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A BILL TO BE ENTITLED
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AN ACT
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relating to the regulation of groundwater. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 35.018(b), Water Code, is amended to |
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read as follows: |
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(b) The report must include: |
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(1) the names and locations of all priority |
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groundwater management areas and districts created or attempted to |
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be created on or after November 5, 1985, the effective date of |
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Chapter 133 (H.B. No. 2), Acts of the 69th Legislature, Regular |
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Session, 1985; |
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(2) the authority under which each priority |
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groundwater management area and district was proposed for creation; |
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(3) a detailed analysis of each election held to |
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confirm the creation of a district, including analysis of election |
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results, possible reasons for the success or failure to confirm the |
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creation of a district, and the possibility for future voter |
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approval of districts in areas in which attempts to create |
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districts failed; |
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(4) a detailed analysis of the activities of each |
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district created, including those districts which are implementing |
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management plans certified under Section 36.1072; |
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(5) a report on [audits performed on districts under
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Section 36.302 and] remedial actions taken under Section 36.303; |
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(6) recommendations for changes in this chapter and |
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Chapter 36 that will facilitate the creation of priority |
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groundwater management areas and the creation and operation of |
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districts; |
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(7) a report on educational efforts in newly |
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designated priority groundwater management areas; and |
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(8) any other information and recommendations that the |
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commission considers relevant. |
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SECTION 2. Sections 36.001(2) and (7), Water Code, are |
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amended to read as follows: |
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(2) "Commission" means the Texas [Natural Resource
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Conservation] Commission on Environmental Quality or its |
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successor. |
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(7) "Subdivision of a groundwater reservoir" means a |
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definable part of a groundwater reservoir in which the groundwater |
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supply will not be appreciably affected by withdrawing water from |
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any other part of the reservoir, as indicated by known geological |
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and hydrological conditions and relationships [and on foreseeable
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economic development] at the time the subdivision is designated or |
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altered. |
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SECTION 3. Sections 36.002(a) and (b), Water Code, are |
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amended to read as follows: |
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(a) A [The legislature recognizes that a] landowner owns the |
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groundwater below the surface of the landowner's land as real |
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property. |
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(b) The groundwater ownership and rights described by this |
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section entitle the landowner, including a landowner's lessees, |
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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) the right to use groundwater for a beneficial use |
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without causing waste; and |
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(3) [have] any other right recognized under common |
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law. |
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SECTION 4. Section 36.020(a), Water Code, is amended to |
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read as follows: |
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(a) At an election to create a district, the temporary |
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directors may include a proposition for the issuance of bonds or |
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notes, the levy of taxes to retire all or part of the bonds or notes, |
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and the levy of a maintenance tax. The maintenance tax rate may not |
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exceed 37.5 [50] cents on each $100 of assessed valuation. |
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SECTION 5. Section 36.061(b), Water Code, is amended to |
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read as follows: |
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(b) The state auditor may conduct a financial audit [the
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records] of any district if the state auditor determines that the |
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audit is necessary. |
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SECTION 6. Section 36.062, Water Code, is amended to read as |
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follows: |
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Sec. 36.062. OFFICES AND MEETING PLACES. (a) The board |
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shall designate from time to time and maintain one or more regular |
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offices for conducting the business of the district and maintaining |
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the records of the district. Such offices must be reasonably |
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accessible to members of the public who reside in the district and |
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may be located either inside or outside the district's boundaries |
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as determined in the discretion of the board. |
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(b) The board shall designate one or more places reasonably |
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accessible to members of the public who reside in the district |
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inside or outside the district for conducting the meetings of the |
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board. |
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SECTION 7. Section 36.101(c), Water Code, is amended to |
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read as follows: |
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(c) The board shall compile its rules and make them |
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available for use and inspection at each of the district's offices |
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[principal office]. |
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SECTION 8. Sections 36.1071(e) and (f), Water Code, are |
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amended to read as follows: |
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(e) In the management plan described under Subsection (a), |
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the district shall: |
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(1) identify the performance standards and management |
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objectives under which the district will operate to achieve the |
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management goals identified under Subsection (a); |
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(2) specify, in as much detail as possible, the |
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actions, procedures, performance, and avoidance that are or may be |
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necessary to effect the plan, including specifications and proposed |
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rules; and |
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(3) include estimates of the following: |
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(A) modeled available groundwater in the |
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district based on the desired future condition established under |
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Section 36.108; |
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(B) the amount of groundwater being used within |
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the district on an annual basis; |
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(C) the annual amount of recharge from |
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precipitation, if any, to the groundwater resources within the |
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district; |
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(D) for each aquifer, the estimated annual volume |
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of water that discharges: |
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(i) from the aquifer to springs and any |
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surface water bodies, including lakes, streams, and rivers; and |
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(ii) through evaporation or transpiration; |
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and |
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(E) the annual volume of lateral and vertical |
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flow into and out of the district within each aquifer and between |
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aquifers in the district[, if a groundwater availability model is
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available;
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[(F)
the projected surface water supply in the
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district according to the most recently adopted state water plan;
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and
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[(G)
the projected total demand for water in the
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district according to the most recently adopted state water plan;
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and
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[(4)
consider the water supply needs and water
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management strategies included in the adopted state water plan]. |
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(f) The district shall adopt rules necessary to implement |
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the management plan. Prior to the development of the management |
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plan and its approval under Section 36.1072, the district may not |
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adopt rules other than rules pertaining to the registration and |
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interim permitting of new and existing wells and rules governing |
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spacing and procedure before the district's board; however, the |
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district may not adopt any rules limiting the production of wells, |
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except rules requiring that groundwater produced from a well be put |
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to a nonwasteful, beneficial use. A newly created [The] district |
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may accept applications for permits under Section 36.113, provided |
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the district does not act on any such application until the |
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district's initial management plan is approved as provided in |
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Section 36.1072. |
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SECTION 9. Section 36.1072(f), Water Code, is amended to |
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read as follows: |
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(f) If the executive administrator does not approve the |
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district's management plan, the executive administrator shall |
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provide to the district, in writing, the reasons for the |
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action. Not later than the 180th day after the date a district |
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receives notice that its management plan has not been approved, the |
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district may submit a revised management plan for review and |
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approval. The executive administrator's decision may be appealed |
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to the development board. If the development board decides not to |
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approve the district's management plan on appeal, the district may |
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request that the conflict be mediated. The district and the board |
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may seek the assistance of the Center for Public Policy Dispute |
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Resolution at The University of Texas School of Law or an |
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alternative dispute resolution system established under Chapter |
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152, Civil Practice and Remedies Code, in obtaining a qualified |
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impartial third party to mediate the conflict. The cost of the |
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mediation services must be specified in the agreement between the |
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parties and the Center for Public Policy Dispute Resolution or the |
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alternative dispute resolution system. If the parties do not |
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resolve the conflict through mediation, the decision of the |
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development board not to approve the district's management plan may |
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be appealed to a district court in Travis County. Costs for the |
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appeal shall be set by the court hearing the appeal. An appeal |
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under this subsection is by trial de novo. The commission shall |
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not take enforcement action against a district under Subchapter I |
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until the latest of the expiration of the 180-day period, the date |
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the development board has taken final action withholding approval |
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of a revised management plan, the date the mediation is completed, |
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or the date a final judgment upholding the board's decision is |
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entered by a district court. An enforcement action may not be |
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taken against a district by the commission [or the state auditor] |
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under Subchapter I because the district's management plan and the |
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approved regional water plan are in conflict while the parties are |
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attempting to resolve the conflict before the development board, in |
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mediation, or in court. Rules of the district continue in full |
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force and effect until all appeals under this subsection have been |
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exhausted and the final judgment is adverse to the district. |
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SECTION 10. Section 36.108(d), Water Code, is amended to |
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read as follows: |
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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 monitoring |
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data, groundwater availability models, and other data or |
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information for the management area and shall propose for adoption |
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desired future conditions for the relevant aquifers within the |
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management area. Before voting on the proposed desired future |
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conditions of the aquifers under Subsection (d-2), the districts |
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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 under Section 36.002; |
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(8) the feasibility of achieving the desired future |
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condition and the degree to which any previously adopted desired |
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future condition is being achieved; and |
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(9) any other information relevant to the specific |
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desired future conditions. |
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SECTION 11. Section 36.113, Water Code, is amended by |
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amending Subsections (c) and (d) and adding Subsection (d-1) to |
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read as follows: |
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(c) A district may require that only the following be |
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included in the permit or permit amendment application, as |
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applicable under the rules of the district: |
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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) other information: |
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(A) included in a rule of the district in effect |
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on the date the application is submitted that specifies what |
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information must be included in an application for a determination |
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of administrative completeness; and |
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(B) reasonably related to an issue that a |
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district is authorized to consider under this chapter. |
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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: |
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(A) existing groundwater and surface water |
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resources; [or] |
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(B) existing permit holders; or |
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(C) registered wells that are exempt from the |
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requirement to obtain a permit under this chapter or district |
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rules; |
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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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(d-1) The district's consideration of the effect the |
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proposed use of water has on a registered well described by |
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Subsection (d)(2)(C) does not affect the registered well's permit |
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exemption under this chapter or district rules. |
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SECTION 12. Section 36.114(h), Water Code, is amended to |
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read as follows: |
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(h) An application is administratively complete if it |
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contains the [application requires] information set forth under [in
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accordance with] Sections 36.113 and 36.1131. A district may not |
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require that additional information be included in an application |
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for a determination of administrative completeness. |
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SECTION 13. Subchapter D, Chapter 36, Water Code, is |
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amended by adding Section 36.1147 to read as follows: |
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Sec. 36.1147. LIMITATION ON APPLICABILITY OF RULES. The |
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rules of a district in effect on the date an application for a |
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permit or a permit amendment is submitted to the district are the |
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only district rules that may govern the district's decision to |
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grant or deny the application. |
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SECTION 14. The heading to Section 36.122, Water Code, is |
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amended to read as follows: |
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Sec. 36.122. EXPORT [TRANSFER] OF GROUNDWATER OUT OF |
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DISTRICT. |
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SECTION 15. Section 36.122, Water Code, is amended by |
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amending Subsections (a), (b), (c), (d), (f), and (k) and adding |
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Subsections (f-1) and (f-2) to read as follows: |
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(a) This section applies to [If] an application for a permit |
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or an amendment to a permit under Section 36.113 that proposes the |
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export [transfer] of groundwater for use outside of a district's |
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boundaries[, the district may also consider the provisions of this
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section in determining whether to grant or deny the permit or permit
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amendment]. |
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(b) A district may promulgate rules requiring a person to |
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obtain an operating [a] permit or an amendment to an operating [a] |
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permit under Section 36.113 from the district to produce and export |
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[for the transfer of] groundwater. A district may not require a |
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separate permit for the export of groundwater for use outside [out] |
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of the district [to:
|
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[(1)
increase, on or after March 2, 1997, the amount of
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groundwater to be transferred under a continuing arrangement in
|
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effect before that date; or
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[(2)
transfer groundwater out of the district on or
|
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after March 2, 1997, under a new arrangement]. |
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(c) Except as provided in Subsection (e) [Section
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36.113(e)], the district may not impose more restrictive permit |
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conditions on exporters [transporters] than the district imposes on |
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[existing] in-district users. A district may not deny a permit |
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solely because the applicant intends to export groundwater for use |
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outside of the district. |
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(d) The district may impose a reasonable fee for processing |
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an application under this section. The fee may not exceed fees that |
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the district imposes for processing other applications under |
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Section 36.113. An application filed under [to comply with] this |
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section shall be considered and processed under the same procedures |
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as other applications for permits under Section 36.113 [and shall
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be combined with applications filed to obtain a permit for
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in-district water use under Section 36.113 from the same
|
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applicant]. |
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(f) In reviewing a proposed transfer of groundwater out of |
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the district, the district shall consider: |
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(1) the availability of water in the district [and in
|
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the proposed receiving area] during the period for which the water |
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supply is requested; and |
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(2) the projected effect of the proposed transfer on |
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aquifer conditions, depletion, subsidence, or effects on existing |
|
permit holders or other groundwater users within the district[; and
|
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[(3)
the approved regional water plan and approved
|
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district management plan]. |
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(f-1) A term for a permit issued under this section that |
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existed on May 29, 2017, shall automatically be extended on or |
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before its expiration: |
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(1) to a term that is not shorter than the term of an |
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operating permit for the production of water to be exported that is |
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in effect at the time of the extension; and |
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(2) for each additional term for which that operating |
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permit for production is renewed under Section 36.1145 or remains |
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in effect under Section 36.1146. |
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(f-2) A term automatically extended under Subsection (f-1) |
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continues to be subject to conditions contained in the permit as |
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issued before the automatic extension. |
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(k) A [Notwithstanding the period specified in Subsections
|
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(i) and (j) during which water may be transferred under a permit, a] |
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district may periodically review the amount of water that may be |
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transferred under the permit and may limit the amount if additional |
|
factors considered in Subsection (f) warrant the limitation, |
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subject to Subsection (c). The review described by this subsection |
|
may take place not more frequently than the period provided for the |
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review or renewal of regular permits issued by the district. In its |
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determination of whether to renew a permit issued under this |
|
section, the district shall consider relevant and current data for |
|
the conservation of groundwater resources and shall consider the |
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permit in the same manner it would consider any other permit in the |
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district. |
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SECTION 16. Section 36.201(b), Water Code, is amended to |
|
read as follows: |
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(b) The board may annually levy taxes to pay the maintenance |
|
and operating expenses of the district at a rate not to exceed 37.5 |
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[50] cents on each $100 of assessed valuation. |
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SECTION 17. Section 36.303(a), Water Code, is amended to |
|
read as follows: |
|
(a) If Section 36.301 or [,] 36.3011[, or 36.302(f)] |
|
applies, the commission, after notice and hearing in accordance |
|
with Chapter 2001, Government Code, shall take action the |
|
commission considers appropriate, including: |
|
(1) issuing an order requiring the district to take |
|
certain actions or to refrain from taking certain actions; |
|
(2) dissolving the board in accordance with Sections |
|
36.305 and 36.307 and calling an election for the purpose of |
|
electing a new board; |
|
(3) requesting the attorney general to bring suit for |
|
the appointment of a receiver to collect the assets and carry on the |
|
business of the groundwater conservation district; or |
|
(4) dissolving the district in accordance with |
|
Sections 36.304, 36.305, and 36.308. |
|
SECTION 18. Sections 36.4051(a) and (d), Water Code, are |
|
amended to read as follows: |
|
(a) The board may take action on any uncontested application |
|
at a properly noticed public meeting held at any time after the |
|
public hearing at which the application is scheduled to be heard. |
|
The board may issue a written order to: |
|
(1) grant the application; |
|
(2) grant the application with special conditions |
|
provided that the applicant agrees to the conditions before the |
|
issuance of the order; or |
|
(3) deny the application. |
|
(d) An applicant may, not later than the 20th day after the |
|
date the board issues an order granting or denying the application, |
|
demand a contested case hearing [if the order:
|
|
[(1)
includes special conditions that were not part of
|
|
the application as finally submitted; or
|
|
[(2)
grants a maximum amount of groundwater production
|
|
that is less than the amount requested in the application]. |
|
SECTION 19. Chapter 36, Water Code, is amended by adding |
|
Subchapter M-1 to read as follows: |
|
SUBCHAPTER M-1. MORATORIUM ON ISSUING PERMIT |
|
Sec. 36.426. PROCEDURE FOR ADOPTING MORATORIUM. A district |
|
may not adopt a moratorium on the issuance of a permit or permit |
|
amendment unless the district: |
|
(1) complies with the notice and hearing procedures |
|
prescribed by Section 36.427; and |
|
(2) makes written findings supporting the district's |
|
determination regarding the issuance, including the district's |
|
justification for imposing the moratorium, if applicable. |
|
Sec. 36.427. NOTICE AND PUBLIC HEARING REQUIREMENTS. (a) A |
|
district may impose a moratorium on the issuance of a permit or |
|
permit amendment only after the district conducts a public hearing |
|
as provided by this section. The public hearing must provide |
|
residents of the district and other affected parties an opportunity |
|
to be heard. |
|
(b) The district shall publish notice of the date, time, and |
|
place of the hearing in a newspaper of general circulation in the |
|
district on or before the fourth day before the date of the hearing. |
|
(c) During the period beginning on the fifth business day |
|
after the date a notice is published under Subsection (b) and ending |
|
on the date the district makes its determination under Subsection |
|
(d), a temporary moratorium is imposed. During that period, a |
|
district may stop issuing permits or permit amendments. |
|
(d) Not later than the 12th day after the date of the public |
|
hearing, the district shall make a final determination on whether |
|
to impose the moratorium and shall issue written findings |
|
supporting the district's determination, including the district's |
|
justification for imposing the moratorium, if applicable. |
|
Sec. 36.428. EXPIRATION OF MORATORIUM; EXTENSION |
|
PROHIBITED. A moratorium imposed under this subchapter expires on |
|
the 90th day after the date the district makes its determination |
|
under Section 36.427(d) to impose the moratorium. The district may |
|
not extend a moratorium imposed under this subchapter. |
|
SECTION 20. Section 8824.101, Special District Local Laws |
|
Code, is amended to read as follows: |
|
Sec. 8824.101. RESTRICTIONS ON GENERAL POWERS. Section |
|
[Sections] 36.103 [and 36.104], Water Code, does [do] not apply to |
|
the district. |
|
SECTION 21. Section 8833.102, Special District Local Laws |
|
Code, is amended to read as follows: |
|
Sec. 8833.102. LIMITATIONS ON DISTRICT POWERS. The |
|
district may not impose: |
|
(1) a tax; [or] |
|
(2) a fee on a well used exclusively for domestic or |
|
livestock watering purposes; or |
|
(3) production fees for an annual period greater than |
|
$1 per acre-foot for water used for agricultural use or 17 cents per |
|
thousand gallons for water used for any other purpose. |
|
SECTION 22. Section 11, Chapter 1321, Acts of the 77th |
|
Legislature, Regular Session, 2001, is amended by adding Subsection |
|
(b-1) to read as follows: |
|
(b-1) The district may not assess production fees for an |
|
annual period greater than $1 per acre-foot for water used for |
|
agricultural use or 17 cents per thousand gallons for water used for |
|
any other purpose. |
|
SECTION 23. The following provisions of the Water Code are |
|
repealed: |
|
(1) Section 36.001(31), as added by Chapter 415 (H.B. |
|
2767), Acts of the 84th Legislature, Regular Session, 2015; |
|
(2) Section 36.104; |
|
(3) Section 36.1072(g); |
|
(4) Section 36.108(d-5); |
|
(5) Sections 36.122(i), (j), (l), (m), (n), (p), and |
|
(q); |
|
(6) Section 36.205(d); and |
|
(7) Section 36.302. |
|
SECTION 24. A moratorium on the issuance of a permit or |
|
permit amendment that is adopted by a groundwater conservation |
|
district before September 1, 2017, may not continue in effect after |
|
November 30, 2017. |
|
SECTION 25. (a) A permit to export groundwater approved by |
|
a groundwater conservation district before the effective date of |
|
this Act is validated and confirmed in all respects. This |
|
subsection does not apply to a permit to export groundwater that is |
|
subject to litigation: |
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(1) that is pending on the effective date of this Act; |
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or |
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(2) that results in final judgment that may not be |
|
appealed that the permit is invalid. |
|
(b) An administratively complete permit application to |
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export groundwater received by a groundwater conservation district |
|
before the effective date of this Act is governed by the law in |
|
effect when the application became administratively complete. The |
|
former law is continued for the purpose of processing an |
|
application received before the effective date of this Act. |
|
(c) Except as provided by Subsection (b) of this section, |
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the changes in law made by this Act apply only to an application for |
|
a permit or a permit amendment that is received by a groundwater |
|
conservation district on or after the effective date of this Act. |
|
An application for a permit or permit amendment that is received |
|
before the effective date of this Act is governed by the law in |
|
effect on the date the application is received, and that law is |
|
continued in effect for that purpose. |
|
SECTION 26. To the extent of any conflict, this Act prevails |
|
over another Act of the 85th Legislature, Regular Session, 2017, |
|
relating to changes to Chapter 36, Water Code, or nonsubstantive |
|
additions to and corrections in enacted codes. |
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SECTION 27. This Act takes effect September 1, 2017. |
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* * * * * |