| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
| |
|
|
relating to the vested ownership interest in groundwater beneath |
|
|
the surface of land, the right to produce that groundwater, and the |
|
|
management of groundwater in this state. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Section 36.001, Water Code, is amended by adding |
|
|
Subdivision (6-a) to read as follows: |
|
|
(6-a) "Landowner" means: |
|
|
(A) an owner of a possessory interest in the |
|
|
surface estate of real property; |
|
|
(B) any lessee or other person to whom a person |
|
|
described by Paragraph (A) has leased, granted, or conveyed either |
|
|
an ownership interest in or a groundwater production right to the |
|
|
groundwater below the surface of the real property, but only to the |
|
|
extent of the lease, grant, or conveyance; or |
|
|
(C) a successor in interest to a person described |
|
|
by Paragraph (A) or (B). |
|
|
SECTION 2. Subchapter A, Chapter 36, Water Code, is amended |
|
|
by adding Section 36.0011 to read as follows: |
|
|
Sec. 36.0011. FINDINGS. The legislature finds that the |
|
|
conservation, preservation, use, and development of groundwater |
|
|
resources in this state are compelling public interests vital to |
|
|
public safety, welfare, and economic progress. In this chapter, |
|
|
the legislature has recognized that the implementation of long-term |
|
|
aquifer management strategies developed by local groundwater |
|
|
conservation districts and subsidence districts to address the |
|
|
diverse characteristics that distinguish the many groundwater |
|
|
aquifers in this state is essential to implement Section 59, |
|
|
Article XVI, Texas Constitution, and to protect the landowner's |
|
|
ownership interest in the groundwater below the surface. |
|
|
SECTION 3. Section 36.002, Water Code, is amended to read as |
|
|
follows: |
|
|
Sec. 36.002. OWNERSHIP OF GROUNDWATER. (a) The |
|
|
legislature recognizes that a landowner has a vested ownership |
|
|
interest in groundwater below the surface as an interest in the |
|
|
landowner's real property. |
|
|
(b) The vested ownership interest described by this |
|
|
section: |
|
|
(1) entitles the landowner to a fair chance to produce |
|
|
the groundwater below the surface of real property, subject to |
|
|
Subsection (d), without causing waste or malicious drainage of |
|
|
other properties or negligently causing subsidence, but does not |
|
|
entitle a landowner to the right to capture a specific amount of |
|
|
groundwater below the surface; and |
|
|
(2) does not affect the existence of common law |
|
|
defenses or other defenses to liability under the rule of capture. |
|
|
(c) Nothing [The ownership and rights of the owners of the
|
|
|
land and their lessees and assigns in groundwater are hereby
|
|
|
recognized, and nothing] in this code shall be construed as |
|
|
depriving or divesting a landowner [the owners or their lessees and
|
|
|
assigns] of the ownership interest [or rights, except as those
|
|
|
rights may be limited or altered by rules promulgated by a
|
|
|
district]. |
|
|
(d) Nothing in this section shall be construed to: |
|
|
(1) prohibit a district from promulgating a rule to |
|
|
limit the exercise of the right of the landowner to produce |
|
|
groundwater; |
|
|
(2) prohibit a district from limiting or prohibiting |
|
|
the drilling of a well by a landowner for failure or inability to |
|
|
comply with minimum well spacing or tract size requirements adopted |
|
|
by the district; |
|
|
(3) affect the ability of a district to regulate |
|
|
groundwater production as authorized under Section 36.113, 36.116, |
|
|
or 36.122 or otherwise under this chapter or a special law governing |
|
|
a district; or |
|
|
(4) require that rules or regulations adopted by a |
|
|
district must allocate to each landowner a proportionate share of |
|
|
available groundwater for production from the aquifer based on the |
|
|
number of acres owned by the landowner. |
|
|
(e) A rule promulgated by a district may not discriminate |
|
|
between owners of land that is irrigated for production and |
|
|
landowners [owners of land or their lessees and assigns] whose land |
|
|
that was irrigated for production is enrolled or participating in a |
|
|
federal conservation program. |
|
|
SECTION 4. Section 36.101, Water Code, is amended by |
|
|
amending Subsection (a) and adding Subsection (a-1) to read as |
|
|
follows: |
|
|
(a) A district may make and enforce rules, including rules |
|
|
limiting groundwater production based on tract size or the spacing |
|
|
of wells, to provide for conserving, preserving, protecting, and |
|
|
recharging of the groundwater or of a groundwater reservoir or its |
|
|
subdivisions in order to control subsidence, prevent degradation of |
|
|
water quality, or prevent waste of groundwater and to carry out the |
|
|
powers and duties provided by this chapter. In adopting a rule |
|
|
under this chapter, a district [During the rulemaking process the
|
|
|
board] shall: |
|
|
(1) consider all groundwater uses and needs; |
|
|
(2) [and shall] develop rules that [which] are fair |
|
|
and impartial; |
|
|
(3) consider the vested ownership interest described |
|
|
by Section 36.002; |
|
|
(4) consider the public interest in conservation, |
|
|
preservation, protection, recharging, and prevention of waste of |
|
|
groundwater, and of groundwater reservoirs or their subdivisions, |
|
|
and in controlling subsidence caused by withdrawal of water from |
|
|
those groundwater reservoirs or their subdivisions, consistent |
|
|
with the objectives of Section 59, Article XVI, Texas Constitution; |
|
|
(5) consider the goals developed as part of the |
|
|
district's comprehensive management plan under Section 36.1071; |
|
|
and |
|
|
(6) [and that do] not discriminate between land that |
|
|
is irrigated for production and land that was irrigated for |
|
|
production and enrolled or participating in a federal conservation |
|
|
program. |
|
|
(a-1) Any rule of a district that discriminates between land |
|
|
that is irrigated for production and land that was irrigated for |
|
|
production and enrolled or participating in a federal conservation |
|
|
program is void. |
|
|
SECTION 5. Subsection (c), Section 36.108, Water Code, is |
|
|
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; |
|
|
(2) the effectiveness of the measures established by |
|
|
each management plan for conserving and protecting groundwater, |
|
|
[and] preventing waste, and considering the vested ownership |
|
|
interest described by Section 36.002, 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. |
|
|
SECTION 6. This Act takes effect September 1, 2011. |
|
|
|
|
|
* * * * * |