By: Hegar S.B. No. 1714

A BILL TO BE ENTITLED

AN ACT

relating to evidence of beneficial use and other matters in connection with the issuance of permits by a groundwater conservation district in accordance with its management plan.

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

SECTION 1. Section 36.001, Water Code, is amended by adding Subdivision (28-a) to read as follows:

(28-a) "Evidence of beneficial use" means evidence that is material and relevant to a determination of the amount of groundwater that is reasonable for a beneficial use without waste proposed by a permit applicant consistent with generally accepted agriculture or industry standards for the proposed type of use and does not exclude innovations in conservation in agriculture or industry practices. Evidence of beneficial use that satisfies the requirements of Subdivision (9)(C) includes evidence that may be in the form of a:

(A) statutory requirement applicable to an applicant who is a supplier of water to the public to provide continuous and adequate water service consistent with the state water plan; or

(B) contractual obligation applicable to the applicant for the use of the water based on a demonstrated need for the water by an end user.

SECTION 2. Subsection (a), Section 36.1071, Water Code, is amended to read as follows:

(a) Following notice and hearing, the district shall, in coordination with surface water management entities on a regional basis, develop a comprehensive management plan which addresses the following management goals, as applicable:

(1) providing the most efficient use of groundwater;

(2) controlling and preventing waste of groundwater;

(3) controlling and preventing subsidence;

(4) addressing conjunctive surface water management issues;

(5) addressing natural resource issues;

(6) addressing drought conditions;

(7) addressing conservation, recharge enhancement, rainwater harvesting, precipitation enhancement, or brush control, where appropriate and cost-effective; [and]

(8) addressing in a quantitative manner the desired future conditions of the groundwater resources; and

(9) addressing the ability of the district's groundwater resources to meet the future water supply needs of the district.

SECTION 3. Subsection (g), Section 36.1072, Water Code, is amended to read as follows:

(g) In this subsection, "development board" means the Texas Water Development Board. A person with a legally defined interest in groundwater in a district or in the management area in which a district is located or a [the] regional water planning group located in the management area may file a petition with the development board stating that a conflict requiring resolution may exist between the district's approved management plan developed under Section 36.1071 and the state water plan. If a conflict exists, the development board shall provide technical assistance to and facilitate coordination between the involved person or regional water planning group and the district to resolve the conflict. Not later than the 45th day after the date the person or the regional water planning group files a petition with the development board, if the conflict has not been resolved, the district and the involved person or regional planning group may mediate the conflict. The district and the involved person or regional planning group may seek the assistance of the Center for Public Policy Dispute Resolution at The University of Texas School of Law or an alternative dispute resolution system established under Chapter 152, Civil Practice and Remedies Code, in obtaining a qualified impartial third party to mediate the conflict. The cost of the mediation services must be specified in the agreement between the parties and the Center for Public Policy Dispute Resolution or the alternative dispute resolution system. If the district and the involved person or regional planning group cannot resolve the conflict through mediation, the development board shall resolve the conflict not later than the 60th day after the date the mediation is completed. The development board action under this provision may be consolidated, at the option of the board, with related action under Section 16.053(p). If the development board determines that resolution of the conflict requires a revision of the approved groundwater conservation district management plan, the development board shall provide information to the district. The district shall prepare any revisions to the plan based on the information provided by the development board and shall hold, after notice, at least one public hearing at some central location within the district. The district shall consider all public and development board comments, prepare, revise, and adopt its plan, and submit the revised plan to the development board for approval. On the request of the district or the regional water planning group, the development board shall include discussion of the conflict and its resolution in the state water plan that the development board provides to the governor, the lieutenant governor, and the speaker of the house of representatives under Section 16.051(e). If the groundwater conservation district disagrees with the decision of the development board under this subsection, the district may appeal the decision to a district court in Travis County. Costs for the appeal shall be set by the court hearing the appeal. An appeal under this subsection is by trial de novo.

SECTION 4. Subsections (f) and (l), Section 36.108, Water Code, are amended to read as follows:

(f) A district, regional water planning group dependent on the groundwater resources in the groundwater management area, or person with a legally defined interest in the groundwater within the management area may file a petition with the commission requesting an inquiry if a district or districts refused to join in the planning process or the process failed to result in adequate planning, including the establishment of reasonable future desired conditions of the aquifers, and the petition provides evidence that:

(1) a district in the groundwater management area has failed to adopt rules;

(2) the rules adopted by a district are not designed to achieve the desired future condition of the groundwater resources in the groundwater management area established during the joint planning process;

(3) the groundwater in the management area is not adequately protected by the rules adopted by a district; or

(4) the groundwater in the groundwater management area is not adequately protected due to the failure of a district to enforce substantial compliance with its rules.

(l) A person with a legally defined interest in the groundwater in the groundwater management area, a district in or adjacent to the groundwater management area, or a regional water planning group [for a region] in the groundwater management area to meet a water management strategy identified in the adopted regional water plan may file a petition with the development board appealing the approval of the desired future conditions of the groundwater resources established under this section. The petition must provide evidence that the districts did not establish a reasonable desired future condition of the groundwater resources in the groundwater management area.

SECTION 5. Section 36.113, Water Code, is amended by adding Subsection (e-1) to read as follows:

(e-1) A district may not grant a permit unless the applicant provides evidence of an actual and reasonable beneficial use.

SECTION 6. Section 36.122, Water Code, is amended by amending Subsection (f) and adding Subsection (r) to read as follows:

(f) In reviewing a proposed transfer of groundwater out of the district, the district shall consider:

(1) the availability of water in the district and in the proposed receiving area during the period for which the water supply is requested;

(2) the projected effect of the proposed transfer on aquifer conditions, depletion, subsidence, or effects on existing permit holders or other groundwater users within the district; and

(3) the approved [regional water plan and certified] district management plan.

(r) A district may not grant a permit that allows the transfer of groundwater outside the district unless the applicant provides evidence of beneficial use as described by Section 36.001(28-a).

SECTION 7. Subsection (e-1), Section 36.113, Water Code, as added by this Act, and Section 36.122, Water Code, as amended by this Act, apply only to an application for a permit that is submitted to a groundwater conservation district on or after the effective date of this Act. An application submitted before the effective date of this Act is governed by the law in effect on the date the application was submitted, and that law continues in effect for that purpose.

SECTION 8. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.