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A BILL TO BE ENTITLED
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AN ACT
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relating to the establishment of a procedure for authorizing the |
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beneficial use or reuse of certain water. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 11.002, Water Code, is amended by |
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amending Subdivisions (5) and (10) and by adding Subdivisions (15) |
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through (22) to read as follows: |
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(5) "Water right" means a right acquired under the |
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laws of this state to impound, divert, or use state water or a right |
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to reuse municipal return flows acquired under section 11.0462 of |
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this chapter. |
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(10) "Surplus water" means water in excess of the |
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initial or continued beneficial use of the appropriator or |
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authorized indirect reuse, that is not reserved for instream flows |
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or freshwater inflows. |
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(15) "Imported water" means state water that has been |
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imported to the river basin of use under a permit issued under |
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Section 11.085 or state water that has been imported from any source |
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outside the boundaries of the state. |
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(16) "Discharger" for purposes of this chapter means: |
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(A) the owner of a municipal wastewater treatment |
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plant; or |
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(B) a municipality who has contracted with the |
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owner of a municipal wastewater treatment plant for wastewater |
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treatment services where such contract assigns ownership of the |
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municipal return flows to the municipality; |
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(C) the person who holds the water right for the |
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water from which municipal return flows are derived, if the person |
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who holds the water right and the municipality or owner of the |
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municipal wastewater treatment plant from which the municipal |
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return flows are derived have entered into a contract that assigns |
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ownership of the municipal return flows to the water right holder. |
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(17) "Direct reuse" means the beneficial use of: (1) |
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municipal wastewater or industrial wastewater or process water that |
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is under the direct control of a treatment plant owner or operator |
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or industrial facility, or (2) agricultural tailwater, before such |
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wastewater, process water or tailwater is either disposed of, |
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discharged, or otherwise allowed to flow into a watercourse, lake, |
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or other body of state water. |
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(18) "Indirect reuse" means the diversion of water |
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from a watercourse, lake, or other body of state water, for |
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beneficial use, of a quantity of water that can be attributed to a |
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specific quantity of return flows originating upstream of the |
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diversion point. |
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(19) "Return flows" means municipal wastewater or |
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industrial wastewater or process water, or agricultural tailwater, |
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that has been disposed of, discharged, or otherwise allowed to flow |
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into a watercourse, lake, or other body of state water. |
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(20) "Municipal return flows" means return flows |
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derived from municipal wastewater. |
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(21) "Existing municipal return flows" means the |
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volume of municipal return flows derived from: |
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(A) surface water that has been authorized to be |
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appropriated under a water right issued before September 1, 2007; |
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or |
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(B) groundwater brought to the surface through |
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artificial means before September 1, 2007. |
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(22) "Future municipal return flows" means the volume |
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of municipal return flows derived from: |
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(A) surface water that has been authorized to be |
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appropriated under a water right issued on or after September 1, |
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2007; or |
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(B) groundwater brought to the surface through |
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artificial means on or after September 1, 2007. |
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SECTION 2. Section 11.021, Water Code, is amended to read as |
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follows: |
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Sec. 11.021. STATE WATER. (a) The water of the ordinary |
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flow, underflow, and tides of every flowing river, natural stream, |
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and lake, and of every bay or arm of the Gulf of Mexico, and the |
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storm water, floodwater, and rainwater of every river, natural |
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stream, canyon, ravine, depression, and watershed in the state, and |
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of any return flows derived from state water, is the property of the |
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state. |
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(b) Water imported from any source outside the boundaries of |
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the state for use in the state, together with any return flows |
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derived from imported water, that [and which] is transported |
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through the beds and banks of any navigable stream within the state |
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or by utilizing any facilities owned or operated by the state is the |
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property of the state. |
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SECTION 3. The heading to Section 11.042, Water Code, is |
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amended to read as follows: |
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Sec. 11.042. DELIVERING WATER DOWN BANKS AND BEDS; STORED |
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WATER, INTRABASIN CONVEYANCE, IMPORTED WATER, AND GROUNDWATER. |
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SECTION 4. Section 11.042, Water Code, is amended by |
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amending Subsections (a), (b), (c), and (d) and adding Subsections |
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(e), (f) and (h) to read as follows: |
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(a) With prior authorization granted [U]under rules |
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prescribed by the commission, a person[, association of persons,
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corporation, water control and improvement district, water
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improvement district, or irrigation district supplying stored or
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conserved water under contract as provided in this chapter] may use |
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the bed and bank [and bed] of any flowing natural stream in the |
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state to convey [the diverted or stored water from the place of |
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authorized diversion or storage to [the] another place of |
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authorized use, [or to the] diversion, or storage within the same |
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river basin[point of the appropriator]. Such authorization must |
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allow for the storage or diversion of the amount of water to be |
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conveyed, less carriage losses. |
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(b) A person who wishes to use the bed and bank of a flowing |
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natural stream to convey and subsequently divert imported water or |
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groundwater that has been brought to the surface by artificial |
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means [discharge and then subsequently divert and reuse the
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person's existing return flows derived from privately owned
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groundwater] must obtain prior authorization from the commission |
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under this section [for the diversion and the reuse of these return
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flows]. The Commission shall authorize [authorization may allow
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for] the diversion of the amount of imported water or groundwater to |
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be conveyed[and reuse by the discharger of existing return flows], |
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less carriage losses[, and shall be subject to special conditions
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if necessary to protect an existing water right that was granted
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based on the use or availability of these return flows. Special
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conditions may also be provided to help maintain instream uses and
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freshwater inflows to bays and estuaries. A person wishing to
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divert and reuse future increases of return flows derived from
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privately owned groundwater must obtain authorization to reuse
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increases in return flows before the increase]. |
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(c) A person may not convey water [Except as otherwise
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provided in Subsection (a) of this section, a person who wishes to
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convey and subsequently divert water in a watercourse or stream
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must obtain the prior approval of the commission through a bed and
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banks authorization. The authorization shall allow to be diverted
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only the amount of water put into a watercourse or stream, less
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carriage losses and subject to any special conditions that may
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address the impact of the discharge, conveyance, and diversion on
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existing permits, certified filings, or certificates of
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adjudication, instream uses, and freshwater inflows to bays and
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estuaries. Water discharged] into a watercourse or stream under |
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this chapter if the conveyance would [shall not] cause a |
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degradation of water quality below the water quality standards |
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applicable to the [extent that the] stream segment(s) through which |
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the water will be conveyed['s classification would be lowered]. |
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(d) Authorizations under this section and water quality |
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authorizations may be approved in a consolidated permit proceeding. |
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(e) Water conveyed through the bed and banks of a natural |
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stream under this section is not subject to the prior appropriation |
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system in the basin where the conveyance occurs and is not subject |
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to priority call by existing water right holders within the basin of |
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conveyance authorized under this section. |
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(f) A person seeking authorization under this section must |
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develop, submit, and implement a water conservation plan consistent |
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with requirements of section 11.1271 of this Code. |
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(g) [(d)] Nothing in this section shall be construed to |
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affect an existing project for which water rights [and
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reuse]authorizations have been granted by the commission before |
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September 1, 2007 [1997]. |
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(h) Nothing in this section shall be construed to affect the |
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requirements to obtain an interbasin transfer authorization under |
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Section 11.085 of this code. |
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SECTION 5. Section 11.046, Water Code, is amended by |
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amending Subsection (c) and adding Subsection (c-1) to read as |
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follows: |
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(c) Except as specifically provided otherwise in the water |
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right, water appropriated under a permit, certified filing, or |
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certificate of adjudication may, prior to its release into a |
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watercourse or stream, be beneficially used and directly reused by |
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the holder of a permit, certified filing, or certificate of |
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adjudication for the purposes and locations of use provided in the |
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permit, certified filing, or certificate of adjudication, without |
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further authorization from the commission under this chapter. |
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Except for water reserved for instream uses or freshwater inflows |
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under Section 11.0461, return flows from [Once] water that has been |
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diverted under a permit, certified filing, or certificate of |
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adjudication are [and then returned to a watercourse or stream,
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however, it is] considered surplus water and therefore subject [to
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reservation for instream uses or beneficial inflows or] to |
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appropriation [by others] unless expressly provided otherwise in |
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the permit, certified filing, or certificate of adjudication. |
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(c-1) Notwithstanding Subsection (c), municipal return |
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flows authorized for indirect reuse under Section 11.0462 are |
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considered surplus water only until the indirect reuse has been |
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implemented and may be appropriated by others only on a term or |
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temporary basis. |
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SECTION 6. Subchapter B, Chapter 11, Water Code, is amended |
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by adding Sections 11.0461 and 11.0462 to read as follows: |
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Sec. 11.0461. RESERVATION OF MUNICIPAL RETURN FLOWS FOR |
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INSTREAM FLOWS AND FRESHWATER INFLOWS. |
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(a) Before the commission may authorize the indirect reuse |
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of municipal return flows under Section 11.0462, the commission by |
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rule shall reserve to the state five percent of municipal return |
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flows for the purpose of maintaining instream flows and freshwater |
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inflows to bays and estuaries, or such other amount as the |
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commission may establish under Subsection (b). |
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(b) The commission by rule may reserve a portion of |
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municipal return flows in a particular river basin in amounts that |
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are less than the applicable percentages provided by Subsection (a) |
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if the commission determines that the reservation of a lesser |
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portion of those flows is sufficient to maintain instream flows and |
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freshwater inflows to bays and estuaries in the basin. |
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(c) The municipal return flows reserved under this section |
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are not subject to the prior appropriation system and are not |
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subject to priority call by existing water right holders. |
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Sec. 11.0462. INDIRECT REUSE OF WATER. (a) A discharger |
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must obtain authorization from the commission to indirectly reuse |
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municipal return flows under this section. An authorization for |
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indirect reuse and a discharge permit or permit amendment or |
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renewal under Chapter 26 may be obtained in a consolidated permit |
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proceeding. |
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(b) Except as provided by Subsections (c) and (d), an |
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authorization for indirect reuse that is granted under this section |
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shall authorize a discharger to indirectly reuse a portion of |
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municipal return flows not to exceed: |
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(1) fifty percent, less carriage losses, in the case |
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of existing and future municipal return flows derived from surface |
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water that originates in the river basin where the return flows are |
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discharged; |
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(2) seventy percent, less carriage losses, in the case |
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of existing and future municipal return flows derived from imported |
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water; |
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(3) fifty percent, less carriage losses, for existing |
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municipal return flows derived from groundwater that has been |
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brought to the surface through artificial means; and |
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(4) seventy percent, less carriage losses, for future |
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municipal return flows derived from groundwater that has been |
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brought to the surface through artificial means. |
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(c) In addition to the other limitations provided by this |
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section on the quantities of municipal return flows that may be |
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authorized for indirect reuse, the commission shall include |
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conditions in the authorization that: |
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(1) are necessary to ensure that the indirect reuse |
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does not cause a degradation of water quality to the extent that the |
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stream segment's classification would be lowered; |
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(2) restrict the indirect reuse to such quantities and |
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in such locations as are reasonably necessary to meet either of the |
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following: |
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(A) the discharger's own water supply needs for |
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municipal or electrical generation purposes, if such need is |
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located within: |
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(i) the river basin where the return flows |
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would otherwise be discharged, or |
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(ii) an area covered by an interbasin |
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transfer permit held by the discharger under section 11.085 of this |
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chapter. |
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(B) if the discharger does not hold the |
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underlying water right from which the return flows are derived, an |
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identified water supply need in the service area of the holder of |
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the underlying water right from which the return flows are derived |
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if: |
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(i) the water supply need to be met is for a |
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person other than the discharger, and |
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(ii) the water cannot otherwise be supplied |
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by the water right holder from which the return flows are derived. |
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(3) are necessary to protect existing water rights |
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that expressly authorize the appropriation of the municipal return |
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flows for which the particular indirect reuse authorization is |
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sought; |
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(4) requires the applicant to comply with a daily |
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accounting plan, which shall be developed and approved prior to the |
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issuance of the authorization, and which ensures the indirect reuse |
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by the applicant will be limited by the amount of available return |
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flows actually discharged and authorized for indirect reuse, |
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subject to: |
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(A) the reservation of return flows under Section |
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11.0461; |
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(B) a deduction for carriage losses between the |
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point of discharge and the point of diversion that reflects actual |
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hydrologic conditions at the time of any indirect reuse; and |
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(C) any other applicable limitation on the amount |
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permitted to be diverted and reused, including any limitation |
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contained in the authorization in accordance with this subsection |
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and subsection (d); |
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(5) requires the implementation of an approved water |
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conservation plan that is consistent with requirements of section |
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11.1271 of this Code; and |
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(6) allows the Commission, upon the adoption of rules |
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under subsection (d)(2) of this section, to increase or further |
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restrict the amount of municipal return flows authorized for reuse |
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by no more than fifteen percent of the total municipal return flows. |
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(d) The commission by rule shall adjust the amount of |
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indirect reuse of municipal return flows otherwise authorized under |
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subsection (c) of this section to address regional agreements and |
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impacts on existing water rights as required by this subsection. |
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(1) In recognition of the varying hydrologic |
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conditions and water supply needs of each river basin in this state, |
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it is the intent of the Legislature to allow the implementation of |
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local or regional agreements that would allow indirect reuse of |
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municipal return flows in amounts that differ from the applicable |
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percentages provided by subsections (b) and (c) in limited |
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circumstances. Specifically, the commission shall adopt by rule |
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changes to the applicable percentages of authorized indirect reuse |
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where such indirect reuse would be implemented as part of a |
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cooperative agreement between water right holders who hold water |
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rights to greater than seventy percent of the water within a basin |
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and dischargers whose return flows comprise more than seventy |
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percent of return flows in a particular river basin. If included in |
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such agreements, the commission shall include in its rules a |
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reservation of municipal return flows to meet instream flow or |
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freshwater inflow needs in excess of the amounts reserved under |
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Section 11.0461. |
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(2) To address the potential impact on existing water |
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rights holders of indirect municipal reuse, the commission shall |
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adopt rules on or before March 1, 2009 that adjust the authorized |
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indirect municipal reuse that may be allowed under subsections (b) |
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and (c) on a basin specific basis, where the studies conducted under |
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subsection (e) indicate that the adjustments will ensure that the |
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period reliability of any existing water right will not be reduced |
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by more than ten percent as compared to its period reliability based |
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on the maximum usage conditions over the last ten years. |
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(e) To address the potential impact on existing water rights |
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holders of indirect municipal reuse, the commission shall, on or |
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before September 1, 2008, evaluate, quantify, and specifically |
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identify, through a peer-reviewed process, the effects on indirect |
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municipal reuse on the period reliability of existing water rights, |
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as such have existed and been used over the last ten years, based |
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on: |
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(1) the percent of indirect reuse authorized by |
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subsection (b) of this section; |
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(2) a reduction of reuse by no more than fifteen |
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percent of the municipal return flows below those amounts |
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authorized in subsection (b); and |
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(3) an increase in indirect reuse by no more than an |
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additional fifteen percent of the municipal return flows over those |
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amounts authorized in subsection (b). |
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(f) In considering an application for an authorization for |
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indirect reuse, the commission shall follow the requirements of |
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Section 11.134 except that it shall not: |
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(1) determine whether unappropriated water is |
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available in the source of supply; |
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(2) evaluate the effects the proposed reuse may have |
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on: |
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(A) the public welfare; or |
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(B) existing water rights or vested riparian |
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rights, except as allowed under subsection (c)(3) or (d)(2) of this |
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section; or |
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(3) consider the assessments performed under Sections |
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11.147(d) and (e), 11.150, 11.151, and 11.152, except as necessary |
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to address water quality effects under Subsection (c)(1) of this |
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section. |
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(g) Municipal return flows authorized for indirect reuse |
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are not subject to the prior appropriation system and are not |
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subject to priority call by existing water right holders. |
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(h) The commission shall, on or before by March 1, 2008, |
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adopt rules to implement a process for the expedited review and |
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action on requests for indirect reuse authorizations under |
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subsection (b). |
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(i) This section does not affect a reuse |
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authorization granted by the commission before September 1, 2007, |
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nor any amendments to such authorizations that do not increase the |
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amount of water authorized to be reused. A person who filed an |
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application to engage in indirect reuse of municipal return flows |
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prior to September 1, 2007, may elect to have the application |
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considered under the law in existence at the time the application |
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was filed or to have the application considered under this section. |
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SECTION 7. This Act takes effect September 1, 2007. |