented.

(g) The science advisory committee is abolished on the date

the advisory group is abolished under Section 11.0236(m).

Sec. 11.02362. DEVELOPMENT OF ENVIRONMENTAL FLOW REGIME

RECOMMENDATIONS. (a) For the purposes of this section, the

advisory group, not later than November 1, 2007, shall define the

geographical extent of each river basin and bay system in this state

for the sole purpose of developing environmental flow regime

recommendations under this section and adoption of environmental

flow standards under Section 11.1471.

(b) The advisory group shall give priority in descending

order to the following river basin and bay systems of the state for

the purpose of developing environmental flow regime

recommendations and adopting environmental flow standards:

(1) the river basin and bay system consisting of the

Trinity and San Jacinto Rivers and Galveston Bay and the river basin

and bay system consisting of the Sabine and Neches Rivers and Sabine

Lake Bay;

(2) the river basin and bay system consisting of the

Colorado and Lavaca Rivers and Matagorda and Lavaca Bays and the

river basin and bay system consisting of the Guadalupe, San

Antonio, Mission, and Aransas Rivers and Mission, Copano, Aransas,

and San Antonio Bays; and

(3) the river basin and bay system consisting of the

Nueces River and Corpus Christi and Baffin Bays, the river basin and

bay system consisting of the Rio Grande, the Rio Grande estuary, and

the Lower Laguna Madre, and the Brazos River and its associated bay

and estuary system.

(b)(1):

(1) the advisory group shall appoint the basin and bay

area stakeholders committee not later than November 1, 2007;

(2) the basin and bay area stakeholders committee

shall establish a basin and bay expert science team not later than

March 1, 2008;

(3) the basin and bay expert science team shall

finalize environmental flow regime recommendations and submit them

to the basin and bay area stakeholders committee, the advisory

group, and the commission not later than March 1, 2009, except that

at the request of the basin and bay area stakeholders committee for

good cause shown, the advisory group may extend the deadline

provided by this subdivision;

(4) the basin and bay area stakeholders committee

shall submit to the commission its comments on and recommendations

regarding the basin and bay expert science team's recommended

environmental flow regime not later than September 1, 2009; and

(5) the commission shall adopt the environmental flow

standards as provided by Section 11.1471 not later than September

1, 2010.

(d) The advisory group shall appoint the basin and bay area

stakeholders committees for the river basin and bay systems listed

in Subsection (b)(2) not later than September 1, 2008, and shall

appoint the basin and bay area stakeholders committees for the

river basin and bay systems listed in Subsection (b)(3) not later

than September 1, 2009. The advisory group shall establish a

schedule for the performance of the tasks listed in Subsections

(c)(2) through (5) with regard to the river basin and bay systems

listed in Subsections (b)(2) and (3) that will result in the

adoption of environmental flow standards for that river basin and

bay system by the commission as soon as is reasonably possible.

Each basin and bay area stakeholders committee and basin and bay

expert science team for a river basin and bay system listed in

Subsection (b)(2) or (3) shall make recommendations to the advisory

group with regard to the schedule applicable to that river basin and

bay system. The advisory group shall consider the recommendations

of the basin and bay area stakeholders committee and basin and bay

expert science team as well as coordinate with, and give

appropriate consideration to the recommendations of, the

commission, the Parks and Wildlife Department, and the board in

establishing the schedule.

(e) For a river basin and bay system or a river basin that

does not have an associated bay system in this state not listed in

Subsection (b), the advisory group shall establish a schedule for

the development of environmental flow regime recommendations and

the adoption of environmental flow standards. The advisory group

shall develop the schedule in consultation with the commission, the

Parks and Wildlife Department, the board, and the pertinent basin

and bay area stakeholders committee and basin and bay expert

science team. The advisory group may, on its own initiative or on

request, modify a schedule established under this subsection to be

more responsive to particular circumstances, local desires,

changing conditions, or time-sensitive conflicts. This subsection

does not prohibit, in a river basin and bay system for which the

advisory group has not yet established a schedule for the

development of environmental flow regime recommendations and the

adoption of environmental flow standards, an effort to develop

information on environmental flow needs and ways in which those

needs can be met by a voluntary consensus-building process.

(f) The advisory group shall appoint a basin and bay area

stakeholders committee for each river basin and bay system in this

state for which a schedule for the development of environmental

flow regime recommendations and the adoption of environmental flow

standards is specified by or established under Subsection (c), (d),

or (e). Chapter 2110, Government Code, does not apply to the size,

composition, or duration of a basin and bay area stakeholders

committee. Each committee must consist of at least 17 members. The

membership of each committee must:

(1) reflect a fair and equitable balance of interest

groups concerned with the particular river basin and bay system for

which the committee is established; and

(2) be representative of appropriate stakeholders,

including the following if they have a presence in the particular

river basin and bay system for which the committee is established:

(A) agricultural water users, including

representatives of each of the following sectors:

(i) agricultural irrigation;

(ii) free-range livestock; and

(iii) concentrated animal feeding

operation;

(B) recreational water users, including coastal

recreational anglers and businesses supporting water recreation;

(D) soil and water conservation districts;

(E) industrial water users, including

representatives of each of the following sectors:

(i) refining;

(ii) chemical manufacturing;

(iii) electricity generation; and

(iv) production of paper products or

timber;

(F) commercial fishermen;

(G) public interest groups;

(H) regional water planning groups;

(I) groundwater conservation districts;

(J) river authorities and other conservation and

reclamation districts with jurisdiction over surface water; and

(K) environmental interests.

(g) Members of a basin and bay area stakeholders committee

serve five-year terms expiring March 1. If a vacancy occurs on a

committee, the remaining members of the committee by majority vote

shall appoint a member to serve the remainder of the unexpired term.

(h) Meetings of a basin and bay area stakeholders committee

must be open to the public.

(i) Each basin and bay area stakeholders committee shall

establish a basin and bay expert science team for the river basin

and bay system for which the committee is established. The basin

and bay expert science team must be established not later than six

months after the date the basin and bay area stakeholders committee

is established. Chapter 2110, Government Code, does not apply to

the size, composition, or duration of a basin and bay expert science

team. Each basin and bay expert science team must be composed of

technical experts with special expertise regarding the river basin

and bay system or regarding the development of environmental flow

regimes. A person may serve as a member of more than one basin and

bay expert science team at the same time.

(j) The members of a basin and bay expert science team serve

five-year terms expiring April 1. A vacancy on a basin and bay

expert science team is filled by appointment by the pertinent basin

and bay area stakeholders committee to serve the remainder of the

unexpired term.

(k) The science advisory committee shall appoint one of its

members to serve as a liaison to each basin and bay expert science

team to facilitate coordination and consistency in environmental

flow activities throughout the state. The commission, the Parks

and Wildlife Department, and the board shall provide technical

assistance to each basin and bay expert science team, including

information about the studies conducted under Sections 16.058 and

16.059, and may serve as nonvoting members of the basin and bay

expert science team to facilitate the development of environmental

flow regime recommendations.

(l) Where reasonably practicable, meetings of a basin and

bay expert science team must be open to the public.

(m) Each basin and bay expert science team shall develop

environmental flow analyses and a recommended environmental flow

regime for the river basin and bay system for which the team is

established through a collaborative process designed to achieve a

consensus. In developing the analyses and recommendations, the

science team must consider all reasonably available science,

without regard to the need for the water for other uses, and the

science team's recommendations must be based solely on the best

science available. For the Rio Grande below Fort Quitman, any uses

attributable to Mexican water flows must be excluded from

environmental flow regime recommendations.

(n) Each basin and bay expert science team shall submit its

environmental flow analyses and environmental flow regime

recommendations to the pertinent basin and bay area stakeholders

committee, the advisory group, and the commission in accordance

with the applicable schedule specified by or established under

Subsection (c), (d), or (e). The basin and bay area stakeholders

committee and the advisory group may not change the environmental

flow analyses or environmental flow regime recommendations of the

basin and bay expert science team.

(o) Each basin and bay area stakeholders committee shall

review the environmental flow analyses and environmental flow

regime recommendations submitted by the committee's basin and bay

expert science team and shall consider them in conjunction with

other factors, including the present and future needs for water for

other uses related to water supply planning in the pertinent river

basin and bay system. For the Rio Grande, the basin and bay area

stakeholders committee shall also consider the water accounting

requirements for any international water sharing treaty, minutes,

and agreement applicable to the Rio Grande and the effects on

allocation of water by the Rio Grande watermaster in the middle and

lower Rio Grande. The Rio Grande basin and bay expert science team

may not recommend any environmental flow regime that would result

in a violation of a treaty or court decision. The basin and bay area

stakeholders committee shall develop recommendations regarding

environmental flow standards and strategies to meet the

environmental flow standards and submit those recommendations to

the commission and to the advisory group in accordance with the

applicable schedule specified by or established under Subsection

(c), (d), or (e). In developing its recommendations, the basin and

bay area stakeholders committee shall operate on a consensus basis

to the maximum extent possible.

(p) In recognition of the importance of adaptive

management, after submitting its recommendations regarding

environmental flow standards and strategies to meet the

environmental flow standards to the commission, each basin and bay

area stakeholders committee, with the assistance of the pertinent

basin and bay expert science team, shall prepare and submit for

approval by the advisory group a work plan. The work plan must:

(1) establish a periodic review of the basin and bay

environmental flow analyses and environmental flow regime

recommendations, environmental flow standards, and strategies, to

occur at least once every 10 years;

(2) prescribe specific monitoring, studies, and

activities; and

(3) establish a schedule for continuing the validation

or refinement of the basin and bay environmental flow analyses and

environmental flow regime recommendations, the environmental flow

standards adopted by the commission, and the strategies to achieve

those standards.

(q) In accordance with the applicable schedule specified by

or established under Subsection (c), (d), or (e), the advisory

group, with input from the science advisory committee, shall review

the environmental flow analyses and environmental flow regime

recommendations submitted by each basin and bay expert science

team. If appropriate, the advisory group shall submit comments on

the analyses and recommendations to the commission for use by the

commission in adopting rules under Section 11.1471. Comments must

be submitted not later than six months after the date of receipt of

the analyses and recommendations.

(r) Notwithstanding the other provisions of this section,

in the event the commission, by permit or order, has established an

estuary advisory council with specific duties related to

implementation of permit conditions for environmental flows, that

council may continue in full force and effect and shall act as and

perform the duties of the basin and bay area stakeholders committee

under this section. The estuary advisory council shall add members

from stakeholder groups and from appropriate science and technical

groups, if necessary, to fully meet the criteria for membership

established in Subsection (f) and shall operate under the

provisions of this section.

(s) Each basin and bay area stakeholders committee and basin

and bay expert science team is abolished on the date the advisory

group is abolished under Section 11.0236(m).

Sec. 11.0237. WATER RIGHTS FOR INSTREAM FLOWS DEDICATED TO

ENVIRONMENTAL NEEDS OR BAY AND ESTUARY INFLOWS. (a) The commission

may not issue a new permit for instream flows dedicated to

environmental needs or bay and estuary inflows. The commission may

approve an application to amend an existing permit or certificate

of adjudication to change the use to or add a use for instream flows

dedicated to environmental needs or bay and estuary inflows.

(b) This section does not alter the commission's

obligations under Section 11.042(b) or (c), 11.046(b),

11.085(k)(2)(F), 11.134(b)(3)(D), 11.147, 11.1471, 11.1491,

11.150, 11.152, 16.058, or 16.059.

SECTION 1.08. Section 11.082(b), Water Code, is amended to

read as follows:

(b) The state may recover the penalties prescribed in

Subsection (a) [~~of this section~~] by suit brought for that purpose in

a court of competent jurisdiction. The state may seek those

penalties regardless of whether a watermaster has been appointed

for the water division, river basin, or segment of a river basin

where the unlawful use is alleged to have occurred.

SECTION 1.09. Section 11.0841, Water Code, is amended by

adding Subsection (c) to read as follows:

Department has:

(1) the rights of a holder of a water right that is

held in the Texas Water Trust, including the right to file suit in a

civil court to prevent the unlawful use of such a right;

(2) the right to act in the same manner that a holder

of a water right may act to protect the holder's rights in seeking

to prevent any person from appropriating water in violation of a

set-aside established by the commission under Section 11.1471 to

meet instream flow needs or freshwater inflow needs; and

(3) the right to file suit in a civil court to prevent

the unlawful use of a set-aside established under Section 11.1471.

SECTION 1.10. Section 11.0842(a), Water Code, is amended to

read as follows:

(a) If a person violates this chapter, a rule or order

adopted under this chapter or Section 16.236 [~~of this code~~], or a

permit, certified filing, or certificate of adjudication issued

under this chapter, the commission may assess an administrative

penalty against that person as provided by this section. The

commission may assess an administrative penalty for a violation

relating to a water division or a river basin or segment of a river

basin regardless of whether a watermaster has been appointed for

the water division or river basin or segment of the river basin.

SECTION 1.11. Section 11.0843(a), Water Code, is amended to

read as follows:

(a) Upon witnessing a violation of this chapter or a rule or

order or a water right issued under this chapter, the executive

director or a person designated by the executive director,

including a watermaster or the watermaster's deputy, [~~as defined by~~

~~commission rule,~~] may issue the alleged violator a field citation

alleging that a violation has occurred and providing the alleged

violator the option of either:

(1) without admitting to or denying the alleged

violation, paying an administrative penalty in accordance with the

predetermined penalty amount established under Subsection (b) [of

~~this section~~] and taking remedial action as provided in the

citation; or

(2) requesting a hearing on the alleged violation in

accordance with Section 11.0842 [~~of this code~~].

SECTION 1.12. Section 11.134(b), Water Code, is amended to

read as follows:

(b) The commission shall grant the application only if:

(1) the application conforms to the requirements

prescribed by this chapter and is accompanied by the prescribed

fee;

(2) unappropriated water is available in the source of

supply;

(3) the proposed appropriation:

(A) is intended for a beneficial use;

(B) does not impair existing water rights or

vested riparian rights;

(D) considers any applicable environmental flow

standards established under Section 11.1471 and, if applicable, the

assessments performed under Sections 11.147(d) and (e) and Sections

11.150, 11.151, and 11.152; and

(E) addresses a water supply need in a manner

that is consistent with the state water plan and the relevant

approved regional water plan for any area in which the proposed

appropriation is located, unless the commission determines that

conditions warrant waiver of this requirement; and

(4) the applicant has provided evidence that

reasonable diligence will be used to avoid waste and achieve water

conservation as defined by [~~Subdivision (8)(B),~~] Section

11.002(8)(B) [~~11.002~~].

SECTION 1.13. Section 11.147, Water Code, is amended by

amending Subsections (b), (d), and (e) and adding Subsections

(e-1), (e-2), and (e-3) to read as follows:

(b) In its consideration of an application for a permit to

store, take, or divert water, the commission shall assess the

effects, if any, of the issuance of the permit on the bays and

estuaries of Texas. For permits issued within an area that is 200

river miles of the coast, to commence from the mouth of the river

thence inland, the commission shall include in the permit any

conditions considered necessary to maintain beneficial inflows to

any affected bay and estuary system, to the extent practicable when

considering all public interests and the studies mandated by

Section 16.058 as evaluated under Section 11.1491[~~, those~~

~~conditions considered necessary to maintain beneficial inflows to~~

~~any affected bay and estuary system~~].

(d) In its consideration of an application to store, take,

or divert water, the commission shall include in the permit, to the

extent practicable when considering all public interests, those

conditions considered by the commission necessary to maintain

existing instream uses and water quality of the stream or river to

which the application applies. In determining what conditions to

include in the permit under this subsection, the commission shall

consider among other factors:

(1) the studies mandated by Section 16.059; and

(2) any water quality assessment performed under

Section 11.150.

(e) The commission shall include in the permit, to the

extent practicable when considering all public interests, those

conditions considered by the commission necessary to maintain fish

and wildlife habitats. In determining what conditions to include

in the permit under this subsection, the commission shall consider

any assessment performed under Section 11.152.

(e-1) Any permit for a new appropriation of water or an

amendment to an existing water right that increases the amount of

water authorized to be stored, taken, or diverted must include a

provision allowing the commission to adjust the conditions included

in the permit or amended water right to provide for protection of

instream flows or freshwater inflows. With respect to an amended

water right, the provision may not allow the commission to adjust a

condition of the amendment other than a condition that applies only

to the increase in the amount of water to be stored, taken, or

diverted authorized by the amendment. This subsection does not

affect an appropriation of or an authorization to store, take, or

divert water under a permit or amendment to a water right issued

before September 1, 2007. The commission shall adjust the

conditions if the commission determines, through an expedited

public comment process, that such an adjustment is appropriate to

achieve compliance with applicable environmental flow standards

adopted under Section 11.1471. The adjustment:

(1) in combination with any previous adjustments made

under this subsection may not increase the amount of the

pass-through or release requirement for the protection of instream

flows or freshwater inflows by more than 12.5 percent of the

annualized total of that requirement contained in the permit as

issued or of that requirement contained in the amended water right

and applicable only to the increase in the amount of water

authorized to be stored, taken, or diverted under the amended water

right;

(2) must be based on appropriate consideration of the

priority dates and diversion locations of any other water rights

granted in the same river basin that are subject to adjustment under

this subsection; and

(3) must be based on appropriate consideration of any

voluntary contributions to the Texas Water Trust, and of any

voluntary amendments to existing water rights to change the use of a

specified quantity of water to or add a use of a specified quantity

of water for instream flows dedicated to environmental needs or bay

and estuary inflows as authorized by Section 11.0237(a), that

actually contribute toward meeting the applicable environmental

flow standards.

(e-2) Any water right holder who makes a contribution or

amends a water right as described by Subsection (e-1)(3) is

entitled to appropriate credit for the benefits of the contribution

or amendment against the adjustment of the holder's water right

under Subsection (e-1).

(e-3) Notwithstanding Subsections (b)-(e), for the purpose

of determining the environmental flow conditions necessary to

maintain freshwater inflows to an affected bay and estuary system,

existing instream uses and water quality of a stream or river, or

fish and aquatic wildlife habitats, the commission shall apply any

applicable environmental flow standard, including any

environmental flow set-aside, adopted under Section 11.1471

instead of considering the factors specified by those subsections.

SECTION 1.14. Subchapter D, Chapter 11, Water Code, is

amended by adding Section 11.1471 to read as follows:

Sec. 11.1471. ENVIRONMENTAL FLOW STANDARDS AND SET-ASIDES.

(a) The commission by rule shall:

(1) adopt appropriate environmental flow standards

for each river basin and bay system in this state that are adequate

to support a sound ecological environment, to the maximum extent

reasonable considering other public interests and other relevant

factors;

(2) establish an amount of unappropriated water, if

available, to be set aside to satisfy the environmental flow

standards to the maximum extent reasonable when considering human

water needs; and

(3) establish procedures for implementing an

adjustment of the conditions included in a permit or an amended

water right as provided by Sections 11.147(e-1) and (e-2).

(b) In adopting environmental flow standards for a river

basin and bay system under Subsection (a)(1), the commission shall

consider:

(1) the definition of the geographical extent of the

river basin and bay system adopted by the advisory group under

Section 11.02362(a) and the definition and designation of the river

basin by the board under Section 16.051(c);

(2) the schedule established by the advisory group

under Section 11.02362(d) or (e) for the adoption of environmental

flow standards for the river basin and bay system, if applicable;

(3) the environmental flow analyses and the

recommended environmental flow regime developed by the applicable

basin and bay expert science team under Section 11.02362(m);

(4) the recommendations developed by the applicable

basin and bay area stakeholders committee under Section 11.02362(o)

regarding environmental flow standards and strategies to meet the

flow standards;

(5) any comments submitted by the advisory group to

the commission under Section 11.02362(q);

(6) the specific characteristics of the river basin

and bay system;

(7) economic factors;

(8) the human and other competing water needs in the

river basin and bay system;

(9) all reasonably available scientific information,

including any scientific information provided by the science

advisory committee; and

(10) any other appropriate information.

(a)(1) must consist of a schedule of flow quantities, reflecting

seasonal and yearly fluctuations that may vary geographically by

specific location in a river basin and bay system.

(d) As provided by Section 11.023, the commission may not

issue a permit for a new appropriation or an amendment to an

existing water right that increases the amount of water authorized

to be stored, taken, or diverted if the issuance of the permit or

amendment would impair an environmental flow set-aside established

under Subsection (a)(2). A permit for a new appropriation or an

amendment to an existing water right that increases the amount of

water authorized to be stored, taken, or diverted that is issued

after the adoption of an applicable environmental flow set-aside

must contain appropriate conditions to ensure protection of the

environmental flow set-aside.

(e) An environmental flow set-aside established under

Subsection (a)(2) for a river basin and bay system other than the

middle and lower Rio Grande must be assigned a priority date

corresponding to the date the commission receives environmental

flow regime recommendations from the applicable basin and bay

expert science team and be included in the appropriate water

availability models in connection with an application for a permit

for a new appropriation or for an amendment to an existing water

right that increases the amount of water authorized to be stored,

taken, or diverted.

(f) An environmental flow standard or environmental flow

set-aside adopted under Subsection (a) may be altered by the

commission in a rulemaking process undertaken in accordance with a

schedule established by the commission. In establishing a

schedule, the commission shall consider the applicable work plan

approved by the advisory group under Section 11.02362(p). The

commission's schedule may not provide for the rulemaking process to

occur more frequently than once every 10 years unless the work plan

provides for a periodic review under Section 11.02362(p) to occur

more frequently than once every 10 years. In that event, the

commission may provide for the rulemaking process to be undertaken

in conjunction with the periodic review if the commission

determines that schedule to be appropriate. A rulemaking process

undertaken under this subsection must provide for the participation

of stakeholders having interests in the particular river basin and

bay system for which the process is undertaken.

SECTION 1.15. The heading to Section 11.148, Water Code, is

amended to read as follows:

Sec. 11.148. EMERGENCY SUSPENSION OF PERMIT CONDITIONS AND

EMERGENCY AUTHORITY TO MAKE AVAILABLE WATER SET ASIDE FOR

ENVIRONMENTAL FLOWS.

SECTION 1.16. Section 11.148, Water Code, is amended by

adding Subsection (a-1) and amending Subsections (b) and (c) to

read as follows:

(a-1) State water that is set aside by the commission to

meet the needs for freshwater inflows to affected bays and

estuaries and instream uses under Section 11.1471(a)(2) may be made

available temporarily for other essential beneficial uses if the

commission finds that an emergency exists that cannot practically

be resolved in another way.

(b) Before the commission suspends a permit condition under

Subsection (a) or makes water available temporarily under

Subsection (a-1) [~~of this section~~], it must give written notice to

the Parks and Wildlife Department of the proposed action

[~~suspension~~]. The commission shall give the Parks and Wildlife

Department an opportunity to submit comments on the proposed action

[~~suspension~~] within 72 hours from such time and the commission

shall consider those comments before issuing its order implementing

the proposed action [~~imposing the suspension~~].

Subsection (a) or make water available temporarily under Subsection

(a-1) without notice to any other interested party other than the

Parks and Wildlife Department as provided by Subsection (b) [of

~~this section~~]. However, all affected persons shall be notified

immediately by publication, and a hearing to determine whether the

suspension should be continued shall be held within 15 days of the

date on which the order to suspend is issued.

SECTION 1.17. Section 11.1491(a), Water Code, is amended to

read as follows:

(a) The Parks and Wildlife Department and the commission

shall have joint responsibility to review the studies prepared

under Section 16.058 [~~of this code~~], to determine inflow conditions

necessary for the bays and estuaries, and to provide information

necessary for water resources management. Each agency shall

designate an employee to share equally in the oversight of the

program. Other responsibilities shall be divided between the Parks

and Wildlife Department and the commission to maximize present

in-house capabilities of personnel and to minimize costs to the

state. Each agency shall have reasonable access to all information

produced by the other agency. Publication of reports completed

under this section shall be submitted for comment to [~~both~~] the

commission, [~~and~~] the Parks and Wildlife Department, the advisory

group, the science advisory committee, and any applicable basin and

bay area stakeholders committee and basin and bay expert science

team.

SECTION 1.18. Section 11.329(g), Water Code, is amended to

read as follows:

(g) The commission may not assess costs under this section

against a holder of a non-priority hydroelectric right that owns or

operates privately owned facilities that collectively have a

capacity of less than two megawatts or against a holder of a water

right placed in the Texas Water Trust for a term of at least 20

years. [~~This subsection is not intended to affect in any way the~~

~~fees assessed on a water right holder by the commission under~~

~~Section 1.29(d), Chapter 626, Acts of the 73rd Legislature, Regular~~

~~Session, 1993. For purposes of Section 1.29(d), Chapter 626, Acts~~

~~of the 73rd Legislature, Regular Session, 1993, a holder of a~~

~~non-priority hydroelectric right that owns or operates privately~~

~~owned facilities that collectively have a capacity of less than two~~

~~megawatts shall be assessed fees at the same rate per acre-foot~~

~~charged to a holder of a non-priority hydroelectric right that owns~~

~~or operates privately owned facilities that collectively have a~~

~~capacity of more than two megawatts.~~]

SECTION 1.19. Section 11.404(e), Water Code, is amended to

read as follows:

(e) The court may not assess costs and expenses under this

section against:

(1) a holder of a non-priority hydroelectric right

that owns or operates privately owned facilities that collectively

have a capacity of less than two megawatts; or

(2) a holder of a water right placed in the Texas Water

Trust for a term of at least 20 years.

SECTION 1.20. Subchapter I, Chapter 11, Water Code, is

amended by adding Section 11.4531 to read as follows:

Sec. 11.4531. WATERMASTER ADVISORY COMMITTEE. (a) For

each river basin or segment of a river basin for which the executive

director appoints a watermaster under this subchapter, the

executive director shall appoint a watermaster advisory committee

consisting of at least nine but not more than 15 members. A member

of the advisory committee must be a holder of a water right or a

representative of a holder of a water right in the river basin or

segment of the river basin for which the watermaster is appointed.

In appointing members to the advisory committee, the executive

director shall consider:

(1) geographic representation;

(2) amount of water rights held;

(3) different types of holders of water rights and

users, including water districts, municipal suppliers, irrigators,

and industrial users; and

(4) experience and knowledge of water management

practices.

(b) An advisory committee member is not entitled to

reimbursement of expenses or to compensation.

expiring August 31 of each odd-numbered year and holds office until

a successor is appointed.

(d) The advisory committee shall meet within 30 days after

the date the initial appointments have been made and shall select a

presiding officer to serve a one-year term. The committee shall

meet regularly as necessary.

(e) The advisory committee shall:

(1) make recommendations to the executive director

regarding activities of benefit to the holders of water rights in

the administration and distribution of water to holders of water

rights in the river basin or segment of the river basin for which

the watermaster is appointed;

(2) review and comment to the executive director on

the annual budget of the watermaster operation; and

(3) perform other advisory duties as requested by the

executive director regarding the watermaster operation or as

requested by holders of water rights and considered by the

committee to benefit the administration of water rights in the

river basin or segment of the river basin for which the watermaster

is appointed.

SECTION 1.21. Sections 11.454 and 11.455, Water Code, are

amended to read as follows:

Sec. 11.454. DUTIES AND AUTHORITY OF THE WATERMASTER.

Section 11.327 applies to the duties and authority of a watermaster

appointed for a river basin or segment of a river basin under this

subchapter in the same manner as that section applies to the duties

and authority of a watermaster appointed for a water division under

Subchapter G [~~A watermaster as the agent of the commission and under~~

~~the executive director's supervision shall:~~

[~~(1)~~ ~~divide the water of the streams or other sources~~

~~of supply of his segment or basin in accordance with the authorized~~

~~water rights;~~

[~~(2)~~ ~~regulate or cause to be regulated the controlling~~

~~works of reservoirs and diversion works in time of water shortage,~~

~~as is necessary because of the rights existing in the streams of his~~

~~segment or basin, or as is necessary to prevent the waste of water~~

~~or its diversion, taking, storage, or use in excess of the~~

~~quantities to which the holders of water rights are lawfully~~

~~entitled; and~~

[~~(3)~~ ~~perform any other duties and exercise any~~

~~authority directed by the commission~~].

Sec. 11.455. COMPENSATION AND EXPENSES OF WATERMASTER

[~~ASSESSMENTS~~]. (a) Section 11.329 applies to the payment of the

compensation and expenses of a watermaster appointed for a river

basin or segment of a river basin under this subchapter in the same

manner as that section applies to the payment of the compensation

and expenses of a watermaster appointed for a water division under

Subchapter G.

(b) The executive director shall deposit the assessments

collected under this section to the credit of the watermaster fund.

watermaster fund may be used only for the purposes specified by

Section 11.3291 with regard to the watermaster operation under this

subchapter with regard to which the assessments were collected [~~The~~

~~commission may assess the costs of the watermaster against all~~

~~persons who hold water rights in the river basin or segment of the~~

~~river basin under the watermaster's jurisdiction in accordance with~~

~~Section 11.329 of this code~~].

SECTION 1.22. Subchapter F, Chapter 15, Water Code, is

amended by adding Section 15.4063 to read as follows:

Sec. 15.4063. ENVIRONMENTAL FLOWS FUNDING. The board may

authorize the use of money in the research and planning fund:

(1) to compensate the members of the Texas

environmental flows science advisory committee established under

Section 11.02361 for attendance and participation at meetings of

the committee and for transportation, meals, lodging, or other

travel expenses associated with attendance at those meetings as

provided by the General Appropriations Act;

(2) for contracts with cooperating state and federal

agencies and universities and with private entities as necessary to

provide technical assistance to enable the Texas environmental

flows science advisory committee and the basin and bay expert

science teams established under Section 11.02362 to perform their

statutory duties;

(3) to compensate the members of the basin and bay

expert science teams established under Section 11.02362 for

attendance and participation at meetings of the basin and bay

expert science teams and for transportation, meals, lodging, or

other travel expenses associated with attendance at those meetings

as provided by the General Appropriations Act; and

(4) for contracts with political subdivisions

designated as representatives of basin and bay area stakeholders

committees established under Section 11.02362 to fund all or part

of the administrative expenses incurred in conducting meetings of

the basin and bay area stakeholders committees or the pertinent

basin and bay expert science teams.

SECTION 1.23. Section 16.059(d), Water Code, is amended to

read as follows:

(d) The priority studies shall be completed not later than

December 31, 2016 [~~2010~~]. The Parks and Wildlife Department, the

commission, and the board shall establish a work plan that

prioritizes the studies and that sets interim deadlines providing

for publication of flow determinations for individual rivers and

streams on a reasonably consistent basis throughout the prescribed

study period. Before publication, completed studies shall be

submitted for comment to the commission, the board, and the Parks

and Wildlife Department.

SECTION 1.24. Section 26.0135(h), Water Code, as amended by

Chapters 234 and 965, Acts of the 77th Legislature, Regular

Session, 2001, is reenacted and amended to read as follows:

(h) The commission shall apportion, assess, and recover the

reasonable costs of administering the water quality management

programs under this section from users of water and wastewater

permit holders in the watershed according to the records of the

commission generally in proportion to their right, through permit

or contract, to use water from and discharge wastewater in the

watershed. Irrigation water rights, [~~and~~] non-priority

hydroelectric rights of a water right holder that owns or operates

privately owned facilities that collectively have a capacity of

less than two megawatts, and water rights held in the Texas Water

Trust for terms of at least 20 years will not be subject to this

assessment. The cost to river authorities and others to conduct

water quality monitoring and assessment shall be subject to prior

review and approval by the commission as to methods of allocation

and total amount to be recovered. The commission shall adopt rules

to supervise and implement the water quality monitoring,

assessment, and associated costs. The rules shall ensure that

water users and wastewater dischargers do not pay excessive

amounts, that program funds are equitably apportioned among basins,

that a river authority may recover no more than the actual costs of

administering the water quality management programs called for in

this section, and that no municipality shall be assessed cost for

any efforts that duplicate water quality management activities

described in Section 26.177 [~~of this chapter~~]. The rules

concerning the apportionment and assessment of reasonable costs

shall provide for a recovery of not more than $5,000,000 annually.

Costs recovered by the commission are to be deposited to the credit

of the water resource management account and may be used only to

accomplish the purposes of this section. The commission may apply

not more than 10 percent of the costs recovered annually toward the

commission's overhead costs for the administration of this section

and the implementation of regional water quality assessments. The

commission, with the assistance and input of each river authority,

shall file a written report accounting for the costs recovered

under this section with the governor, the lieutenant governor, and

the speaker of the house of representatives on or before December 1

of each even-numbered year.

SECTION 1.25. Section 11.1491(b), Water Code, is repealed.

SECTION 1.26. (a) The governor, lieutenant governor, and

speaker of the house of representatives shall appoint the initial

members of the environmental flows advisory group as provided by

Section 11.0236, Water Code, as added by this article, as soon as

practicable on or after the effective date of this article.

(b) As soon as practicable after taking office, the initial

members of the environmental flows advisory group shall appoint the

initial members of the Texas environmental flows science advisory

committee as provided by Section 11.02361, Water Code, as added by

this article. The terms of the initial members of the committee

expire March 1, 2012.

the members of each basin and bay area stakeholders committee as

provided by Section 11.02362, Water Code, as added by this article.

The terms of the initial members of each committee expire March 1 of

the fifth year that begins after the year in which the initial

appointments are made.

(d) Each basin and bay area stakeholders committee shall

appoint the members of the basin and bay expert science team for the

river basin and bay system for which the committee is established as

provided by Section 11.02362, Water Code, as added by this article.

The terms of the initial members of each team expire April 1 of the

fifth year that begins after the year in which the initial

appointments are made.

(e) The executive director of the Texas Commission on

Environmental Quality shall appoint the members of the watermaster

advisory committee under Section 11.4531, Water Code, as added by

this article, for each river basin or segment of a river basin for

which the executive director appoints a watermaster under

Subchapter I, Chapter 11, Water Code. The terms of the initial

members of each committee expire August 31 of the first

odd-numbered year that begins after the year in which the initial

appointments are made.

SECTION 1.27. The changes in law made by this article

relating to a permit for a new appropriation of water or to an

amendment to an existing water right that increases the amount of

water authorized to be stored, taken, or diverted apply only to:

(1) water appropriated under a permit for a new

appropriation of water the application for which is pending with

the Texas Commission on Environmental Quality on the effective date

of this Act or is filed with the commission on or after that date; or

(2) the increase in the amount of water authorized to

be stored, taken, or diverted under an amendment to an existing

water right that increases the amount of water authorized to be

stored, taken, or diverted and the application for which is pending

with the Texas Commission on Environmental Quality on the effective

date of this Act or is filed with the commission on or after that

date.

ARTICLE 2. EDWARDS AQUIFER AUTHORITY

SECTION 2.01. Section 1.11, Chapter 626, Acts of the 73rd

Legislature, Regular Session, 1993, is amended by amending

Subsection (f) and adding Subsections (f-1) and (f-2) to read as

follows:

(f) The authority may own, finance, design, [~~contract with a~~

~~person who uses water from the aquifer for the authority or that~~

~~person to~~] construct, operate, or [~~own, finance, and~~] maintain

recharge [~~water supply~~] facilities. [~~Management fees or special~~

~~fees may not be used for purchasing or operating these facilities.~~]

For the purpose of this subsection, "recharge [~~water supply~~]

facility" means [~~includes~~] a dam, reservoir, [~~treatment facility,~~

~~transmission facility,~~] or other method of recharge project and

associated facilities, structures, or works but does not include a

facility to recirculate water at Comal or San Marcos Springs.

(f-1) The authority shall provide written notice of the

intent to own, finance, design, construct, operate, or maintain

recharge facilities to:

(1) each groundwater conservation district in the area

in which the recharge facility will be located;

(2) the mayor of each municipality in the area in which

the recharge facility will be located;

(3) the county judge of each county in the area in

which the recharge facility will be located; and

(4) each member of the legislature who represents the

area in which the proposed recharge facility will be located.

(f-2) Any entity within the county in which a recharge

facility is to be constructed shall be provided opportunity for

input and allowed to provide proposals for partnering with the

authority to own, finance, design, construct, operate, or maintain

the recharge facility.

SECTION 2.02. Sections 1.14(a), (c), (e), (f), and (h),

Chapter 626, Acts of the 73rd Legislature, Regular Session, 1993,

are amended to read as follows:

(a) Authorizations to withdraw water from the aquifer and

all authorizations and rights to make a withdrawal under this Act

shall be limited in accordance with this section to:

(1) protect the water quality of the aquifer;

(2) protect the water quality of the surface streams

to which the aquifer provides springflow;

(3) achieve water conservation;

(4) maximize the beneficial use of water available for

withdrawal from the aquifer;

(5) recognize the extent of the hydro-geologic

connection and interaction between surface water and groundwater;

(6) protect aquatic and wildlife habitat;

(7) [~~(6)~~] protect species that are designated as

threatened or endangered under applicable federal or state law; and

(8) [~~(7)~~] provide for instream uses, bays, and

estuaries.

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 or be less than 572,000 [~~400,000~~]

acre-feet of water for each calendar year, which is the sum of all

regular permits issued or for which an application was filed and

issuance was pending action by the authority as of January 1, 2005.

(e) The authority may not allow withdrawals from the aquifer

through wells drilled after June 1, 1993, except for replacement,

test, or exempt wells or to the extent that the authority approves

an amendment to an initial regular permit to authorize a change in

the point of withdrawal under that permit [~~additional water as~~

~~provided by Subsection (d) and then on an interruptible basis~~].

(f) If the level of the aquifer is equal to or greater than

660 [~~650~~] feet above mean sea level as measured at Well J-17, 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. [~~The authority shall~~

~~limit the additional withdrawals to ensure that springflows are not~~

~~affected during critical drought conditions.~~]

(h) To accomplish the purposes of this article, [~~by June 1,~~

~~1994,~~] the authority, through a program, shall implement and

enforce water management practices, procedures, 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 and to achieve other purposes

provided by Subsection (a) of this section and Section 1.26 of this

article. The authority from time to time as appropriate may revise

the practices, procedures, and methods. To meet this requirement,

the authority shall require:

(1) phased adjustments to [~~reductions in~~] the amount

of water that may be used or withdrawn by existing users or

categories of other users, including adjustments in accordance with

the authority's critical period management plan established under

Section 1.26 of this article; or

(2) implementation of alternative management

practices, procedures, and methods.

SECTION 2.03. Section 1.16(g), Chapter 626, Acts of the

73rd Legislature, Regular Session, 1993, is amended to read as

follows:

(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 or[,] cancelled[~~, or retired~~].

SECTION 2.04. Section 1.19(b), Chapter 626, Acts of the

73rd Legislature, Regular Session, 1993, is amended to read as

follows:

(b) Withdrawal of water under a term permit must be

consistent with the authority's critical period management plan

established under Section 1.26 of this article. A holder of a term

permit may not withdraw water from the San Antonio pool of the

aquifer unless:

(1) the level of the aquifer is higher than 675 [~~665~~]

feet above sea level, as measured at Well J-17;

(2) the flow at Comal Springs as determined by Section

1.26(c) of this article is greater than 350 cubic feet per second;

and

(3) the flow at San Marcos Springs as determined by

Section 1.26(c) of this article is greater than 200 cubic feet per

second.

SECTION 2.05. Section 1.22(a), Chapter 626, Acts of the

73rd Legislature, Regular Session, 1993, is amended to read as

follows:

(a) The authority may acquire permitted rights to use water

from the aquifer for the purposes of:

(1) holding those rights in trust for sale or transfer

of the water or the rights to persons within the authority's

jurisdiction who may use water from the aquifer;

(2) holding those rights in trust as a means of

managing overall demand on the aquifer; or

(3) holding those rights for resale [~~or retirement as~~

~~a means of complying with pumping reduction requirements under this~~

~~article; or~~

[~~(4)~~ ~~retiring those rights, including those rights~~

~~already permitted~~].

SECTION 2.06. Article 1, Chapter 626, Acts of the 73rd

Legislature, Regular Session, 1993, is amended by amending Section

1.26 and adding Section 1.26A to read as follows:

Sec. 1.26. CRITICAL PERIOD MANAGEMENT PLAN. (a) After

review of the recommendations received in the program document, as

prescribed by Section 1.26A of this article, the [~~The~~] authority by

rule shall adopt [~~prepare and coordinate implementation of~~] a [~~plan~~

~~for~~] critical period management plan consistent with Sections

1.14(a), (f), and (h) of this article [~~on or before September 1,~~

~~1995~~]. The critical period management plan shall be adopted by the

authority no later than six months after the authority's receipt of

the program document. On adoption of the critical period

management plan, the authority shall provide a written report to

the governor, lieutenant governor, and speaker of the house of

representatives describing the actions taken in response to each

recommendation and, for each recommendation not implemented, the

reason it was not implemented. The plan [~~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;

(D) recreational and pleasure; and

(E) other uses that are authorized by law; and

(5) allow irrigation use to continue in order to

permit the user to complete the irrigation of a crop in progress.

(b) In this section, "MSL" means the elevation above mean

sea level, measured in feet, of the surface of the water in a well,

and "CFS" means cubic feet per second. Not later than January 1,

2008, the authority shall, by rule, adopt and enforce a critical

period management plan with withdrawal reduction percentages in the

amounts indicated in Tables 1 and 2 whether according to the index

well levels or the Comal or San Marcos Springs flow as applicable,

for a total in critical period Stage IV of 40 percent of the

permitted withdrawals under Table 1 and 35 percent under Table 2:

TABLE 1

CRITICAL PERIOD WITHDRAWAL REDUCTION STAGES

FOR THE SAN ANTONIO POOL

Comal

San Marcos Springs Flow cfs

Index Well J-17 Level MSL

Critical Period Stage

Withdrawal Reduction- San Antonio Pool

Springs Flow

San Marcos Springs Flow cfs

Index Well J-17 Level MSL

Critical Period Stage

Withdrawal Reduction- San Antonio Pool

cfs

San Marcos Springs Flow cfs

Index Well J-17 Level MSL

Critical Period Stage

Withdrawal Reduction- San Antonio Pool

225

<96

<660

20%

200

<80

<650

30%

150

N/A

<640

III

35%

100

N/A

<630

40%

TABLE 2

CRITICAL PERIOD WITHDRAWAL REDUCTION STAGES

FOR THE UVALDE POOL

Withdrawal Reduction-Uvalde Pool

Index Well J-27 Level MSL

Critical Period Stage

N/A

---

<850

20%

<845

III

35%

<842

withdrawal reduction percentages is triggered if the 10-day average

of daily springflows at the Comal Springs or the San Marcos Springs

or the 10-day average of daily aquifer levels at the J-17 Index Well

drops below the lowest number of any of the trigger levels indicated

in Table 1. A change to a critical period stage with lower

withdrawal reduction percentages is triggered only when the 10-day

average of daily springflows at the Comal Springs and the San Marcos

Springs and the 10-day average of daily aquifer levels at the J-17

Index Well are all above the same stage trigger level. The

authority may adjust the withdrawal percentages for Stage IV in

Tables 1 and 2 if necessary in order to comply with Subsection (d)

or (e) of this section.

(d) Beginning September 1, 2007, the authority may not

require the volume of permitted withdrawals to be less than an

annualized rate of 340,000 acre-feet, under critical period Stage

IV.

(e) After January 1, 2013, the authority may not require the

volume of permitted withdrawals to be less than an annualized rate

of 320,000 acre-feet, under critical period Stage IV unless, after

review and consideration of the recommendations provided under

Section 1.26A of this article, the authority determines that a

different volume of withdrawals is consistent with Sections

1.14(a), (f), and (h) of this article in maintaining protection for

federally listed threatened and endangered species associated with

the aquifer to the extent required by federal law.

(f) Notwithstanding Subsections (d) and (e) of this

section, the authority may require further withdrawal reductions

before reviewing and considering the recommendations provided

under Section 1.26A of this article if the discharge of Comal

Springs or San Marcos Springs declines an additional 15 percent

after Stage IV withdrawal reductions are imposed under Subsection

(b) of this section. This subsection expires on the date that

critical period management plan rules adopted by the authority

based on the recommendations provided under Section 1.26A of this

article take effect.

(g) Notwithstanding the existence of any stage of an interim

or final critical period adopted by the authority under this

section, a person authorized to withdraw groundwater from the

aquifer for irrigation purposes shall, without regard to the

withdrawal reductions prescribed for that stage, be allowed to

finish a crop already planted in the calendar year during which the

critical period is in effect.

Sec. 1.26A. DEVELOPMENT OF WITHDRAWAL REDUCTION LEVELS AND

STAGES FOR CRITICAL PERIOD MANAGEMENT THROUGH RECOVERY

IMPLEMENTATION PROGRAM. (a) The authority, with the assistance of

Texas A&M University, shall cooperatively develop a recovery

implementation program through a facilitated, consensus-based

process that involves input from the United States Fish and

Wildlife Service, other appropriate federal agencies, and all

interested stakeholders, including those listed under Subsection

(e)(1) of this section. The recovery implementation program shall

be developed for the species that are:

(1) listed as threatened or endangered species under

federal law; and

(2) associated with the aquifer.

(b) The authority shall enter into a memorandum of agreement

with the United States Fish and Wildlife Service, other appropriate

federal agencies, the Texas Commission on Environmental Quality,

the Parks and Wildlife Department, the Department of Agriculture,

the Texas Water Development Board, and other stakeholders, not

later than December 31, 2007, in order to develop a program document

that may be in the form of a habitat conservation plan used in

issuance of an incidental take permit as outlined in Subsection (d)

of this section.

agreement with the United States Fish and Wildlife Service, other

appropriate federal agencies, the Texas Commission on

Environmental Quality, the Parks and Wildlife Department, the

Department of Agriculture, the Texas Water Development Board, and

other stakeholders to develop a program document that may be in the

form of a habitat conservation plan used in issuance of an

incidental take permit as outlined in Subsection (d) of this

section not later than December 31, 2009.

(d) The authority, the Texas Commission on Environmental

Quality, the Parks and Wildlife Department, the Department of

Agriculture, the Texas Water Development Board, and other

stakeholders shall jointly prepare a program document that may be

in the form of a habitat conservation plan used in issuance of an

incidental take permit with the United States secretary of the

interior, through the United States Fish and Wildlife Service and

other appropriate federal agencies, under Section 4 or Section 6,

Endangered Species Act of 1973 (16 U.S.C. Section 1533 or 1535), as

applicable, based on the program developed under Subsection (a) of

this section. The program document shall:

(1) provide recommendations for withdrawal

adjustments based on a combination of spring discharge rates of the

San Marcos and Comal Springs and levels at the J-17 and J-27 wells

during critical periods to ensure that federally listed,

threatened, and endangered species associated with the Edwards

Aquifer will be protected at all times, including throughout a

repeat of the drought of record;

(2) include provisions to pursue cooperative and grant

funding to the extent available from all state, federal, and other

sources for eligible programs included in the cooperative agreement

under Subsection (c) of this section, including funding for a

program director; and

(3) be approved and executed by the authority, the

Texas Commission on Environmental Quality, the Parks and Wildlife

Department, the Department of Agriculture, the Texas Water

Development Board, and the United States Fish and Wildlife Service

not later than September 1, 2012, and the agreement shall take

effect December 31, 2012.

(e) Texas A&M University shall assist in the creation of a

steering committee to oversee and assist in the development of the

cooperative agreement under Subsection (c) of this section. The

steering committee must be created not later than September 30,

2007. The initial steering committee shall be composed of:

(1) a representative of each of the following

entities, as appointed by the governing body of that entity:

(A) the Edwards Aquifer Authority;

(B) the Texas Commission on Environmental

Quality;

(D) the Department of Agriculture;

(E) the Texas Water Development Board;

(F) the San Antonio Water System;

(G) the Guadalupe-Blanco River Authority;

(H) the San Antonio River Authority;

(I) the South Central Texas Water Advisory

Committee;

(J) Bexar County;

(K) CPS Energy; and

(L) Bexar Metropolitan Water District or its

successor; and

(2) nine other persons who respectively must be:

(A) a representative of a holder of an initial

regular permit issued to a retail public utility located west of

Bexar County, to be appointed by the authority;

(B) a representative of a holder of an initial

regular permit issued by the authority for industrial purposes, to

be appointed by the authority;

surface water right in the Guadalupe River Basin, to be appointed by

the Texas Commission on Environmental Quality;

(D) a representative of a holder of a municipal

surface water right in the Guadalupe River Basin, to be appointed by

the Texas Commission on Environmental Quality;

(E) a representative of a retail public utility

in whose service area the Comal Springs or San Marcos Springs is

located;

(F) a representative of a holder of an initial

regular permit issued by the authority for irrigation, to be

appointed by the commissioner of agriculture;

(G) a representative of an agricultural producer

from the Edwards Aquifer region, to be appointed by the

commissioner of agriculture;

(H) a representative of environmental interests

from the Texas Living Waters Project, to be appointed by the

governing body of that project; and

(I) a representative of recreational interests

in the Guadalupe River Basin, to be appointed by the Parks and

Wildlife Commission.

(f) The steering committee shall work with Texas A&M

University to:

(1) establish a regular meeting schedule and publish

that schedule to encourage public participation; and

(2) not later than October 31, 2007, hire a program

director to be housed at Texas A&M University.

(g) Texas A&M University may accept outside funding to pay

the salary and expenses of the program director hired under this

section and any expenses associated with the university's

participation in the creation of the steering committee or

subcommittees established by the steering committee.

(h) Where reasonably practicable or as required by law, any

meeting of the steering committee, the Edwards Aquifer area expert

science subcommittee, or another subcommittee established by the

steering committee must be open to the public.

(i) The steering committee appointed under this section

shall appoint an Edwards Aquifer area expert science subcommittee

not later than December 31, 2007. The expert science subcommittee

must be composed of an odd number of not fewer than seven or more

than 15 members who have technical expertise regarding the Edwards

Aquifer system, the threatened and endangered species that inhabit

that system, springflows, or the development of withdrawal

limitations. The Bureau of Economic Geology of The University of

Texas at Austin and the River Systems Institute at Texas State

University shall assist the expert science subcommittee. Chapter

2110, Government Code, does not apply to the size, composition, or

duration of the expert science subcommittee.

(j) The Edwards Aquifer area expert science subcommittee

shall, among other things, analyze species requirements in relation

to spring discharge rates and aquifer levels as a function of

recharge and withdrawal levels. Based on that analysis and the

elements required to be considered by the authority under Section

1.14 of this article, the expert science subcommittee shall,

through a collaborative process designed to achieve consensus,

develop recommendations for withdrawal reduction levels and stages

for critical period management including, if appropriate,

establishing separate and possibly different withdrawal reduction

levels and stages for critical period management for different

pools of the aquifer needed to maintain target spring discharge and

aquifer levels. The expert science subcommittee shall submit its

recommendations to the steering committee and all other

stakeholders involved in the recovery implementation program under

this section.

(k) The initial recommendations of the Edwards Aquifer area

expert science subcommittee must be completed and submitted to the

steering committee and other stakeholders not later than December

31, 2008, and should include an evaluation:

(1) of the option of designating a separate San Marcos

pool, of how such a designation would affect existing pools, and of

the need for an additional well to measure the San Marcos pool, if

designated;

(2) of the necessity to maintain minimum springflows,

including a specific review of the necessity to maintain a flow to

protect the federally threatened and endangered species; and

(3) as to whether adjustments in the trigger levels

for the San Marcos Springs flow for the San Antonio pool should be

made.

(l) In developing its recommendations, the Edwards Aquifer

area expert science subcommittee shall:

(1) consider all reasonably available science,

including any Edwards Aquifer-specific studies, and base its

recommendations solely on the best science available; and

(2) operate on a consensus basis to the maximum extent

possible.

(m) After development of the cooperative agreement, the

steering committee, with the assistance of the Edwards Aquifer area

expert science subcommittee and with input from the other recovery

implementation program stakeholders, shall prepare and submit

recommendations to the authority. The recommendations must:

(1) include a review of the critical period management

plan, to occur at least once every five years;

(2) include specific monitoring, studies, and

activities that take into account changed conditions and

information that more accurately reflects the importance of

critical period management; and

(3) establish a schedule for continuing the validation

or refinement of the critical period management plan adopted by the

authority and the strategies to achieve the program and cooperative

agreement described by this section.

(n) In this subsection, "recharge facility" means a dam,

reservoir, or other method of recharge project and associated

facilities, structures, or works but does not include facilities

designed to recirculate water at Comal or San Marcos Springs. The

steering committee shall establish a recharge facility feasibility

subcommittee to:

(1) assess the need for the authority or any other

entity to own, finance, design, construct, operate, or maintain

recharge facilities;

(2) formulate plans to allow the authority or any

other entity to own, finance, design, construct, operate, or

maintain recharge facilities;

(3) make recommendations to the steering committee as

to how to calculate the amount of additional water that is made

available for use from a recharge project including during times of

critical period reductions;

(4) maximize available federal funding for the

authority or any other entity to own, finance, design, construct,

operate, or maintain recharge facilities; and

(5) evaluate the financing of recharge facilities,

including the use of management fees or special fees to be used for

purchasing or operating the facilities.

(o) The steering committee may establish other

subcommittees as necessary, including a hydrology subcommittee, a

community outreach and education subcommittee, and a water supply

subcommittee.

(p) On execution of the memorandum of agreement described by

Subsection (b) of this section, the steering committee described by

Subsection (e) of this section may, by majority vote of its members,

vote to add members to the steering committee, change the makeup of

the committee, or dissolve the committee. If the steering

committee is dissolved, the program director hired under Subsection

(f) of this section shall assume the duties of the steering

committee.

(q) The authority shall provide an annual report to the

governor, lieutenant governor, and speaker of the house of

representatives not later than January 1 of each year that details:

(1) the status of the recovery implementation program

development process;

(2) the likelihood of completion of the recovery

implementation program and the cooperative agreement described by

Subsection (c) of this section;

(3) the extent to which the recommendations of the

Edwards Aquifer area expert science subcommittee are being

considered and implemented by the authority;

(4) any other actions that need to be taken in response

to each recommendation;

(5) reasons explaining why any recommendation

received has not been implemented; and

(6) any other issues the authority considers of value

for the efficient and effective completion of the program and the

cooperative agreement under this section.

SECTION 2.07. Sections 1.29(b), (h), and (i), Chapter 626,

Acts of the 73rd Legislature, Regular Session, 1993, are amended to

read as follows:

(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. 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.

(h) Fees assessed by the authority may not be used to fund

the cost of reducing withdrawals or retiring permits or of

judgments or claims related to withdrawals or permit retirements

[~~Special fees collected under Subsection (c) or (d) of this section~~

~~may not be used to finance a surface water supply reservoir~~

~~project~~].

(i) The authority and other stakeholders, including state

agencies, listed under Section 1.26A of this article shall provide

money as necessary[~~, but not to exceed five percent of the money~~

~~collected under Subsection (d) of this section,~~] to finance the

activities of the steering committee and any subcommittees

appointed by the steering committee and the program director of the

recovery implementation program under Section 1.26A of this

article. The authority shall provide, as necessary, up to $75,000

annually, adjusted for changes in the consumer price index, to

finance the South Central Texas Water Advisory Committee's

administrative expenses and programs authorized under this

article.

SECTION 2.08. 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, and the recharge project is

not designed to recirculate water at Comal or San Marcos Springs.

SECTION 2.09. Sections 1.14(b) and (d), Section 1.21, and

Sections 1.29(a), (c), and (d), Chapter 626, Acts of the 73rd

Legislature, Regular Session, 1993, are repealed.

SECTION 2.10. (a) Before January 1, 2012, a suit may not be

instituted in a state court contesting:

(1) the validity or implementation of this article; or

(2) the groundwater withdrawal amounts recognized in

Section 2.02 of this Act.

(b) If applicable, a party that files a suit in any court

shall be automatically removed from the steering committee

established under Section 1.26A, Chapter 626, Acts of the 73rd

Legislature, Regular Session, 1993, as added by this article.

instituted or maintained by a person who owns, holds, or uses a

surface water right and claims injury or potential injury to that

right for any reason, including any actions taken by the Edwards

Aquifer Authority to implement or enforce Article 1, Chapter 626,

Acts of the 73rd Legislature, Regular Session, 1993, as amended.

This section does not apply to suits brought pursuant to Section

1.45, Chapter 626, Acts of the 73rd Legislature, Regular Session,

1993.

SECTION 2.11. The change in law made by this article applies

only to a cause of action filed on or after the effective date of

this article. A cause of action that is filed before the effective

date of this article is governed by the law in effect immediately

before the effective date of this article, and that law is continued

in effect for that purpose.

SECTION 2.12. This article takes effect immediately if this

Act 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 article takes effect September 1, 2007.

ARTICLE 3. EFFECTIVE DATE

SECTION 3.01. Except as otherwise provided by this Act,

this Act takes effect September 1, 2007.

______________________________

President of the Senate

Speaker of the House

I certify that H.B. No. 3 was passed by the House on March 1,

2007, by the following vote: Yeas 142, Nays 1, 1 present, not

voting; that the House refused to concur in Senate amendments to

H.B. No. 3 on May 25, 2007, and requested the appointment of a

conference committee to consider the differences between the two

houses; and that the House adopted the conference committee report

on H.B. No. 3 on May 28, 2007, by the following vote: Yeas 142,

Nays 2, 2 present, not voting.

______________________________

Chief Clerk of the House

I certify that H.B. No. 3 was passed by the Senate, with

amendments, on May 23, 2007, by the following vote: Yeas 30, Nays

0; at the request of the House, the Senate appointed a conference

committee to consider the differences between the two houses; and

that the Senate adopted the conference committee report on H.B. No.

3 on May 28, 2007, by the following vote: Yeas 30, Nays 0.

______________________________

Secretary of the Senate

APPROVED: __________________

Date

__________________

Governor