By: Hegar  S.B. No. 1714
         (In the Senate - Filed March 10, 2009; March 20, 2009, read
  first time and referred to Committee on Natural Resources;
  April 30, 2009, reported adversely, with favorable Committee
  Substitute by the following vote:  Yeas 10, Nays 0; April 30, 2009,
  sent to printer.)
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1714 By:  Hegar
 
 
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 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 and this state as established in the adopted state water
  plan, including any water management strategy dependent on use of
  the district's groundwater resources.
         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
  dependent on a district's groundwater resources to meet a water
  management strategy identified in the adopted state water plan 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 (c), (f), and (l), Section 36.108,
  Water Code, are amended to read as follows:
         (c)  The presiding officer, or the presiding officer's
  designee, of each district located in whole or in part in the
  management area shall meet at least annually to conduct joint
  planning with the other districts in the management area and to
  review the management plans and accomplishments for the management
  area.  In reviewing the management plans, the districts shall
  consider:
               (1)  the goals of each management plan and its impact on
  planning throughout the management area and this state as
  established by the adopted state water plan;
               (2)  the effectiveness of the measures established by
  each management plan for conserving and protecting groundwater and
  preventing waste, and the effectiveness of these measures in the
  management area generally;
               (3)  any other matters that the boards consider
  relevant to the protection and conservation of groundwater and the
  prevention of waste in the management area; and
               (4)  the degree to which each management plan achieves
  the desired future conditions established during the joint planning
  process.
         (f)  A district, regional water planning group dependent on
  the groundwater resources in the groundwater management area to
  meet a water management strategy identified in the adopted state
  water plan, 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 dependent on the groundwater resources [for a
  region] in the groundwater management area to meet a water
  management strategy identified in the adopted state 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 beneficial use.
         SECTION 6.  Subchapter D, Chapter 36, Water Code, is amended
  by adding Section 36.1133 to read as follows:
         Sec. 36.1133.  PREPRODUCTION PERMITS. (a)  A district may
  adopt rules to authorize the issuance of a preproduction permit to
  an applicant if the applicant has met the requirements for a
  production permit but is unable to provide documentation of a need
  to supply water for a purpose included in an approved regional water
  plan.
         (b)  The term of a preproduction permit issued under this
  section must be five years.
         (c)  If, before the expiration of a preproduction permit, the
  holder of the permit provides to the district that issued the permit
  a copy of a water supply contract or other documentation of an
  obligation to supply water for a purpose included in an approved
  regional water plan, the district shall convert the preproduction
  permit to a production permit for that purpose and for the amount of
  production authorized by the preproduction permit.
         SECTION 7.  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 for municipal use
  unless the municipal use is established by a contractual obligation
  described by Section 36.001(28-a)(B).
         SECTION 8.  Subsection (e-1), Section 36.113, and Section
  36.1133, 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 9.  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.
 
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