84R4581 JXC-F

By: Schaefer H.B. No. 3172

A BILL TO BE ENTITLED

AN ACT

relating to emergency orders concerning water rights issued by the Texas Commission on Environmental Quality.

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

SECTION 1. Section 11.053, Water Code, is amended to read as follows:

Sec. 11.053. EMERGENCY ORDER CONCERNING WATER RIGHTS. (a) For the purposes of this section:

(1) "Drought" means a period classified as a "severe drought" or "D2" by the National Drought Mitigation Center in accordance with the center's Drought Severity Classification scheme.

(2) "Emergency shortage of water" means a condition under which a senior water right holder is unable to obtain surface water when there is:

(A) an emergency period that poses a hazard to public health or safety; or

(B) a condition affecting hydraulic systems that impairs or interferes with conveyance or delivery of water for authorized users.

(b) During a period of drought or when there is an [other] emergency shortage of water, [as defined by commission rule,] the executive director by order may, in accordance with the priority of water rights established by Section 11.027:

(1) temporarily suspend the right of any person who holds a water right to use the water; and

(2) temporarily adjust the diversions of water by water rights holders.

(c) During a period of drought, the executive director may not issue an order under this section unless the commission has determined that each county in the basin of the river that would be subject to the order has been in a drought for at least 30 consecutive days before the date the order is issued. If the period of suspension or adjustment in the order is longer than six months, the commission shall review the determination made for the order at least once every six months to determine whether the drought in the river basin is still severe.

(d) When there is an emergency shortage of water, the executive director may not issue an order under this section unless each senior water right holder that would benefit from the order demonstrates to the executive director that the holder:

(1) has used reasonable intelligence and reasonable diligence to conserve water;

(2) requires surface water for a beneficial use; and

(3) is unable to obtain sufficient surface water for the beneficial use using the right.

(e)[(b)] The executive director in ordering a suspension or adjustment under this section shall ensure that an action taken:

(1) maximizes the beneficial use of water;

(2) minimizes the impact on water rights holders;

(3) prevents the waste of water;

(4) takes into consideration the efforts of the affected water rights holders to develop and implement the water conservation plans and drought contingency plans required by this chapter;

(5) to the greatest extent practicable, conforms to the order of preferences established by Section 11.024; and

(6) does not require the release of water that, at the time the order is issued, is lawfully stored in a reservoir under water rights associated with that reservoir.

(f) Except as provided by Subsection (i), the executive director shall notify the water rights holders who may be affected by an order proposed to be issued under this section of the proposed order not later than the 30th day before the date the proposed order takes effect.

(g) Not later than the 14th day after the date a person receives the notice, the person may request that the commission hold a hearing to affirm, modify, or set aside the proposed order.

(h) If the commission receives a request under Subsection (g), the commission shall hold a hearing on the proposed order before the date the proposed order takes effect. At or following the hearing, but not later than the date the proposed order takes effect, the commission shall affirm, modify, or set aside the proposed order.

(i) The executive director may issue an order under this section without first providing notice or a hearing if the order is issued to respond to a sudden and unexpected emergency. The order shall set a time and place for a hearing before the commission to affirm, modify, or set aside the order. The date of the hearing must be as soon as practicable after the date the order is issued, but not later than the 45th day after the date the order is issued. The executive director shall provide notice of the hearing to holders of water rights suspended by the order not later than the 10th day before the date of the hearing.

(j)[(c)] The commission shall adopt rules to implement this section, including rules[:

[(1) defining a drought or other emergency shortage of water for purposes of this section; and

[(2)] specifying the:

(1)[(A)] conditions under which the executive director may issue an order under this section;

(2)[(B)] terms of an order issued under this section, including the maximum duration of a temporary suspension or adjustment under this section; and

(3)[(C)] procedures for notice of and[,] an opportunity for a hearing on[, and the appeal to the commission of] an order issued under this section.

(k) An order suspending a water right or adjusting a diversion by a water right holder issued under this section does not limit the commission's authority to:

(1) grant an emergency permit, order, or amendment to an existing permit, certified filing, or certificate of adjudication to a water right holder under Section 11.139; or

(2) suspend a permit condition or make water available temporarily under Section 11.148.

SECTION 2. This Act takes effect September 1, 2015.