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.