BILL ANALYSIS

 

 

H.B. 2739

By: Martinez Fischer

Natural Resources

Committee Report (Unamended)

 

 

 

BACKGROUND AND PURPOSE

 

Interested parties note that groundwater conservation districts are authorized to establish the conditions and terms of a permit to withdraw groundwater from within the district. The parties further note that the conditions and terms vary from district to district and that a term may be as short as one year. The parties contend, however, that development of a major groundwater supply project may require long-term financing and expenditure of hundreds of millions of dollars and that such financing and long-term water supply planning is made difficult when predicated on a short-term withdrawal permit.

 

The parties note that certain law requires that a permit for the transfer of groundwater out of a district be issued for a period of at least 30 years upon construction of a conveyance system. The parties contend that such requirement reflects a legislative understanding of the need for long-term permit reliability to secure customary 30-year project financing, but that some districts are interpreting the law to authorize a requirement for two separate permits: a withdrawal permit issued for a certain period, which may be short term, and a separate transfer permit to be issued for at least 30 years. The parties contend that the interpretation of law for separate permits of different terms defeats the certainty otherwise provided for a permit to transfer groundwater out of a district.

 

H.B. 2739 seeks to address and clarify these issues by establishing provisions relating to permitting requirements of groundwater conservation districts, including permits to transfer water.

 

RULEMAKING AUTHORITY

 

It is the committee's opinion that rulemaking authority is expressly granted to groundwater conservation districts in SECTION 3 of this bill.

 

ANALYSIS

 

SECTION 1. Amends Section 36.113(c), Water Code, as follows:

 

(c) Authorizes a district to require that certain criteria be included in the permit or permit amendment application, including:

 

(1)  the name and mailing address of the applicant and the owner of the land on which the well will be located;

 

(2)  if the applicant is other than the owner of the property, documentation establishing the applicable authority to construct and operate a well for the proposed use;

 

(3)  a statement of the nature, location, and purpose of the proposed use, rather than the nature and purpose of the proposed use, and the amount of water to be used for each purpose;

 

(4)  a water conservation plan or a declaration that the applicant will comply with the district's management plan;

 

(5)  the location of each well and the estimated rate at which water will be withdrawn;

 

(6)  a water well closure plan or a declaration that the applicant will comply with well plugging guidelines and report closure to the commission; and

 

(7)  a drought contingency plan.

 

SECTION 2. Amends Section 36.1131(b), Water Code, as follows:

           

(b) Authorizes a permit for the drilling, equipping, operating, or completing of wells or for substantially altering the size of wells or well pumps to include:

 

                        (1) the name and address of the person to whom the permit is issued;

 

(2)  the location of the well;

 

(3)  the date the permit is to expire if no well is drilled;

 

(4)  a statement of the purpose for which the well is to be used;

 

(5)  a requirement that the water withdrawn under the permit be put to beneficial use at all times;

 

(6)  the location of the use of the water from the well;

 

(7)  a water well closure plan or a declaration that the applicant will comply with well plugging guidelines and report closure to the commission;

 

(8)  the conditions and restrictions, if any, placed on the rate and amount of withdrawal;

 

(9)  any conservation-oriented methods of drilling and operating prescribed by the district;

 

(10)  a drought contingency plan prescribed by the district;  and

 

(11)  other terms and conditions as provided by Section 36.113 or 36.122, rather than by Section 36.113 alone.

 

SECTION 3. Amends Sections 36.122(b), (c), (d), (g), (h), (i), and (k), Water Code, as follows:

 

(b)  Authorizes a district to promulgate rules requiring a person to obtain, under Section 36.113, a well permit, rather than a permit, or an amendment to a well permit, rather than a permit under Section 36.113, from the district authorizing the transfer of groundwater produced from the well out of the district, rather than from the district for the transfer of groundwater out of the district, to:

 

(1)  increase, on or after March 2, 1997, the amount of groundwater to be transferred under a continuing arrangement in effect before that date;  or

 

(2)  transfer groundwater out of the district on or after March 2, 1997, under a new arrangement.

 

(c)  Prohibits the district, except as provided in Section 36.113(e), from imposing more restrictive permit conditions on transfers out of the district, rather than conditions on transporters, than the district imposes on existing in-district uses, rather than users.

 

(d)  Authorizes the district to impose a reasonable fee for processing a well permit application that proposes transferring groundwater outside the district's boundaries, rather than for processing an application under this section.  Provides that the fee may not exceed fees that the district imposes for processing other applications under Section 36.113.  Requires an application filed to comply with this section to be considered and processed under the same procedures as other applications for permits under Section 36.113 and be combined with applications filed to obtain a permit for in-district water use under Section 36.113 from the same applicant.

 

(g)  Prohibits the district from denying a permit based on the fact that the applicant proposes transferring groundwater outside the district, rather than the applicant seeks to transfer groundwater outside of the district, but authorizes the district to limit the amount of water that may be transferred, rather than limit a permit issued under this section, if conditions in Subsection (f) warrant the limitation, subject to Subsection (c).

 

(h)  Requires that, in addition to conditions provided by Section 36.1131, the permit specify:

 

(1)  the amount of water that may be transferred out of the district;  and

 

(2)  the term for which the water may be produced and transferred, rather than the period for which the water may be transferred.

 

(i)  Requires the term, rather than period, specified by Subsection (h)(2) to be:

 

(1)  at least three years if construction of a conveyance system has not been initiated prior to the issuance of the permit;  or

 

(2)  at least 30 years if construction of a conveyance system has been initiated prior to the issuance of the permit.

 

(k)  Authorizes a district, notwithstanding the term, rather than period, specified in Subsections (i) and (j) during which water may be transferred under a permit, to periodically review the amount of water that may be transferred under the permit and to limit the amount if additional factors considered in Subsection (f) warrant the limitation, subject to Subsection (c). Authorizes the review described by this subsection to take place not more frequently than the period provided for the review or renewal of permits, rather than regular permits, issued by the district under Section 36.113 for in-district uses, rather than issued by the district alone.  Requires the district, in its determination of whether to renew a permit at the end of the term specified by Subsection (h)(2), rather than issued under this section, to consider relevant and current data for the conservation of groundwater resources and to consider the permit in the same manner it would consider any other permit in the district.

 

SECTION 4.  Provides that Sections 36.1131(b) and 36.122, Water Code, as amended by this Act, apply only to an application for a permit submitted to a groundwater conservation district on or after the effective date of this Act.  Provides that an application for a permit submitted to a district before that date is governed by the law in effect on the date the application was submitted, and the former law is continued in effect for that purpose.

 

SECTION 5. Provides for the effective date of this Act.

 

EFFECTIVE DATE

 

This Act takes effect September 1, 2013.