85R9799 AAF-F
 
  By: Burns H.B. No. 3028
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to groundwater ownership and rights.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 36.001, Water Code, is amended by adding
  Subdivision (32) to read as follows:
               (32)  "Fair share" means a reasonable quantification,
  based on the best available science, of the amount of groundwater in
  place beneath each tract of land overlying an aquifer, subdivision
  of an aquifer, or geologic formation that may be produced:
                     (A)  under the applicable desired future
  conditions adopted under Section 36.108;
                     (B)  under the operating and hydrogeological
  conditions of the area; and
                     (C)  without resulting in the confiscation by
  uncompensated drainage of the fair share of groundwater in place
  under other tracts of land.
         SECTION 2.  Sections 36.002(b), (b-1), (c), and (d), Water
  Code, are amended to read as follows:
         (b)  The groundwater ownership and rights recognized
  [described] by this section entitle the landowner, including a
  landowner's lessees, heirs, or assigns, to:
               (1)  drill for and produce the groundwater below the
  surface of real property, subject to Subsection (d), without
  causing waste or malicious drainage of other property or
  negligently causing subsidence; [and]
               (2)  be afforded a fair share of groundwater when the
  right to drill a well and produce groundwater is regulated under
  this chapter; and
               (3)  have any other right recognized under common law.
         (b-1)  The groundwater ownership and rights recognized
  [described] by this section do not:
               (1)  entitle a landowner, including a landowner's
  lessees, heirs, or assigns, to the [right to capture a] specific
  amount of groundwater below the surface of that landowner's land;
  or
               (2)  affect the existence of common law defenses or
  other defenses to liability under the rule of capture.
         (c)  Nothing in this code shall be construed as granting the
  authority to deprive or divest a landowner, including a landowner's
  lessees, heirs, or assigns, of the groundwater ownership and rights
  recognized [described] by this section.
         (d)  This section does not:
               (1)  prohibit a district from adopting or enforcing
  rules authorized under this chapter for a public purpose consistent
  with Section 59, Article XVI, Texas Constitution [limiting or
  prohibiting the drilling of a well by a landowner for failure or
  inability to comply with minimum well spacing or tract size
  requirements adopted by the district]; or
               (2)  [affect the ability of a district to regulate
  groundwater production as authorized under Section 36.113, 36.116,
  or 36.122 or otherwise under this chapter or a special law governing
  a district; or
               [(3)]  require that a rule adopted by a district
  allocate to each landowner a proportionate share of available
  groundwater for production from the aquifer based on the number of
  acres owned by the landowner.
         SECTION 3.  Section 36.066(g), Water Code, is amended to
  read as follows:
         (g)  If the district prevails in any suit other than a suit in
  which it voluntarily intervenes or in which it challenges the
  validity of a law, rule, or order under the Texas Constitution, the
  district may seek and the court may [shall] grant, in the interests
  of justice and as provided by Subsection (h), in the same action,
  recovery for attorney's fees, costs for expert witnesses, and other
  costs incurred by the district before the court.  The amount of the
  attorney's fees shall be fixed by the court.
         SECTION 4.  Section 36.101(a), Water Code, is amended to
  read as follows:
         (a)  A district may make and enforce rules, including rules
  limiting groundwater production based on tract size or the spacing
  of wells, to provide for conserving, preserving, protecting, and
  recharging of the groundwater or of a groundwater reservoir or its
  subdivisions in order to control subsidence, prevent degradation of
  water quality, or prevent waste of groundwater and to carry out the
  powers and duties provided by this chapter.  In adopting a rule
  under this chapter, a district [shall]:
               (1)  shall consider all groundwater uses and needs;
               (2)  shall develop rules that are fair and impartial;
               (3)  shall protect [consider] the groundwater
  ownership and rights recognized [described] by Section 36.002;
               (4)  may not restrict the exercise of a person's
  groundwater ownership and rights unless it is necessary
  for [consider] the public interest in conservation, preservation,
  protection, recharging, and prevention of waste of groundwater, and
  of groundwater reservoirs or their subdivisions, and in controlling
  subsidence caused by withdrawal of groundwater from those
  groundwater reservoirs or their subdivisions, consistent with the
  objectives of Section 59, Article XVI, Texas Constitution;
               (5)  shall consider the goals developed as part of the
  district's management plan under Section 36.1071; and
               (6)  may not discriminate between land that is
  irrigated for production and land that was irrigated for production
  and enrolled or participating in a federal conservation program.
         SECTION 5.  Section 36.1071(a), Water Code, is amended to
  read as follows:
         (a)  Following notice and hearing, the district shall, in
  coordination with surface water management entities on a regional
  basis, develop a management plan that addresses the following
  management goals, as applicable:
               (1)  providing the most efficient use of groundwater;
               (2)  controlling and preventing waste of groundwater;
               (3)  controlling and preventing subsidence;
               (4)  addressing conjunctive surface water management
  issues;
               (5)  addressing natural resource issues;
               (6)  addressing drought conditions;
               (7)  addressing conservation, recharge enhancement,
  rainwater harvesting, precipitation enhancement, or brush control,
  where appropriate and cost-effective; [and]
               (8)  addressing the desired future conditions adopted
  by the district under Section 36.108; and
               (9)  protecting the groundwater ownership and rights
  recognized by Section 36.002.
         SECTION 6.  The heading to Section 36.108, Water Code, is
  amended to read as follows:
         Sec. 36.108.  ESTABLISHING DESIRED FUTURE CONDITIONS [JOINT
  PLANNING] IN MANAGEMENT AREA.
         SECTION 7.  Sections 36.108(c), (d), and (d-2), Water Code,
  are amended to read as follows:
         (c)  The district representatives shall meet at least
  annually to [conduct joint planning with the other districts in the
  management area and to] review the management plans, the
  accomplishments of the management area, and proposals to adopt new
  or amend existing desired future conditions.  In reviewing the
  management plans, the districts shall consider:
               (1)  the goals of each management plan and its impact on
  planning throughout the management area;
               (2)  the effectiveness of the measures established by
  each district's management plan for protecting private property
  rights, conserving and protecting groundwater, and preventing
  waste, and the effectiveness of these measures in the management
  area generally;
               (3)  any other matters that the boards consider
  relevant to the protection of private property rights, protection
  and conservation of groundwater, and the prevention of waste in the
  management area; and
               (4)  the degree to which each management plan achieves
  the desired future conditions adopted under Subsection (d-4)
  [established during the joint planning process].
         (d)  Not later than September 1, 2010, and every five years
  thereafter, the districts shall consider groundwater availability
  models and other data or information for the management area and
  shall propose for adoption desired future conditions for the
  relevant aquifers within the management area.  Before voting on the
  proposed desired future conditions of the aquifers under Subsection
  (d-2), the districts shall consider:
               (1)  aquifer uses or conditions within the management
  area, including conditions that differ substantially from one
  geographic area to another;
               (2)  the water supply needs and water management
  strategies included in the state water plan;
               (3)  hydrological conditions, including for each
  aquifer in the management area the total estimated recoverable
  storage as provided by the executive administrator, and the average
  annual recharge, inflows, and discharge;
               (4)  other environmental impacts, including impacts on
  spring flow and other interactions between groundwater and surface
  water;
               (5)  the impact on subsidence;
               (6)  socioeconomic impacts reasonably expected to
  occur;
               (7)  the impact on the interests and rights in private
  property, including ownership and the rights of management area
  landowners and their lessees and assigns in groundwater as
  recognized by [under] Section 36.002;
               (8)  the feasibility of achieving the desired future
  condition; and
               (9)  any other information relevant to the specific
  desired future conditions.
         (d-2)  The desired future conditions proposed and approved
  under this section [Subsection (d)] must allow [provide a balance
  between] the highest practicable level of groundwater production of
  the total estimated recoverable storage that is consistent with the
  groundwater ownership and rights recognized by Section 36.002,
  [and] the reasonable conservation, preservation, protection,
  recharging, and prevention of waste of groundwater, and control of
  subsidence in the management area.  This subsection does not
  prohibit the establishment of desired future conditions that
  provide for the reasonable long-term management of groundwater
  resources consistent with the management goals under Section
  36.1071(a).  The desired future conditions proposed under
  Subsection (d) must be approved by a two-thirds vote of all the
  district representatives for distribution to the districts in the
  management area.  A period of not less than 90 days for public
  comments begins on the day the proposed desired future conditions
  are mailed to the districts.  During the public comment period and
  after posting notice as required by Section 36.063, each district
  shall hold a public hearing on any proposed desired future
  conditions relevant to that district.  During the public comment
  period, the district shall make available in its office a copy of
  the proposed desired future conditions and any supporting
  materials, such as the documentation of factors considered under
  Subsection (d) and groundwater availability model run results.  
  After the public hearing, the district shall compile for
  consideration at the next joint planning meeting a summary of
  relevant comments received, any suggested revisions to the proposed
  desired future conditions, and the basis for the revisions.
         SECTION 8.  Sections 36.113(c), (d), (e), (f), and (h),
  Water Code, are amended to read as follows:
         (c)  A district may require that the following be included in
  the permit or permit amendment application:
               (1)  the name and mailing address of the applicant and
  the owner of the land on which the well will be located;
               (2)  if the applicant is other than the owner of the
  property, documentation establishing the applicable authority to
  construct and operate a well for the proposed use;
               (3)  a statement of the nature and purpose of the
  proposed use and the amount of water to be used for each purpose;
               (4)  a water conservation plan or a declaration that
  the applicant will comply with the district's management plan;
               (5)  the location of each well and the estimated rate at
  which water will be withdrawn;
               (6)  a water well closure plan or a declaration that the
  applicant will comply with well plugging guidelines and report
  closure to the commission; [and]
               (7)  a drought contingency plan; and
               (8)  documentation of the applicant's ownership
  interest in the proposed groundwater production that demonstrates:
                     (A)  the application is consistent with the
  applicant's fair share; and
                     (B)  the applicant's production of groundwater
  will not result in the confiscation by uncompensated drainage of
  another person's fair share.
         (d)  This subsection does not apply to the renewal of an
  operating permit issued under Section 36.1145.  Before granting or
  denying a permit, or a permit amendment issued in accordance with
  Section 36.1146, the district shall consider whether:
               (1)  the application conforms to the requirements
  prescribed by this chapter and is accompanied by the prescribed
  fees;
               (2)  the proposed use of water unreasonably affects the
  groundwater ownership and rights recognized by Section 36.002 or
  existing groundwater and surface water resources [or existing
  permit holders];
               (3)  the proposed use of water is dedicated to any
  beneficial use;
               (4)  the proposed use of water is consistent with the
  district's approved management plan;
               (5)  if the well will be located in the Hill Country
  Priority Groundwater Management Area, the proposed use of water
  from the well is wholly or partly to provide water to a pond, lake,
  or reservoir to enhance the appearance of the landscape;
               (6)  the applicant has agreed to avoid waste and
  achieve water conservation; and
               (7)  the applicant has agreed that reasonable diligence
  will be used to protect groundwater quality and that the applicant
  will follow well plugging guidelines at the time of well closure.
         (e)  The district may impose more restrictive permit
  conditions on new permit applications and permit amendment
  applications to increase use by historic users if the limitations:
               (1)  apply to all subsequent new permit applications
  and permit amendment applications to increase use by historic
  users, regardless of type or location of use;
               (2)  bear a reasonable relationship to the existing
  district management plan; [and]
               (3)  are reasonably necessary to protect existing use;
  and
               (4)  are consistent with the groundwater ownership and
  rights recognized by Section 36.002 and with Section 59, Article
  XVI, Texas Constitution.
         (f)  This subsection does not apply to the renewal of an
  operating permit issued under Section 36.1145.  Permits, and permit
  amendments issued in accordance with Section 36.1146, may be issued
  subject to the rules promulgated by the district and subject to
  terms and provisions with reference to the drilling, equipping,
  completion, alteration, or operation of, or production of
  groundwater from, wells or pumps that may be necessary to:
               (1)  protect the groundwater ownership and rights
  recognized by Section 36.002;
               (2)  prevent waste and achieve water conservation;
               (3)  [,] minimize as far as practicable the drawdown of
  the water table or the reduction of artesian pressure;
               (4)  [,] lessen interference between wells; [,] or
               (5)  control and prevent subsidence.
         (h)  In issuing a permit for an existing or historic use, a
  district may not:
               (1)  discriminate between land that is irrigated for
  production and land or wells on land that was irrigated for
  production and enrolled or participating in a federal conservation
  program; or
               (2)  issue a permit that will result in the
  confiscation by uncompensated drainage of another person's fair
  share.
         SECTION 9.  Section 36.116, Water Code, is amended to read as
  follows:
         Sec. 36.116.  REGULATION OF SPACING AND PRODUCTION. (a) In
  order to protect the groundwater ownership and rights recognized by
  Section 36.002, to minimize as far as practicable the drawdown of
  the water table or the reduction of artesian pressure, to control
  subsidence, to prevent interference between wells, to prevent
  degradation of water quality, or to prevent waste, a district by
  rule may regulate:
               (1)  the spacing of water wells by:
                     (A)  requiring all water wells to be spaced a
  certain distance from property lines or adjoining wells;
                     (B)  requiring wells with a certain production
  capacity, pump size, or other characteristic related to the
  construction or operation of and production from a well to be spaced
  a certain distance from property lines or adjoining wells; or
                     (C)  imposing spacing requirements adopted by the
  board; and
               (2)  the production of groundwater by:
                     (A)  setting production limits on wells;
                     (B)  limiting the amount of water produced based
  on acreage or tract size;
                     (C)  limiting the amount of water that may be
  produced from a defined number of acres assigned to an authorized
  well site;
                     (D)  limiting the maximum amount of water that may
  be produced on the basis of acre-feet per acre or gallons per minute
  per well site per acre;
                     (E)  managed depletion; or
                     (F)  any combination of the methods listed above
  in Paragraphs (A) through (E).
         (b)  In promulgating any rules limiting groundwater
  production, the district:
               (1)  may preserve historic or existing use before the
  effective date of the rules to the maximum extent practicable
  consistent with the groundwater ownership and rights recognized by
  Section 36.002, Section 59, Article XVI, Texas Constitution, and
  the district's management plan under Section 36.1071 and as
  provided by Section 36.113; and
               (2)  may adopt a rule only if the district finds that
  the rule is consistent with the public interest.
         (c)  In regulating the production of groundwater based on
  tract size or acreage, a district may consider the service needs or
  service area of a retail public utility in a manner consistent with
  and without resulting in the confiscation by uncompensated drainage
  of the groundwater ownership and rights recognized by Section
  36.002.  For the purposes of this subsection, "retail public
  utility" has [shall have] the meaning provided by Section 13.002.
         (d)  For the protection of the groundwater ownership and
  rights recognized by Section 36.002 and better management of the
  groundwater resources located in a district or if a district
  determines that conditions in or use of an aquifer differ
  substantially from one geographic area of the district to another,
  the district may adopt different rules for:
               (1)  each aquifer, subdivision of an aquifer, or
  geologic strata located in whole or in part within the boundaries of
  the district; or
               (2)  each geographic area overlying an aquifer or
  subdivision of an aquifer located in whole or in part within the
  boundaries of the district.
         (e)  In regulating the production of groundwater under
  Subsection (a)(2), a district:
               (1)  shall select a method that is appropriate based on
  the protection of the groundwater ownership and rights recognized
  by Section 36.002 and hydrogeological conditions of the aquifer or
  aquifers in the district; and
               (2)  may limit the amount of water produced based on
  contiguous surface acreage.
         (f)  A rule adopted under this section must afford each
  person who has an ownership interest in the groundwater within the
  boundaries of the district a fair share of the groundwater as
  recognized by Section 36.002.
         SECTION 10.  Subchapter D, Chapter 36, Water Code, is
  amended by adding Section 36.1161 to read as follows:
         Sec. 36.1161.  PETITION FOR RULEMAKING. (a)  A person who
  has an ownership interest in groundwater may petition a district
  with authority to regulate the groundwater to adopt rules under
  Section 36.116(d).
         (b)  The petitioner has the burden of proof that the rules
  are necessary to protect the groundwater ownership and rights
  recognized by Section 36.002 or to achieve a purpose of this chapter
  because conditions in or use of an aquifer, subdivision of an
  aquifer, or geologic strata differ substantially from:
               (1)  another aquifer, subdivision of an aquifer, or
  geologic strata;
               (2)  any aquifer, subdivision of an aquifer, or
  geologic strata not currently included in an established desired
  future condition, as of January 1, 2013; or
               (3)  one geographic area of the district to another.
         (c)  A district shall require the petitioner to provide
  written notice to each person with an ownership interest in
  groundwater that would be affected by the rules requested in the
  petition.
         (d)  A district may request technical assistance regarding
  the technical merits of the petition from the Texas Water
  Development Board. The Texas Water Development Board shall provide
  a written technical response not later than the 60th day after the
  date the Texas Water Development Board receives a written request
  for assistance by the district under this subsection.
         (e)  A district shall hold a hearing to consider a petition
  submitted under this section in the manner provided by Section
  36.101. A district is not required to provide notice required by
  Sections 36.101(d)(1) through (4).
         (f)  A board may grant, modify, or deny a petition by written
  order. The order must include the findings of the board relevant to
  the evidence provided by the petitioner under Subsection (b).
         (g)  A person affected by and dissatisfied with a rule
  adopted under this section is entitled to file a suit against the
  district or its directors under Section 36.251.
         SECTION 11.  Section 36.117(a), Water Code, is amended to
  read as follows:
         (a)  A district by rule may provide an exemption from the
  district's requirement to obtain any permit required by this
  chapter or the district's rules if the exemption is consistent with
  the groundwater ownership and rights recognized by Section 36.002.
         SECTION 12.  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 13.  The changes in law made by this Act apply only
  to a rule of a groundwater conservation district that is adopted on
  or after the effective date of this Act. A rule adopted before the
  effective date of this Act is subject to the law in effect on the
  date the rule took effect, and that law is continued in effect for
  that purpose.
         SECTION 14.  This Act takes effect September 1, 2017.