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A BILL TO BE ENTITLED
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AN ACT
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relating to groundwater ownership and rights. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 36.001, Water Code, is amended by adding |
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Subdivision (32) to read as follows: |
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(32) "Fair share" means a reasonable quantification, |
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based on the best available science, of the amount of groundwater in |
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place beneath each tract of land overlying an aquifer, subdivision |
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of an aquifer, or geologic formation that may be produced: |
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(A) under the applicable desired future |
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conditions adopted under Section 36.108; |
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(B) under the operating and hydrogeological |
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conditions of the area; and |
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(C) without resulting in the confiscation by |
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uncompensated drainage of the fair share of groundwater in place |
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under other tracts of land. |
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SECTION 2. Sections 36.002(b), (b-1), (c), and (d), Water |
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Code, are amended to read as follows: |
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(b) The groundwater ownership and rights recognized |
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[described] by this section entitle the landowner, including a |
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landowner's lessees, heirs, or assigns, to: |
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(1) drill for and produce the groundwater below the |
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surface of real property, subject to Subsection (d), without |
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causing waste or malicious drainage of other property or |
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negligently causing subsidence; [and] |
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(2) be afforded a fair share of groundwater when the |
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right to drill a well and produce groundwater is regulated under |
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this chapter; and |
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(3) have any other right recognized under common law. |
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(b-1) The groundwater ownership and rights recognized |
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[described] by this section do not: |
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(1) entitle a landowner, including a landowner's |
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lessees, heirs, or assigns, to the [right to capture a] specific |
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amount of groundwater below the surface of that landowner's land; |
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or |
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(2) affect the existence of common law defenses or |
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other defenses to liability under the rule of capture. |
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(c) Nothing in this code shall be construed as granting the |
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authority to deprive or divest a landowner, including a landowner's |
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lessees, heirs, or assigns, of the groundwater ownership and rights |
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recognized [described] by this section. |
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(d) This section does not: |
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(1) prohibit a district from adopting or enforcing |
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rules authorized under this chapter for a public purpose consistent |
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with Section 59, Article XVI, Texas Constitution [limiting or
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prohibiting the drilling of a well by a landowner for failure or
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inability to comply with minimum well spacing or tract size
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requirements adopted by the district]; or |
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(2) [affect the ability of a district to regulate
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groundwater production as authorized under Section 36.113, 36.116,
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or 36.122 or otherwise under this chapter or a special law governing
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a district; or
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[(3)] require that a rule adopted by a district |
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allocate to each landowner a proportionate share of available |
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groundwater for production from the aquifer based on the number of |
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acres owned by the landowner. |
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SECTION 3. Section 36.066(g), Water Code, is amended to |
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read as follows: |
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(g) If the district prevails in any suit other than a suit in |
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which it voluntarily intervenes or in which it challenges the |
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validity of a law, rule, or order under the Texas Constitution, the |
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district may seek and the court may [shall] grant, in the interests |
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of justice and as provided by Subsection (h), in the same action, |
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recovery for attorney's fees, costs for expert witnesses, and other |
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costs incurred by the district before the court. The amount of the |
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attorney's fees shall be fixed by the court. |
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SECTION 4. Section 36.101(a), Water Code, is amended to |
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read as follows: |
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(a) A district may make and enforce rules, including rules |
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limiting groundwater production based on tract size or the spacing |
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of wells, to provide for conserving, preserving, protecting, and |
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recharging of the groundwater or of a groundwater reservoir or its |
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subdivisions in order to control subsidence, prevent degradation of |
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water quality, or prevent waste of groundwater and to carry out the |
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powers and duties provided by this chapter. In adopting a rule |
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under this chapter, a district [shall]: |
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(1) shall consider all groundwater uses and needs; |
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(2) shall develop rules that are fair and impartial; |
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(3) shall protect [consider] the groundwater |
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ownership and rights recognized [described] by Section 36.002; |
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(4) may not restrict the exercise of a person's |
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groundwater ownership and rights unless it is necessary |
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for [consider] the public interest in conservation, preservation, |
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protection, recharging, and prevention of waste of groundwater, and |
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of groundwater reservoirs or their subdivisions, and in controlling |
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subsidence caused by withdrawal of groundwater from those |
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groundwater reservoirs or their subdivisions, consistent with the |
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objectives of Section 59, Article XVI, Texas Constitution; |
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(5) shall consider the goals developed as part of the |
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district's management plan under Section 36.1071; and |
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(6) may not discriminate between land that is |
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irrigated for production and land that was irrigated for production |
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and enrolled or participating in a federal conservation program. |
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SECTION 5. Section 36.1071(a), Water Code, is amended to |
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read as follows: |
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(a) Following notice and hearing, the district shall, in |
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coordination with surface water management entities on a regional |
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basis, develop a management plan that addresses the following |
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management goals, as applicable: |
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(1) providing the most efficient use of groundwater; |
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(2) controlling and preventing waste of groundwater; |
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(3) controlling and preventing subsidence; |
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(4) addressing conjunctive surface water management |
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issues; |
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(5) addressing natural resource issues; |
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(6) addressing drought conditions; |
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(7) addressing conservation, recharge enhancement, |
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rainwater harvesting, precipitation enhancement, or brush control, |
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where appropriate and cost-effective; [and] |
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(8) addressing the desired future conditions adopted |
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by the district under Section 36.108; and |
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(9) protecting the groundwater ownership and rights |
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recognized by Section 36.002. |
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SECTION 6. The heading to Section 36.108, Water Code, is |
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amended to read as follows: |
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Sec. 36.108. ESTABLISHING DESIRED FUTURE CONDITIONS [JOINT
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PLANNING] IN MANAGEMENT AREA. |
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SECTION 7. Sections 36.108(c), (d), and (d-2), Water Code, |
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are amended to read as follows: |
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(c) The district representatives shall meet at least |
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annually to [conduct joint planning with the other districts in the
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management area and to] review the management plans, the |
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accomplishments of the management area, and proposals to adopt new |
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or amend existing desired future conditions. In reviewing the |
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management plans, the districts shall consider: |
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(1) the goals of each management plan and its impact on |
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planning throughout the management area; |
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(2) the effectiveness of the measures established by |
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each district's management plan for protecting private property |
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rights, conserving and protecting groundwater, and preventing |
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waste, and the effectiveness of these measures in the management |
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area generally; |
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(3) any other matters that the boards consider |
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relevant to the protection of private property rights, protection |
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and conservation of groundwater, and the prevention of waste in the |
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management area; and |
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(4) the degree to which each management plan achieves |
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the desired future conditions adopted under Subsection (d-4) |
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[established during the joint planning process]. |
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(d) Not later than September 1, 2010, and every five years |
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thereafter, the districts shall consider groundwater availability |
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models and other data or information for the management area and |
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shall propose for adoption desired future conditions for the |
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relevant aquifers within the management area. Before voting on the |
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proposed desired future conditions of the aquifers under Subsection |
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(d-2), the districts shall consider: |
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(1) aquifer uses or conditions within the management |
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area, including conditions that differ substantially from one |
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geographic area to another; |
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(2) the water supply needs and water management |
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strategies included in the state water plan; |
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(3) hydrological conditions, including for each |
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aquifer in the management area the total estimated recoverable |
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storage as provided by the executive administrator, and the average |
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annual recharge, inflows, and discharge; |
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(4) other environmental impacts, including impacts on |
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spring flow and other interactions between groundwater and surface |
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water; |
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(5) the impact on subsidence; |
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(6) socioeconomic impacts reasonably expected to |
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occur; |
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(7) the impact on the interests and rights in private |
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property, including ownership and the rights of management area |
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landowners and their lessees and assigns in groundwater as |
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recognized by [under] Section 36.002; |
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(8) the feasibility of achieving the desired future |
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condition; and |
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(9) any other information relevant to the specific |
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desired future conditions. |
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(d-2) The desired future conditions proposed and approved |
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under this section [Subsection (d)] must allow [provide a balance
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between] the highest practicable level of groundwater production of |
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the total estimated recoverable storage that is consistent with the |
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groundwater ownership and rights recognized by Section 36.002, |
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[and] the reasonable conservation, preservation, protection, |
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recharging, and prevention of waste of groundwater, and control of |
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subsidence in the management area. This subsection does not |
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prohibit the establishment of desired future conditions that |
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provide for the reasonable long-term management of groundwater |
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resources consistent with the management goals under Section |
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36.1071(a). The desired future conditions proposed under |
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Subsection (d) must be approved by a two-thirds vote of all the |
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district representatives for distribution to the districts in the |
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management area. A period of not less than 90 days for public |
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comments begins on the day the proposed desired future conditions |
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are mailed to the districts. During the public comment period and |
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after posting notice as required by Section 36.063, each district |
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shall hold a public hearing on any proposed desired future |
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conditions relevant to that district. During the public comment |
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period, the district shall make available in its office a copy of |
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the proposed desired future conditions and any supporting |
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materials, such as the documentation of factors considered under |
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Subsection (d) and groundwater availability model run results. |
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After the public hearing, the district shall compile for |
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consideration at the next joint planning meeting a summary of |
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relevant comments received, any suggested revisions to the proposed |
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desired future conditions, and the basis for the revisions. |
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SECTION 8. Sections 36.113(c), (d), (e), (f), and (h), |
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Water Code, are amended to read as follows: |
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(c) A district may require that the following be included in |
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the permit or permit amendment application: |
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(1) the name and mailing address of the applicant and |
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the owner of the land on which the well will be located; |
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(2) if the applicant is other than the owner of the |
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property, documentation establishing the applicable authority to |
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construct and operate a well for the proposed use; |
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(3) a statement of the nature and purpose of the |
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proposed use and the amount of water to be used for each purpose; |
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(4) a water conservation plan or a declaration that |
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the applicant will comply with the district's management plan; |
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(5) the location of each well and the estimated rate at |
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which water will be withdrawn; |
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(6) a water well closure plan or a declaration that the |
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applicant will comply with well plugging guidelines and report |
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closure to the commission; [and] |
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(7) a drought contingency plan; and |
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(8) documentation of the applicant's ownership |
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interest in the proposed groundwater production that demonstrates: |
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(A) the application is consistent with the |
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applicant's fair share; and |
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(B) the applicant's production of groundwater |
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will not result in the confiscation by uncompensated drainage of |
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another person's fair share. |
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(d) This subsection does not apply to the renewal of an |
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operating permit issued under Section 36.1145. Before granting or |
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denying a permit, or a permit amendment issued in accordance with |
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Section 36.1146, the district shall consider whether: |
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(1) the application conforms to the requirements |
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prescribed by this chapter and is accompanied by the prescribed |
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fees; |
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(2) the proposed use of water unreasonably affects the |
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groundwater ownership and rights recognized by Section 36.002 or |
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existing groundwater and surface water resources [or existing
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permit holders]; |
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(3) the proposed use of water is dedicated to any |
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beneficial use; |
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(4) the proposed use of water is consistent with the |
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district's approved management plan; |
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(5) if the well will be located in the Hill Country |
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Priority Groundwater Management Area, the proposed use of water |
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from the well is wholly or partly to provide water to a pond, lake, |
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or reservoir to enhance the appearance of the landscape; |
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(6) the applicant has agreed to avoid waste and |
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achieve water conservation; and |
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(7) the applicant has agreed that reasonable diligence |
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will be used to protect groundwater quality and that the applicant |
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will follow well plugging guidelines at the time of well closure. |
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(e) The district may impose more restrictive permit |
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conditions on new permit applications and permit amendment |
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applications to increase use by historic users if the limitations: |
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(1) apply to all subsequent new permit applications |
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and permit amendment applications to increase use by historic |
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users, regardless of type or location of use; |
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(2) bear a reasonable relationship to the existing |
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district management plan; [and] |
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(3) are reasonably necessary to protect existing use; |
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and |
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(4) are consistent with the groundwater ownership and |
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rights recognized by Section 36.002 and with Section 59, Article |
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XVI, Texas Constitution. |
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(f) This subsection does not apply to the renewal of an |
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operating permit issued under Section 36.1145. Permits, and permit |
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amendments issued in accordance with Section 36.1146, may be issued |
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subject to the rules promulgated by the district and subject to |
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terms and provisions with reference to the drilling, equipping, |
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completion, alteration, or operation of, or production of |
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groundwater from, wells or pumps that may be necessary to: |
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(1) protect the groundwater ownership and rights |
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recognized by Section 36.002; |
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(2) prevent waste and achieve water conservation; |
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(3) [,] minimize as far as practicable the drawdown of |
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the water table or the reduction of artesian pressure; |
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(4) [,] lessen interference between wells; [,] or |
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(5) control and prevent subsidence. |
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(h) In issuing a permit for an existing or historic use, a |
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district may not: |
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(1) discriminate between land that is irrigated for |
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production and land or wells on land that was irrigated for |
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production and enrolled or participating in a federal conservation |
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program; or |
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(2) issue a permit that will result in the |
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confiscation by uncompensated drainage of another person's fair |
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share. |
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SECTION 9. Section 36.116, Water Code, is amended to read as |
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follows: |
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Sec. 36.116. REGULATION OF SPACING AND PRODUCTION. (a) In |
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order to protect the groundwater ownership and rights recognized by |
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Section 36.002, to minimize as far as practicable the drawdown of |
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the water table or the reduction of artesian pressure, to control |
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subsidence, to prevent interference between wells, to prevent |
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degradation of water quality, or to prevent waste, a district by |
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rule may regulate: |
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(1) the spacing of water wells by: |
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(A) requiring all water wells to be spaced a |
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certain distance from property lines or adjoining wells; |
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(B) requiring wells with a certain production |
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capacity, pump size, or other characteristic related to the |
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construction or operation of and production from a well to be spaced |
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a certain distance from property lines or adjoining wells; or |
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(C) imposing spacing requirements adopted by the |
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board; and |
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(2) the production of groundwater by: |
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(A) setting production limits on wells; |
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(B) limiting the amount of water produced based |
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on acreage or tract size; |
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(C) limiting the amount of water that may be |
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produced from a defined number of acres assigned to an authorized |
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well site; |
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(D) limiting the maximum amount of water that may |
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be produced on the basis of acre-feet per acre or gallons per minute |
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per well site per acre; |
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(E) managed depletion; or |
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(F) any combination of the methods listed above |
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in Paragraphs (A) through (E). |
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(b) In promulgating any rules limiting groundwater |
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production, the district: |
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(1) may preserve historic or existing use before the |
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effective date of the rules to the maximum extent practicable |
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consistent with the groundwater ownership and rights recognized by |
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Section 36.002, Section 59, Article XVI, Texas Constitution, and |
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the district's management plan under Section 36.1071 and as |
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provided by Section 36.113; and |
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(2) may adopt a rule only if the district finds that |
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the rule is consistent with the public interest. |
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(c) In regulating the production of groundwater based on |
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tract size or acreage, a district may consider the service needs or |
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service area of a retail public utility in a manner consistent with |
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and without resulting in the confiscation by uncompensated drainage |
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of the groundwater ownership and rights recognized by Section |
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36.002. For the purposes of this subsection, "retail public |
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utility" has [shall have] the meaning provided by Section 13.002. |
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(d) For the protection of the groundwater ownership and |
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rights recognized by Section 36.002 and better management of the |
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groundwater resources located in a district or if a district |
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determines that conditions in or use of an aquifer differ |
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substantially from one geographic area of the district to another, |
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the district may adopt different rules for: |
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(1) each aquifer, subdivision of an aquifer, or |
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geologic strata located in whole or in part within the boundaries of |
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the district; or |
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(2) each geographic area overlying an aquifer or |
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subdivision of an aquifer located in whole or in part within the |
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boundaries of the district. |
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(e) In regulating the production of groundwater under |
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Subsection (a)(2), a district: |
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(1) shall select a method that is appropriate based on |
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the protection of the groundwater ownership and rights recognized |
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by Section 36.002 and hydrogeological conditions of the aquifer or |
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aquifers in the district; and |
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(2) may limit the amount of water produced based on |
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contiguous surface acreage. |
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(f) A rule adopted under this section must afford each |
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person who has an ownership interest in the groundwater within the |
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boundaries of the district a fair share of the groundwater as |
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recognized by Section 36.002. |
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SECTION 10. Subchapter D, Chapter 36, Water Code, is |
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amended by adding Section 36.1161 to read as follows: |
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Sec. 36.1161. PETITION FOR RULEMAKING. (a) A person who |
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has an ownership interest in groundwater may petition a district |
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with authority to regulate the groundwater to adopt rules under |
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Section 36.116(d). |
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(b) The petitioner has the burden of proof that the rules |
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are necessary to protect the groundwater ownership and rights |
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recognized by Section 36.002 or to achieve a purpose of this chapter |
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because conditions in or use of an aquifer, subdivision of an |
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aquifer, or geologic strata differ substantially from: |
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(1) another aquifer, subdivision of an aquifer, or |
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geologic strata; |
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(2) any aquifer, subdivision of an aquifer, or |
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geologic strata not currently included in an established desired |
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future condition, as of January 1, 2013; or |
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(3) one geographic area of the district to another. |
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(c) A district shall require the petitioner to provide |
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written notice to each person with an ownership interest in |
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groundwater that would be affected by the rules requested in the |
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petition. |
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(d) A district may request technical assistance regarding |
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the technical merits of the petition from the Texas Water |
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Development Board. The Texas Water Development Board shall provide |
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a written technical response not later than the 60th day after the |
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date the Texas Water Development Board receives a written request |
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for assistance by the district under this subsection. |
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(e) A district shall hold a hearing to consider a petition |
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submitted under this section in the manner provided by Section |
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36.101. A district is not required to provide notice required by |
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Sections 36.101(d)(1) through (4). |
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(f) A board may grant, modify, or deny a petition by written |
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order. The order must include the findings of the board relevant to |
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the evidence provided by the petitioner under Subsection (b). |
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(g) A person affected by and dissatisfied with a rule |
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adopted under this section is entitled to file a suit against the |
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district or its directors under Section 36.251. |
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SECTION 11. Section 36.117(a), Water Code, is amended to |
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read as follows: |
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(a) A district by rule may provide an exemption from the |
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district's requirement to obtain any permit required by this |
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chapter or the district's rules if the exemption is consistent with |
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the groundwater ownership and rights recognized by Section 36.002. |
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SECTION 12. The changes in law made by this Act apply only |
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to an application for a permit or a permit amendment that is |
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received by a groundwater conservation district on or after the |
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effective date of this Act. An application for a permit or permit |
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amendment that is received before the effective date of this Act is |
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governed by the law in effect on the date the application is |
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received, and that law is continued in effect for that purpose. |
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SECTION 13. The changes in law made by this Act apply only |
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to a rule of a groundwater conservation district that is adopted on |
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or after the effective date of this Act. A rule adopted before the |
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effective date of this Act is subject to the law in effect on the |
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date the rule took effect, and that law is continued in effect for |
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that purpose. |
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SECTION 14. This Act takes effect September 1, 2017. |