H.B. No. 3405
 
 
 
 
AN ACT
  relating to the territory, jurisdiction, and powers of the Barton
  Springs-Edwards Aquifer Conservation District, including its
  authority to regulate certain wells for the production of
  groundwater; imposing a cap on certain fees.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter A, Chapter 8802, Special District
  Local Laws Code, is amended by adding Section 8802.0035 to read as
  follows:
         Sec. 8802.0035.  SHARED TERRITORY; JURISDICTION. (a) The
  territory of the district includes any territory that is:
               (1)  inside the boundaries of:
                     (A)  the Edwards Aquifer Authority; and
                     (B)  Hays County; and
               (2)  not within the boundaries of the Plum Creek
  Conservation District as those boundaries existed on February 1,
  2015.
         (b)  The Edwards Aquifer Authority has jurisdiction over any
  well that is drilled to produce water from the Edwards Aquifer in
  the shared territory described by Subsection (a).
         (c)  The district has jurisdiction over groundwater and any
  well that is drilled to produce water from any aquifer other than
  the Edwards Aquifer in the shared territory described by Subsection
  (a).
         (d)  Except for the district and the Edwards Aquifer
  Authority, no district or authority created under Section 52,
  Article III, or Section 59, Article XVI, Texas Constitution, has
  authority in the shared territory described by Subsection (a) to
  regulate the spacing of water wells or the production from water
  wells.
         (e)  The district has jurisdiction over any well that is
  drilled to produce water from the Edwards Aquifer or any other
  aquifer in the territory described by Section 8802.003.
         (f)  The district's jurisdiction over any well that is
  drilled to produce water in the territory described in Section
  8802.003, including a well that is used to recover water that has
  been injected as part of an aquifer storage and recovery project,
  applies to all wells for which the district has jurisdiction in the
  shared territory described by this section.
         SECTION 2.  Section 8802.1045, Special District Local Laws
  Code, is amended by adding Subsection (g) to read as follows:
         (g)  This subsection applies only to a well located in the
  shared territory described by Section 8802.0035. Notwithstanding
  Subsection (b), the district may not charge an annual production
  fee of more than 17 cents per thousand gallons of water authorized
  to be produced under a permit from a well under this subsection, if
  the water is permitted for any use other than agricultural use.
         SECTION 3.  As soon as practicable after the effective date
  of this Act, and in conformance with the requirements of Section
  8802.053, Special District Local Laws Code, the board of directors
  of the Barton Springs-Edwards Aquifer Conservation District shall
  revise the single-member districts as the board considers
  appropriate to reflect the changes in territory made by Section
  8802.0035, Special District Local Laws Code, as added by this Act.
         SECTION 4.  (a) In this section:
               (1)  "District" means the Barton Springs-Edwards
  Aquifer Conservation District.
               (2)  "Maximum production capacity" means the maximum
  production capacity of a well, which may be based on a 36-hour pump
  test conducted at the time the well was initially constructed or
  placed into service.
         (b)  This section applies only to the shared territory added
  to the district by Section 8802.0035, Special District Local Laws
  Code, as added by this Act.
         (c)  A person operating a well before the effective date of
  this Act or who has entered into a contract before the effective
  date of this Act to drill or operate a well that is or will be
  located in the territory described by Subsection (b) of this
  section and subject to the jurisdiction of the district under
  Section 8802.0035, Special District Local Laws Code, as added by
  this Act, shall file an administratively complete permit
  application with the district not later than three months after the
  effective date of this Act for the drilling, equipping, completion,
  or operation of any well if the well requires a permit under the
  rules or orders of the district. The person may file the permit
  application for an amount of groundwater production not to exceed
  the maximum production capacity of the well.
         (d)  The district shall issue a temporary permit to a person
  who files an application under Subsection (c) of this section
  without a hearing on the application not later than the 30th day
  after the date of receipt of the application. The district shall
  issue the temporary permit for the groundwater production amount
  set forth in the application. The temporary permit issued under
  this subsection shall provide the person with retroactive and
  prospective authorization to drill, operate, or perform another
  activity related to a well for which a permit is required by the
  district for the period of time between the effective date of this
  Act and the date that the district takes a final, appealable action
  on issuance of a regular permit pursuant to the permit application
  if:
               (1)  the person's drilling, operating, or other
  activities associated with the well are consistent with the
  authorization sought in the permit application;
               (2)  the person timely pays to the district all
  administrative fees and fees related to the amount of groundwater
  authorized to be produced pursuant to the temporary permit in the
  same manner as other permit holders in the district; and
               (3)  the person complies with other rules and orders of
  the district applicable to permit holders.
         (e)  The temporary permit issued under Subsection (d) does
  not confer any rights or privileges to the permit holder other than
  those set forth in this section. After issuing the temporary
  permit, the district shall process the permit application for
  notice, hearing, and consideration for issuance of a regular permit
  consistent with this section. The district, after notice and
  hearing, shall issue an order granting the regular permit
  authorizing groundwater production in the amount set forth in the
  temporary permit unless the district finds that authorizing
  groundwater production in the amount set forth in the temporary
  permit will cause:
               (1)  a failure to achieve the applicable adopted
  desired future conditions for the aquifer; or
               (2)  an unreasonable impact on existing wells.
         (f)  In the hearing on issuance of the regular permit under
  Subsection (e), the permit applicant bears the burden of proof.
         (g)  The holder of a temporary or regular permit subject to a
  district order under this section to reduce the amount of
  groundwater production from the permitted well may contest the
  reduction by requesting a contested case hearing to be conducted by
  the State Office of Administrative Hearings in the manner provided
  by Sections 36.416, 36.4165, and 36.418, Water Code. The district
  shall contract with the State Office of Administrative Hearings to
  conduct the hearing as provided by those sections of the Water Code.
  To the extent possible, the State Office of Administrative Hearings
  shall expedite a hearing under this subsection. The permit
  applicant bears the burden of proof in the hearing.
         (h)  For the State Office of Administrative Hearings to
  recommend overturning a district order reducing the amount of
  groundwater authorized to be produced under a temporary permit, the
  permit holder must demonstrate by a preponderance of the evidence
  that the production of the amount of groundwater authorized based
  on the maximum production capacity will not cause:
               (1)  a failure to achieve applicable adopted desired
  future conditions for the aquifer; or
               (2)  an unreasonable impact on existing wells as found
  in the district's order.
         (i)  A person who relies on the temporary permit granted by
  this section to drill, operate, or engage in other activities
  associated with a water well assumes the risk that the district may
  grant or deny, wholly or partly, the permit application when the
  district takes final action after notice and hearing to issue a
  regular permit pursuant to the application.
         SECTION 5.  If the addition of territory under Section
  8802.0035, Special District Local Laws Code, as added by this Act,
  causes the annual water use fee in Section 8802.105 to exceed $1
  million, the district shall not require an assessment of greater
  than $1 million annually as adjusted to reflect the percentage
  change during the preceding year in the Consumer Price Index.
         SECTION 6.  (a) The legislature validates and confirms all
  acts and proceedings of the board of directors of the Barton
  Springs-Edwards Aquifer Conservation District that were taken
  before the effective date of this Act.
         (b)  Subsection (a) of this section does not apply to any
  matter that on the effective date of this Act:
               (1)  is involved in litigation if the litigation
  ultimately results in the matter being held invalid by a final
  judgment of a court; or
               (2)  has been held invalid by a final judgment of a
  court.
         SECTION 7.  (a) The legal notice of the intention to
  introduce this Act, setting forth the general substance of this
  Act, has been published as provided by law, and the notice and a
  copy of this Act have been furnished to all persons, agencies,
  officials, or entities to which they are required to be furnished
  under Section 59, Article XVI, Texas Constitution, and Chapter 313,
  Government Code.
         (b)  The governor, one of the required recipients, has
  submitted the notice and Act to the Texas Commission on
  Environmental Quality.
         (c)  The Texas Commission on Environmental Quality has filed
  its recommendations relating to this Act with the governor, the
  lieutenant governor, and the speaker of the house of
  representatives within the required time.
         (d)  All requirements of the constitution and laws of this
  state and the rules and procedures of the legislature with respect
  to the notice, introduction, and passage of this Act are fulfilled
  and accomplished.
         SECTION 8.  It is the intent of the legislature that this Act
  apply only to the territory described by Section 8802.0035, Special
  District Local Laws Code, as added by this Act, and not have
  statewide implications.
         SECTION 9.  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.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 3405 was passed by the House on May 8,
  2015, by the following vote:  Yeas 126, Nays 15, 1 present, not
  voting; that the House refused to concur in Senate amendments to
  H.B. No. 3405 on May 29, 2015, and requested the appointment of a
  conference committee to consider the differences between the two
  houses; that the House adopted the conference committee report on
  H.B. No. 3405 on May 31, 2015, by the following vote:  Yeas 143,
  Nays 1, 1 present, not voting, and that the House adopted H.C.R. No.
  149 authorizing certain corrections in H.B. No. 3405 on June 1,
  2015, by the following vote: Yeas 147, Nays 0, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 3405 was passed by the Senate, with
  amendments, on May 22, 2015, by the following vote:  Yeas 28, Nays
  3; at the request of the House, the Senate appointed a conference
  committee to consider the differences between the two houses; that
  the Senate adopted the conference committee report on H.B. No. 3405
  on May 30, 2015, by the following vote:  Yeas 27, Nays 4, and that
  the Senate adopted H.C.R. No. 149 authorizing certain corrections
  in H.B. No. 3405 on June 1, 2015, by the following vote: Yeas 31,
  Nays 0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor