By: Lucio III, Keffer, Hunter, H.B. No. 2031
      Miller of Comal, Workman
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the diversion, treatment, and use of marine seawater
  and the discharge of treated marine seawater and waste resulting
  from the desalination of marine seawater; adding provisions subject
  to a criminal penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  (a)  With this state facing an ongoing drought,
  continuing population growth, and the need to remain economically
  competitive, every effort must be made to secure and develop
  plentiful and cost-effective water supplies to meet the
  ever-increasing demand for water. The purpose of this Act is not to
  hinder efforts to conserve or develop other surface water supplies
  but rather to more fully explore and expedite the development of all
  this state's water resources in order to balance this state's supply
  and demand for water, which is one of the most precious resources of
  this state.
         (b)  Currently, the projected long-term water needs of this
  state far exceed the firm supplies that are available and that can
  reasonably be made available from freshwater sources within this
  state. The legislature recognizes the importance of providing for
  this state's current and future water needs at all times,
  including, consistent with reasonable drought contingency
  measures, during severe droughts.
         (c)  In this state, marine seawater is a potential new source
  of water for drinking and other beneficial uses. This state has
  access to vast quantities of marine seawater from the Gulf of
  Mexico. The purpose of this Act is to streamline the regulatory
  process for and reduce the time required for and cost of marine
  seawater desalination.
         (d)  The legislature finds that marine seawater desalination
  facilities should be cost-effectively and timely developed,
  concurrently with other water planning solutions, to help this
  state meet its current and future water needs.
         (e)  The legislature finds that it is necessary and
  appropriate to grant authority and provide for expedited and
  streamlined authorization for marine seawater desalination
  facilities, consistent with appropriate environmental and water
  right protections, in order to avoid unnecessary costs, delays, and
  uncertainty and thereby help justify the investment of significant
  resources in the development of such facilities.
         SECTION 2.  Section 5.509(a), Water Code, is amended to read
  as follows:
         (a)  The commission may issue an emergency or temporary order
  relating to the discharge of waste or pollutants into or adjacent to
  water in the state if:
               (1)  the order is necessary to enable action to be taken
  more expeditiously than is otherwise provided by Chapter 18 or 26,
  as applicable, to effectuate the policy and purposes of that
  chapter; and
               (2)  the commission finds that:
                     (A)  the discharge is unavoidable to:
                           (i)  prevent loss of life, serious injury,
  or severe property damage;
                           (ii)  prevent severe economic loss or
  ameliorate serious drought conditions, to the extent consistent
  with the requirements for United States Environmental Protection
  Agency authorization of a state permit program; or
                           (iii)  make necessary and unforeseen repairs
  to a facility;
                     (B)  there is no feasible alternative to the
  proposed discharge;
                     (C)  the discharge will not cause significant
  hazard to human life and health, unreasonable damage to the
  property of persons other than the applicant, or unreasonable
  economic loss to persons other than the applicant; and
                     (D)  the discharge will not present a significant
  hazard to the uses that will be made of the receiving water after
  the discharge.
         SECTION 3.  Section 5.551, Water Code, is amended by adding
  Subsection (a-1) to read as follows:
         (a-1)  Notwithstanding Section 18.002, this subchapter does
  not apply to a permit issued under Section 18.005(c)(2) if the point
  of discharge is not located within three miles of any point located
  on the coast of this state.
         SECTION 4.  Section 7.302(a), Water Code, is amended to read
  as follows:
         (a)  This section applies to a permit or exemption issued by
  the commission under:
               (1)  Section 18.005 of this code;
               (2)  Chapter 26, 27, 28, or 31 of this code;
               (3) [(2)]  Subchapter C or R, Chapter 361, Health and
  Safety Code;
               (4) [(3)]  Subchapter D, Chapter 366, Health and Safety
  Code;
               (5) [(4)]  Chapter 382, Health and Safety Code; or
               (6) [(5)]  a rule adopted under any of those
  provisions.
         SECTION 5.  Section 11.0237(b), Water Code, is amended to
  read as follows:
         (b)  This section does not alter the commission's
  obligations under Section 11.042(a-1), (b), or (c), 11.046(b),
  11.085(k)(2)(F), 11.134(b)(3)(D), 11.147, 11.1471, 11.1491,
  11.150, 11.152, 16.058, [or] 16.059, or 18.004.
         SECTION 6.  Section 11.082, Water Code, is amended by adding
  Subsection (a-1) to read as follows:
         (a-1)  Notwithstanding Section 18.002, this section does not
  apply to a violation of:
               (1)  Section 18.003 or a permit issued under that
  section; or
               (2)  Section 18.004 or an authorization granted under
  that section.
         SECTION 7.  Section 11.0842, Water Code, is amended by
  adding Subsection (a-1) to read as follows:
         (a-1)  Notwithstanding Section 18.002, this section does not
  apply to a violation of:
               (1)  Section 18.003 or a permit issued under that
  section; or
               (2)  Section 18.004 or an authorization granted under
  that section.
         SECTION 8.  Section 11.121, Water Code, is amended to read as
  follows:
         Sec. 11.121.  PERMIT REQUIRED. Except as provided in
  Sections 11.142, 11.1421, [and] 11.1422, and 18.003 [of this code],
  no person may appropriate any state water or begin construction of
  any work designed for the storage, taking, or diversion of water
  without first obtaining a permit from the commission to make the
  appropriation.
         SECTION 9.  Section 16.053(e), Water Code, is amended to
  read as follows:
         (e)  Each regional water planning group shall submit to the
  development board a regional water plan that:
               (1)  is consistent with the guidance principles for the
  state water plan adopted by the development board under Section
  16.051(d);
               (2)  provides information based on data provided or
  approved by the development board in a format consistent with the
  guidelines provided by the development board under Subsection (d);
               (2-a)  is consistent with the desired future conditions
  adopted under Section 36.108 for the relevant aquifers located in
  the regional water planning area as of the date the board most
  recently adopted a state water plan under Section 16.051 or, at the
  option of the regional water planning group, established subsequent
  to the adoption of the most recent plan;
               (3)  identifies:
                     (A)  each source of water supply in the regional
  water planning area, including information supplied by the
  executive administrator on the amount of modeled available
  groundwater in accordance with the guidelines provided by the
  development board under Subsections (d) and (f);
                     (B)  factors specific to each source of water
  supply to be considered in determining whether to initiate a
  drought response;
                     (C)  actions to be taken as part of the response;
  and
                     (D)  existing major water infrastructure
  facilities that may be used for interconnections in the event of an
  emergency shortage of water;
               (4)  has specific provisions for water management
  strategies to be used during a drought of record;
               (5)  includes but is not limited to consideration of
  the following:
                     (A)  any existing water or drought planning
  efforts addressing all or a portion of the region;
                     (B)  approved groundwater conservation district
  management plans and other plans submitted under Section 16.054;
                     (C)  all potentially feasible water management
  strategies, including but not limited to improved conservation,
  reuse, and management of existing water supplies, conjunctive use,
  acquisition of available existing water supplies, and development
  of new water supplies;
                     (D)  protection of existing water rights in the
  region;
                     (E)  opportunities for and the benefits of
  developing regional water supply facilities or providing regional
  management of water supply facilities;
                     (F)  appropriate provision for environmental
  water needs and for the effect of upstream development on the bays,
  estuaries, and arms of the Gulf of Mexico and the effect of plans on
  navigation;
                     (G)  provisions in Section 11.085(k)(1) if
  interbasin transfers are contemplated;
                     (H)  voluntary transfer of water within the region
  using, but not limited to, regional water banks, sales, leases,
  options, subordination agreements, and financing agreements; [and]
                     (I)  emergency transfer of water under Section
  11.139, including information on the part of each permit, certified
  filing, or certificate of adjudication for nonmunicipal use in the
  region that may be transferred without causing unreasonable damage
  to the property of the nonmunicipal water rights holder; and
                     (J)  opportunities for and the benefits of
  developing large-scale desalination facilities for marine seawater
  that serve local or regional entities;
               (6)  identifies river and stream segments of unique
  ecological value and sites of unique value for the construction of
  reservoirs that the regional water planning group recommends for
  protection under Section 16.051;
               (7)  assesses the impact of the plan on unique river and
  stream segments identified in Subdivision (6) if the regional water
  planning group or the legislature determines that a site of unique
  ecological value exists;
               (8)  describes the impact of proposed water projects on
  water quality; and
               (9)  includes information on:
                     (A)  projected water use and conservation in the
  regional water planning area; and
                     (B)  the implementation of state and regional
  water plan projects, including water conservation strategies,
  necessary to meet the state's projected water demands.
         SECTION 10.  Subtitle C, Title 2, Water Code, is amended by
  adding Chapter 18 to read as follows:
  CHAPTER 18. MARINE SEAWATER DESALINATION PROJECTS
         Sec. 18.001.  DEFINITIONS. In this chapter:
               (1)  "Commission" means the Texas Commission on
  Environmental Quality.
               (2)  "Marine seawater" means water that is derived from
  the Gulf of Mexico.
               (3)  "Project" means:
                     (A)  a marine seawater desalination project; or
                     (B)  a facility for the storage, conveyance, and
  delivery of desalinated marine seawater.
         Sec. 18.002.  RELATIONSHIP TO OTHER LAWS. (a)  Except as
  provided by Subsection (b) or as otherwise provided by law:
               (1)  Chapter 11 applies to a permit or authorization
  under Section 18.003 or 18.004 in the same manner as that chapter
  applies to a permit or authorization under that chapter; and
               (2)  Chapter 26 applies to a permit under Section
  18.005 in the same manner as that chapter applies to a permit under
  that chapter.
         (b)  In the event of a conflict between this chapter and
  Chapter 11 or 26, this chapter controls.
         (c)  This chapter is intended to provide an alternative
  procedure for obtaining an authorization to divert and use state
  water that consists of marine seawater or to discharge treated
  marine seawater or waste resulting from the desalination of treated
  marine seawater under the circumstances provided by this chapter.
  This chapter does not affect the authority of a person to:
               (1)  divert and use state water that consists of marine
  seawater in accordance with the procedures provided by Chapter 11,
  including the authority to divert marine seawater from a point of
  diversion located in a bay or estuary; or
               (2)  discharge treated marine seawater or waste
  resulting from the desalination of treated marine seawater in
  accordance with the procedures provided by Chapter 26, including
  the authority to discharge waste resulting from the desalination of
  marine seawater into a bay or estuary.
         Sec. 18.003.  DIVERSIONS OF MARINE SEAWATER. (a)  A person
  must obtain a permit to divert and use state water that consists of
  marine seawater if:
               (1)  the point of diversion is located less than three
  miles seaward of any point located on the coast of this state; or
               (2)  the seawater contains a total dissolved solids
  concentration based on a yearly average of samples taken monthly at
  the water source of less than 20,000 milligrams per liter.
         (b)  A person may divert and use state water that consists of
  marine seawater without obtaining a permit if Subsection (a) does
  not apply.
         (c)  A person who diverts and uses state water that consists
  of marine seawater under a permit required by Subsection (a) or as
  authorized by Subsection (b) must determine the total dissolved
  solids concentration of the seawater at the water source by monthly
  sampling and analysis and provide the data collected to the
  commission. A person may not begin construction of a facility for
  the diversion of marine seawater without obtaining a permit until
  the person has provided data to the commission based on the analysis
  of samples taken at the water source over a period of at least one
  year demonstrating that Subsection (a)(2) does not apply. A person
  who has begun construction of a facility for the diversion of marine
  seawater without obtaining a permit because the person has
  demonstrated that Subsection (a)(2) does not apply is not required
  to obtain a permit for the facility if the total dissolved solids
  concentration of the seawater at the water source subsequently
  changes so that Subsection (a)(2) applies.
         (d)  A person may use marine seawater diverted under a permit
  required by Subsection (a) or as authorized by Subsection (b) for
  any beneficial purpose, but only if the seawater is treated in
  accordance with rules adopted by the commission before it is used.
  Rules adopted under this subsection may impose different treatment
  requirements based on the purpose for which the seawater is to be
  used.
         (e)  The commission shall adopt rules providing an expedited
  procedure for acting on an application for a permit required by
  Subsection (a). The rules must provide for notice, an opportunity
  for the submission of written comment, and an opportunity for a
  contested case hearing regarding commission actions relating to an
  application for a permit.
         (f)  A person may not divert marine seawater under a permit
  required by Subsection (a) or as authorized by Subsection (b) from a
  point of diversion located in a bay or estuary.
         (g)  An application for a permit required by Subsection (a)
  must address the points from which, and the rate at which, the
  facility the applicant proposes to construct will divert marine
  seawater.
         (h)  The commission by rule shall prescribe reasonable
  measures to minimize impingement and entrainment.
         (i)  The Parks and Wildlife Department and the General Land
  Office jointly shall conduct a study to identify zones in the Gulf
  of Mexico that are appropriate for the diversion of marine
  seawater, taking into account the need to protect marine organisms.  
  Not later than September 1, 2018, the Parks and Wildlife Department
  and the General Land Office shall submit a report on the results of
  the study to the commission.  The report must include recommended
  diversion zones for designation by the commission and
  recommendations for the number of points from which, and the rate at
  which, a facility may divert marine seawater.  Not later than
  September 1, 2020, the commission by rule shall designate
  appropriate diversion zones. A diversion zone may be contiguous
  to, be the same as, or overlap a discharge zone. The point or points
  from which a facility may divert marine seawater must be located in
  a diversion zone designated by the commission under rules adopted
  under this subsection if:
               (1)  the facility is authorized by a permit as required
  by Subsection (a) issued after the rules are adopted; or
               (2)  the facility is exempt under Subsection (b) from
  the requirement of a permit and construction of the facility begins
  after the rules are adopted.
         (j)  Until the commission adopts rules under Subsection (i),
  a person must consult the Parks and Wildlife Department and the
  General Land Office regarding the point or points from which a
  facility the person proposes to construct may divert marine
  seawater before submitting an application for a permit for the
  facility if Subsection (a) applies or before beginning construction
  of the facility if Subsection (b) applies.
         Sec. 18.004.  BED AND BANKS AUTHORIZATION. (a)  With prior
  authorization granted under rules prescribed by the commission, a
  person may use the bed and banks of any flowing natural stream in
  this state or a lake, reservoir, or other impoundment in this state
  to convey marine seawater that has been treated so as to meet
  standards that are at least as stringent as the water quality
  standards applicable to the receiving stream or impoundment adopted
  by the commission.
         (b)  The commission shall provide for notice and an
  opportunity for the submission of written comment but may not
  provide an opportunity for a contested case hearing regarding
  commission actions relating to an application for an authorization
  under this section to use the bed and banks of a flowing natural
  stream to convey treated marine seawater. The commission shall
  provide for notice, an opportunity for the submission of written
  comment, and an opportunity for a contested case hearing regarding
  commission actions relating to an application for an authorization
  under this section to use a lake, reservoir, or other impoundment to
  convey treated marine seawater.
         (c)  A person may not discharge treated marine seawater into
  a flowing natural stream in this state or a lake, reservoir, or
  other impoundment in this state for the purpose of conveyance of the
  water under an authorization granted under this section unless the
  person holds a permit issued under Section 18.005 authorizing the
  discharge.
         (d)  Treated marine seawater that is conveyed under an
  authorization granted under this section may be used only by the
  person to whom the authorization is granted.
         (e)  Section 11.042(c) applies to an authorization granted
  under this section in the same manner as that subsection applies to
  an authorization granted under Section 11.042.
         (f)  This section does not prohibit a person from conveying
  treated marine seawater in any other manner authorized by law.
         Sec. 18.005.  DISCHARGE OF TREATED MARINE SEAWATER OR WASTE
  RESULTING FROM DESALINATION OF MARINE SEAWATER. (a)  In this
  section, "permit," "person," "to discharge," "waste," and "water"
  have the meanings assigned by Section 26.001.
         (b)  Section 26.011 applies to discharges governed by this
  section in the same manner as that section applies to discharges
  governed by Chapter 26.
         (c)  A person must obtain a permit to discharge:
               (1)  treated marine seawater into a natural stream in
  this state or a lake, reservoir, or other impoundment in this state;
  or
               (2)  waste resulting from the desalination of treated
  marine seawater into the Gulf of Mexico.
         (d)  A person shall:
               (1)  treat marine seawater so as to meet standards that
  are at least as stringent as the water quality standards adopted by
  the commission applicable to the receiving stream or impoundment
  before discharging the seawater under this section; and
               (2)  comply with all applicable state and federal
  requirements when discharging waste resulting from the
  desalination of marine seawater into the Gulf of Mexico.
         (e)  The commission by rule shall provide an expedited
  procedure for acting on an application for a permit under this
  section. The rules must provide for:
               (1)  notice, an opportunity for the submission of
  written comment, and an opportunity to request a public meeting and
  may authorize a contested case hearing regarding commission actions
  relating to an application for a permit described by Subsection
  (c)(1);
               (2)  notice, an opportunity for the submission of
  written comment, an opportunity to request a public meeting, and an
  opportunity for a contested case hearing regarding commission
  actions relating to an application for a permit described by
  Subsection (c)(2) if the point of discharge is located within three
  miles of any point located on the coast of this state; and
               (3)  notice and an opportunity for the submission of
  written comment regarding commission actions relating to an
  application for a permit described by Subsection (c)(2) if
  Subdivision (2) of this subsection does not apply.
         (f)  A person may not discharge waste resulting from the
  desalination of marine seawater into a bay or estuary under a permit
  issued under Subsection (c)(2).
         (g)  The Parks and Wildlife Department and the General Land
  Office jointly shall conduct a study to identify zones in the Gulf
  o
  f Mexico that are appropriate for the discharge of waste resulting
  from the desalination of marine seawater, taking into account the
  need to protect marine organisms. Not later than September 1, 2018,
  the Parks and Wildlife Department and the General Land Office shall
  submit a report on the results of the study to the commission. The
  report must include recommended discharge zones for designation by
  the commission.  Not later than September 1, 2020, the commission by
  rule shall designate appropriate discharge zones. The point at
  which a facility may discharge waste resulting from the
  desalination of marine seawater must be located in a discharge zone
  designated by the commission under rules adopted under this
  subsection if the facility is authorized by a permit issued under
  Subsection (c)(2) after the rules are adopted.
         (h)  Until the commission adopts rules under Subsection (g),
  a person must consult the Parks and Wildlife Department and the
  General Land Office regarding the point at which the facility the
  person proposes to construct may discharge waste resulting from the
  desalination of marine seawater before submitting an application
  for a permit under Subsection (c)(2) for the facility.
         SECTION 11.  Section 26.0291(a), Water Code, is amended to
  read as follows:
         (a)  An annual water quality fee is imposed on:
               (1)  each wastewater discharge permit holder,
  including the holder of a permit issued under Section 18.005, for
  each wastewater discharge permit held; and
               (2)  each user of water in proportion to the user's
  water right, through permit or contract, as reflected in the
  commission's records, provided that the commission by rule shall
  ensure that no fee shall be assessed for the portion of a municipal
  or industrial water right directly associated with a facility or
  operation for which a fee is assessed under Subdivision (1) of this
  subsection.
         SECTION 12.  Subchapter C, Chapter 341, Health and Safety
  Code, is amended by adding Section 341.0316 to read as follows:
         Sec. 341.0316.  DESALINATION OF MARINE SEAWATER FOR DRINKING
  WATER. (a)  This section applies only to a desalination facility
  that is intended to treat marine seawater for the purpose of
  producing water for the public drinking water supply. This section
  does not apply to a desalination facility used to produce
  nonpotable water.
         (b)  The commission shall adopt rules to:
               (1)  allow water treated by a desalination facility to
  be used as public drinking water; and
               (2)  ensure that water treated by a desalination
  facility meets the requirements of Section 341.031 and rules
  adopted under that section.
         (c)  A person may not begin construction of a desalination
  facility that treats marine seawater for the purpose of removing
  primary or secondary drinking water contaminants unless the
  commission approves the construction of the facility.
         SECTION 13.  Section 16.060, Water Code, is repealed.
         SECTION 14.  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, 2015.