Texas Laws - Water Code
WATER CODE
TITLE 2. WATER ADMINISTRATION

SUBTITLE B. WATER RIGHTS (2763)(1-click HTML)

CHAPTER 11. WATER RIGHTS (2764)(1-click HTML)
Sec. 11.001. VESTED RIGHTS NOT AFFECTED. (2765)(1-click HTML)

(a) Nothing in this code affects vested private rights to the use of water, except to the extent that provisions of Subchapter G of this chapter might affect these rights. (2766)

(b) This code does not recognize any riparian right in the owner of any land the title to which passed out of the State of Texas after July 1, 1895. (2767)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (2768)

Sec. 11.002. DEFINITIONS. (2769)(1-click HTML)

In this chapter and in Chapter 12 of this code: (2770)

(1) "Commission" means the Texas Commission on Environmental Quality. (2771)

(2) "Board" means the Texas Water Development Board. (2772)

(3) "Executive director" means the executive director of the Texas Commission on Environmental Quality. (2773)

(4) "Beneficial use" means use of the amount of water which is economically necessary for a purpose authorized by this chapter, when reasonable intelligence and reasonable diligence are used in applying the water to that purpose and shall include conserved water. (2774)

(5) "Water right" means a right acquired under the laws of this state to impound, divert, or use state water. (2775)

(6) "Appropriator" means a person who has made beneficial use of any water in a lawful manner under the provisions of any act of the legislature before the enactment of Chapter 171, General Laws, Acts of the 33rd Legislature, 1913, as amended, and who has filed with the State Board of Water Engineers a record of his appropriation as required by the 1913 Act, as amended, or a person who makes or has made beneficial use of any water within the limitations of a permit lawfully issued by the commission or one of its predecessors. (2776)

(7) Renumbered as subd. (6) by Acts 1985, 69th Leg., ch. 795, Sec. 1.003, eff. Sept. 1, 1985. (2777)

(8) "Conservation" means: (2778)

(A) the development of water resources; and (2779)

(B) those practices, techniques, and technologies that will reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses. (2780)

(9) "Conserved water" means that amount of water saved by a holder of an existing permit, certified filing, or certificate of adjudication through practices, techniques, and technologies that would otherwise be irretrievably lost to all consumptive beneficial uses arising from storage, transportation, distribution, or application. (2781)

(10) "Surplus water" means water in excess of the initial or continued beneficial use of the appropriator. (2782)

(11) "River basin" means a river or coastal basin designated by the board as a river basin under Section 16.051. The term does not include waters originating in the bays or arms of the Gulf of Mexico. (2783)

(12) "Agriculture" means any of the following activities: (2784)

(A) cultivating the soil to produce crops for human food, animal feed, or planting seed or for the production of fibers; (2785)

(B) the practice of floriculture, viticulture, silviculture, and horticulture, including the cultivation of plants in containers or nonsoil media, by a nursery grower; (2786)

(C) raising, feeding, or keeping animals for breeding purposes or for the production of food or fiber, leather, pelts, or other tangible products having a commercial value; (2787)

(D) raising or keeping equine animals; (2788)

(E) wildlife management; (2789)

(F) planting cover crops, including cover crops cultivated for transplantation, or leaving land idle for the purpose of participating in any governmental program or normal crop or livestock rotation procedure; and (2790)

(G) aquaculture, as defined by Section 134.001, Agriculture Code. (2791)

(13) "Agricultural use" means any use or activity involving agriculture, including irrigation. (2792)

(14) "Nursery grower" means a person who grows more than 50 percent of the products that the person either sells or leases, regardless of the variety sold, leased, or grown. For the purpose of this definition, "grow" means the actual cultivation or propagation of the product beyond the mere holding or maintaining of the item prior to sale or lease and typically includes activities associated with the production or multiplying of stock such as the development of new plants from cuttings, grafts, plugs, or seedlings. (2793)

(15) "Environmental flow analysis" means the application of a scientifically derived process for predicting the response of an ecosystem to changes in instream flows or freshwater inflows. (2794)

(16) "Environmental flow regime" means a schedule of flow quantities that reflects seasonal and yearly fluctuations that typically would vary geographically, by specific location in a watershed, and that are shown to be adequate to support a sound ecological environment and to maintain the productivity, extent, and persistence of key aquatic habitats in and along the affected water bodies. (2795)

(17) "Environmental flow standards" means those requirements adopted by the commission under Section 11.1471. (2796)

(18) "Advisory group" means the environmental flows advisory group. (2797)

(19) "Science advisory committee" means the Texas environmental flows science advisory committee. (2798)

(20) "Best management practices" means those voluntary efficiency measures developed by the commission and the board that save a quantifiable amount of water, either directly or indirectly, and that can be implemented within a specified time frame. (2799)

(21) "Utility commission" means the Public Utility Commission of Texas. (2800)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, Sec. 1.01; Acts 1985, 69th Leg., ch. 795, Sec. 1.003, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.057, eff. Aug. 12, 1991; Acts 1997, 75th Leg., ch. 1010, Sec. 2.02, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, Sec. 2.01, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1234, Sec. 11, eff. Sept. 1, 2001. (2801)

Amended by: (2802)

Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.04, eff. September 1, 2007. (2803)

Acts 2007, 80th Leg., R.S., Ch. 1352 (H.B. 4), Sec. 4, eff. June 15, 2007. (2804)

Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.04, eff. September 1, 2007. (2805)

Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 2.04, eff. September 1, 2007. (2806)

Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 24.001, eff. September 1, 2009. (2807)

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 5.01, eff. September 1, 2011. (2808)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 2.05, eff. September 1, 2013. (2809)

Acts 2013, 83rd Leg., R.S., Ch. 171 (S.B. 567), Sec. 5, eff. September 1, 2013. (2810)

Acts 2017, 85th Leg., R.S., Ch. 1097 (H.B. 3735), Sec. 1, eff. September 1, 2017. (2811)

Sec. 11.003. STREAMS THAT FORM BOUNDARIES INCLUDED. (2812)(1-click HTML)

This chapter applies to all streams or other sources of water supply lying upon or forming a part of the boundaries of this state. (2813)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (2814)

Sec. 11.004. COMMISSION TO RECEIVE CERTIFIED COPIES OF JUDGMENTS, ETC. (2815)(1-click HTML)

When any court of record renders a judgment, decree, or order affecting the title to any water right, claim, appropriation, or irrigation facility or affecting any matter over which the commission is given supervision by law, the clerk of the court shall immediately transmit to the commission a certified copy of the judgment, decree, or order. (2816)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.003, eff. Sept. 1, 1985. (2817)

Sec. 11.005. APPLICABILITY TO WORKS UNDER FEDERAL RECLAMATION ACT. (2818)(1-click HTML)

This chapter applies to the construction, maintenance, and operation of irrigation works constructed in this state under the federal reclamation act, as amended (43 U.S.C. Sec. 371 et seq.), to the extent that this chapter is not inconsistent with the federal act or the regulations made under that act by the secretary of the interior. (2819)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (2820)

SUBCHAPTER B. RIGHTS IN STATE WATER (2821)(1-click HTML)
Sec. 11.021. STATE WATER. (2822)(1-click HTML)

(a) The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state. (2823)

(b) Water imported from any source outside the boundaries of the state for use in the state and which is transported through the beds and banks of any navigable stream within the state or by utilizing any facilities owned or operated by the state is the property of the state. (2824)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (2825)

Sec. 11.022. ACQUISITION OF RIGHT TO USE STATE WATER. (2826)(1-click HTML)

The right to the use of state water may be acquired by appropriation in the manner and for the purposes provided in this chapter. When the right to use state water is lawfully acquired, it may be taken or diverted from its natural channel. (2827)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (2828)

Sec. 11.023. PURPOSES FOR WHICH WATER MAY BE APPROPRIATED. (2829)(1-click HTML)

(a) To the extent that state water has not been set aside by the commission under Section 11.1471(a)(2) to meet downstream instream flow needs or freshwater inflow needs, state water may be appropriated, stored, or diverted for: (2830)

(1) domestic and municipal uses, including water for sustaining human life and the life of domestic animals; (2831)

(2) agricultural uses and industrial uses, meaning processes designed to convert materials of a lower order of value into forms having greater usability and commercial value, including the development of power by means other than hydroelectric; (2832)

(3) mining and recovery of minerals; (2833)

(4) hydroelectric power; (2834)

(5) navigation; (2835)

(6) recreation and pleasure; (2836)

(7) public parks; and (2837)

(8) game preserves. (2838)

(b) State water also may be appropriated, stored, or diverted for any other beneficial use. (2839)

(c) Unappropriated storm water and floodwater may be appropriated to recharge underground freshwater bearing sands and aquifers in the portion of the Edwards underground reservoir located within Kinney, Uvalde, Medina, Bexar, Comal, and Hays counties if it can be established by expert testimony that an unreasonable loss of state water will not occur and that the water can be withdrawn at a later time for application to a beneficial use. The normal or ordinary flow of a stream or watercourse may never be appropriated, diverted, or used by a permittee for this recharge purpose. (2840)

(d) When it is put or allowed to sink into the ground, water appropriated under Subsection (c) of this section loses its character and classification as storm water or floodwater and is considered percolating groundwater. (2841)

(e) The amount of water appropriated for each purpose mentioned in this section shall be specifically appropriated for that purpose, subject to the preferences prescribed in Section 11.024 of this code. The commission may authorize appropriation of a single amount or volume of water for more than one purpose of use. In the event that a single amount or volume of water is appropriated for more than one purpose of use, the total amount of water actually diverted for all of the authorized purposes may not exceed the total amount of water appropriated. (2842)

(f) The water of any arm, inlet, or bay of the Gulf of Mexico may be changed from salt water to sweet or fresh water and held or stored by dams, dikes, or other structures and may be taken or diverted for any purpose authorized by this chapter. (2843)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1010, Sec. 2.03, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, Sec. 2.02, eff. Sept. 1, 2001. (2844)

Amended by: (2845)

Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.05, eff. September 1, 2007. (2846)

Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.05, eff. September 1, 2007. (2847)

Sec. 11.0235. POLICY REGARDING WATERS OF THE STATE. (2848)(1-click HTML)

(a) The waters of the state are held in trust for the public, and the right to use state water may be appropriated only as expressly authorized by law. (2849)

(b) Maintaining the biological soundness of the state's rivers, lakes, bays, and estuaries is of great importance to the public's economic health and general well-being. The legislature encourages voluntary water and land stewardship to benefit the water in the state, as defined by Section 26.001. (2850)

(c) The legislature has expressly required the commission while balancing all other public interests to consider and, to the extent practicable, provide for the freshwater inflows and instream flows necessary to maintain the viability of the state's streams, rivers, and bay and estuary systems in the commission's regular granting of permits for the use of state waters. As an essential part of the state's environmental flows policy, all permit conditions relating to freshwater inflows to affected bays and estuaries and instream flow needs must be subject to temporary suspension if necessary for water to be applied to essential beneficial uses during emergencies. (2851)

(d) The legislature has not expressly authorized granting water rights exclusively for: (2852)

(1) instream flows dedicated to environmental needs or inflows to the state's bay and estuary systems; or (2853)

(2) other similar beneficial uses. (2854)

(2855)

Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.06 (2856)

(2857)

(d-1) The legislature has determined that existing water rights that are converted to water rights for environmental purposes should be enforced in a manner consistent with the enforcement of water rights for other purposes as provided by the laws of this state governing the appropriation of state water. (2858)

(2859)

Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.06 (2860)

(2861)

(d-1) The legislature has determined that existing water rights that are amended to authorize use for environmental purposes should be enforced in a manner consistent with the enforcement of water rights for other purposes as provided by the laws of this state governing the appropriation of state water. (2862)

(d-2) The legislature finds that to provide certainty in water management and development and to provide adequate protection of the state's streams, rivers, and bays and estuaries, the state must have a process with specific timelines for prompt action to address environmental flow issues in the state's major basin and bay systems, especially those systems in which unappropriated water is still available. (2863)

(d-3) The legislature finds that: (2864)

(1) in those basins in which water is available for appropriation, the commission should establish an environmental set-aside below which water should not be available for appropriation; and (2865)

(2) in those basins in which the unappropriated water that will be set aside for instream flow and freshwater inflow protection is not sufficient to fully satisfy the environmental flow standards established by the commission, a variety of market approaches, both public and private, for filling the gap must be explored and pursued. (2866)

(d-4) The legislature finds that while the state has pioneered tools to address freshwater inflow needs for bays and estuaries, there are limitations to those tools in light of both scientific and public policy evolution. To fully address bay and estuary environmental flow issues, the foundation of work accomplished by the state should be improved. While the state's instream flow studies program appears to encompass a comprehensive and scientific approach for establishing a process to assess instream flow needs for rivers and streams across the state, more extensive review and examination of the details of the program, which may not be fully developed until the program is under way, are needed to ensure an effective tool for evaluating riverine environmental flow conditions. (2867)

(d-5) The legislature finds that the management of water to meet instream flow and freshwater inflow needs should be evaluated on a regular basis and adapted to reflect both improvements in science related to environmental flows and future changes in projected human needs for water. In addition, the development of management strategies for addressing environmental flow needs should be an ongoing, adaptive process that considers and addresses local issues. (2868)

(d-6) The legislature finds that recommendations for state action to protect instream flows and freshwater inflows should be developed through a consensus-based, regional approach involving balanced representation of stakeholders and that such a process should be encouraged throughout the state. (2869)

(e) The fact that greater pressures and demands are being placed on the water resources of the state makes it of paramount importance to ensure that these important priorities are effectively addressed by detailing how environmental flow standards are to be developed using the environmental studies that have been and are to be performed by the state and others and specifying in clear delegations of authority how those environmental flow standards will be integrated into the regional water planning and water permitting process. (2870)

(f) The legislature recognizes that effective implementation of the approach provided by this chapter for protecting instream flows and freshwater inflows will require more effective water rights administration and enforcement systems than are currently available in most areas of the state. (2871)

Added by Acts 2003, 78th Leg., ch. 1242, Sec. 2, eff. June 20, 2003. (2872)

Amended by: (2873)

Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.06, eff. September 1, 2007. (2874)

Acts 2007, 80th Leg., R.S., Ch. 1352 (H.B. 4), Sec. 5, eff. June 15, 2007. (2875)

Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.06, eff. September 1, 2007. (2876)

Sec. 11.0236. ENVIRONMENTAL FLOWS ADVISORY GROUP. (2877)(1-click HTML)

(a) In recognition of the importance that the ecological soundness of our riverine, bay, and estuary systems and riparian lands has on the economy, health, and well-being of the state there is created the environmental flows advisory group. (2878)

(b) The advisory group is composed of nine members as follows: (2879)

(1) three members appointed by the governor; (2880)

(2) three members of the senate appointed by the lieutenant governor; and (2881)

(3) three members of the house of representatives appointed by the speaker of the house of representatives. (2882)

(c) Of the members appointed under Subsection (b)(1): (2883)

(1) one member must be a member of the commission; (2884)

(2) one member must be a member of the board; and (2885)

(3) one member must be a member of the Parks and Wildlife Commission. (2886)

(d) Each member of the advisory group serves at the will of the person who appointed the member. (2887)

(e) The appointed senator with the most seniority and the appointed house member with the most seniority serve together as co-presiding officers of the advisory group. (2888)

(f) A member of the advisory group is not entitled to receive compensation for service on the advisory group but is entitled to reimbursement of the travel expenses incurred by the member while conducting the business of the advisory group, as provided by the General Appropriations Act. (2889)

(g) The advisory group may accept gifts and grants from any source to be used to carry out a function of the advisory group. (2890)

(h) The commission shall provide staff support for the advisory group. (2891)

(i) The advisory group shall conduct public hearings and study public policy implications for balancing the demands on the water resources of the state resulting from a growing population with the requirements of the riverine, bay, and estuary systems including granting permits for instream flows dedicated to environmental needs or bay and estuary inflows, use of the Texas Water Trust, and any other issues that the advisory group determines have importance and relevance to the protection of environmental flows. In evaluating the options for providing adequate environmental flows, the advisory group shall take notice of the strong public policy imperative that exists in this state recognizing that environmental flows are important to the biological health of our public and private lands, streams and rivers, and bay and estuary systems and are high priorities in the water management process. The advisory group shall specifically address: (2892)

(1) ways that the ecological soundness of those systems will be ensured in the water rights administration and enforcement and water allocation processes; and (2893)

(2) appropriate methods to encourage persons voluntarily to convert reasonable amounts of existing water rights to use for environmental flow protection temporarily or permanently. (2894)

(j) The advisory group may adopt rules, procedures, and policies as needed to administer this section, to implement its responsibilities, and to exercise its authority under Sections 11.02361 and 11.02362. (2895)

(k) Chapter 2110, Government Code, does not apply to the size, composition, or duration of the advisory group. (2896)

(l) Not later than December 1, 2008, and every two years thereafter, the advisory group shall issue and promptly deliver to the governor, lieutenant governor, and speaker of the house of representatives copies of a report summarizing: (2897)

(1) any hearings conducted by the advisory group; (2898)

(2) any studies conducted by the advisory group; (2899)

(3) any legislation proposed by the advisory group; (2900)

(4) progress made in implementing Sections 11.02361 and 11.02362; and (2901)

(5) any other findings and recommendations of the advisory group. (2902)

(m) The advisory group is abolished on the date that the commission has adopted environmental flow standards under Section 11.1471 for all of the river basin and bay systems in this state. (2903)

Added by Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.07, eff. September 1, 2007. (2904)

Added by Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.07, eff. September 1, 2007. (2905)

Sec. 11.02361. TEXAS ENVIRONMENTAL FLOWS SCIENCE ADVISORY COMMITTEE. (2906)(1-click HTML)

(a) The Texas environmental flows science advisory committee consists of at least five but not more than nine members appointed by the advisory group. (2907)

(b) The advisory group shall appoint to the science advisory committee persons who will provide an objective perspective and diverse technical expertise, including expertise in hydrology, hydraulics, water resources, aquatic and terrestrial biology, geomorphology, geology, water quality, computer modeling, and other technical areas pertinent to the evaluation of environmental flows. (2908)

(c) Members of the science advisory committee serve five-year terms expiring March 1. A vacancy on the science advisory committee is filled by appointment by the co-presiding officers of the advisory group for the unexpired term. (2909)

(d) Chapter 2110, Government Code, does not apply to the size, composition, or duration of the science advisory committee. (2910)

(e) The science advisory committee shall: (2911)

(1) serve as an objective scientific body to advise and make recommendations to the advisory group on issues relating to the science of environmental flow protection; and (2912)

(2) develop recommendations to help provide overall direction, coordination, and consistency relating to: (2913)

(A) environmental flow methodologies for bay and estuary studies and instream flow studies; (2914)

(B) environmental flow programs at the commission, the Parks and Wildlife Department, and the board; and (2915)

(C) the work of the basin and bay expert science teams described in Section 11.02362. (2916)

(f) To assist the advisory group to assess the extent to which the recommendations of the science advisory committee are considered and implemented, the commission, the Parks and Wildlife Department, and the board shall provide written reports to the advisory group, at intervals determined by the advisory group, that describe: (2917)

(1) the actions taken by each agency in response to each recommendation; and (2918)

(2) for each recommendation not implemented, the reason it was not implemented. (2919)

(g) The science advisory committee is abolished on the date the advisory group is abolished under Section 11.0236(m). (2920)

Added by Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.07, eff. September 1, 2007. (2921)

Added by Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.07, eff. September 1, 2007. (2922)

Sec. 11.02362. DEVELOPMENT OF ENVIRONMENTAL FLOW REGIME RECOMMENDATIONS. (2923)(1-click HTML)

(a) For the purposes of this section, the advisory group, not later than November 1, 2007, shall define the geographical extent of each river basin and bay system in this state for the sole purpose of developing environmental flow regime recommendations under this section and adoption of environmental flow standards under Section 11.1471. (2924)

(b) The advisory group shall give priority in descending order to the following river basin and bay systems of the state for the purpose of developing environmental flow regime recommendations and adopting environmental flow standards: (2925)

(1) the river basin and bay system consisting of the Trinity and San Jacinto Rivers and Galveston Bay and the river basin and bay system consisting of the Sabine and Neches Rivers and Sabine Lake Bay; (2926)

(2) the river basin and bay system consisting of the Colorado and Lavaca Rivers and Matagorda and Lavaca Bays and the river basin and bay system consisting of the Guadalupe, San Antonio, Mission, and Aransas Rivers and Mission, Copano, Aransas, and San Antonio Bays; and (2927)

(3) the river basin and bay system consisting of the Nueces River and Corpus Christi and Baffin Bays, the river basin and bay system consisting of the Rio Grande, the Rio Grande estuary, and the Lower Laguna Madre, and the Brazos River and its associated bay and estuary system. (2928)

(c) For the river basin and bay systems listed in Subsection (b)(1): (2929)

(1) the advisory group shall appoint the basin and bay area stakeholders committee not later than November 1, 2007; (2930)

(2) the basin and bay area stakeholders committee shall establish a basin and bay expert science team not later than March 1, 2008; (2931)

(3) the basin and bay expert science team shall finalize environmental flow regime recommendations and submit them to the basin and bay area stakeholders committee, the advisory group, and the commission not later than March 1, 2009, except that at the request of the basin and bay area stakeholders committee for good cause shown, the advisory group may extend the deadline provided by this subdivision; (2932)

(4) the basin and bay area stakeholders committee shall submit to the commission its comments on and recommendations regarding the basin and bay expert science team's recommended environmental flow regime not later than September 1, 2009; and (2933)

(5) the commission shall adopt the environmental flow standards as provided by Section 11.1471 not later than September 1, 2010. (2934)

(d) The advisory group shall appoint the basin and bay area stakeholders committees for the river basin and bay systems listed in Subsection (b)(2) not later than September 1, 2008, and shall appoint the basin and bay area stakeholders committees for the river basin and bay systems listed in Subsection (b)(3) not later than September 1, 2009. The advisory group shall establish a schedule for the performance of the tasks listed in Subsections (c)(2) through (5) with regard to the river basin and bay systems listed in Subsections (b)(2) and (3) that will result in the adoption of environmental flow standards for that river basin and bay system by the commission as soon as is reasonably possible. Each basin and bay area stakeholders committee and basin and bay expert science team for a river basin and bay system listed in Subsection (b)(2) or (3) shall make recommendations to the advisory group with regard to the schedule applicable to that river basin and bay system. The advisory group shall consider the recommendations of the basin and bay area stakeholders committee and basin and bay expert science team as well as coordinate with, and give appropriate consideration to the recommendations of, the commission, the Parks and Wildlife Department, and the board in establishing the schedule. (2935)

(e) For a river basin and bay system or a river basin that does not have an associated bay system in this state not listed in Subsection (b), the advisory group shall establish a schedule for the development of environmental flow regime recommendations and the adoption of environmental flow standards. The advisory group shall develop the schedule in consultation with the commission, the Parks and Wildlife Department, the board, and the pertinent basin and bay area stakeholders committee and basin and bay expert science team. The advisory group may, on its own initiative or on request, modify a schedule established under this subsection to be more responsive to particular circumstances, local desires, changing conditions, or time-sensitive conflicts. This subsection does not prohibit, in a river basin and bay system for which the advisory group has not yet established a schedule for the development of environmental flow regime recommendations and the adoption of environmental flow standards, an effort to develop information on environmental flow needs and ways in which those needs can be met by a voluntary consensus-building process. (2936)

(f) The advisory group shall appoint a basin and bay area stakeholders committee for each river basin and bay system in this state for which a schedule for the development of environmental flow regime recommendations and the adoption of environmental flow standards is specified by or established under Subsection (c), (d), or (e). Chapter 2110, Government Code, does not apply to the size, composition, or duration of a basin and bay area stakeholders committee. Each committee must consist of at least 17 members. The membership of each committee must: (2937)

(1) reflect a fair and equitable balance of interest groups concerned with the particular river basin and bay system for which the committee is established; and (2938)

(2) be representative of appropriate stakeholders, including the following if they have a presence in the particular river basin and bay system for which the committee is established: (2939)

(A) agricultural water users, including representatives of each of the following sectors: (2940)

(i) agricultural irrigation; (2941)

(ii) free-range livestock; and (2942)

(iii) concentrated animal feeding operation; (2943)

(B) recreational water users, including coastal recreational anglers and businesses supporting water recreation; (2944)

(C) municipalities; (2945)

(D) soil and water conservation districts; (2946)

(E) industrial water users, including representatives of each of the following sectors: (2947)

(i) refining; (2948)

(ii) chemical manufacturing; (2949)

(iii) electricity generation; and (2950)

(iv) production of paper products or timber; (2951)

(F) commercial fishermen; (2952)

(G) public interest groups; (2953)

(H) regional water planning groups; (2954)

(I) groundwater conservation districts; (2955)

(J) river authorities and other conservation and reclamation districts with jurisdiction over surface water; and (2956)

(K) environmental interests. (2957)

(g) Members of a basin and bay area stakeholders committee serve five-year terms expiring March 1. If a vacancy occurs on a committee, the remaining members of the committee by majority vote shall appoint a member to serve the remainder of the unexpired term. (2958)

(h) Meetings of a basin and bay area stakeholders committee must be open to the public. (2959)

(i) Each basin and bay area stakeholders committee shall establish a basin and bay expert science team for the river basin and bay system for which the committee is established. The basin and bay expert science team must be established not later than six months after the date the basin and bay area stakeholders committee is established. Chapter 2110, Government Code, does not apply to the size, composition, or duration of a basin and bay expert science team. Each basin and bay expert science team must be composed of technical experts with special expertise regarding the river basin and bay system or regarding the development of environmental flow regimes. A person may serve as a member of more than one basin and bay expert science team at the same time. (2960)

(j) The members of a basin and bay expert science team serve five-year terms expiring April 1. A vacancy on a basin and bay expert science team is filled by appointment by the pertinent basin and bay area stakeholders committee to serve the remainder of the unexpired term. (2961)

(k) The science advisory committee shall appoint one of its members to serve as a liaison to each basin and bay expert science team to facilitate coordination and consistency in environmental flow activities throughout the state. The commission, the Parks and Wildlife Department, and the board shall provide technical assistance to each basin and bay expert science team, including information about the studies conducted under Sections 16.058 and 16.059, and may serve as nonvoting members of the basin and bay expert science team to facilitate the development of environmental flow regime recommendations. (2962)

(l) Where reasonably practicable, meetings of a basin and bay expert science team must be open to the public. (2963)

(m) Each basin and bay expert science team shall develop environmental flow analyses and a recommended environmental flow regime for the river basin and bay system for which the team is established through a collaborative process designed to achieve a consensus. In developing the analyses and recommendations, the science team must consider all reasonably available science, without regard to the need for the water for other uses, and the science team's recommendations must be based solely on the best science available. For the Rio Grande below Fort Quitman, any uses attributable to Mexican water flows must be excluded from environmental flow regime recommendations. (2964)

(n) Each basin and bay expert science team shall submit its environmental flow analyses and environmental flow regime recommendations to the pertinent basin and bay area stakeholders committee, the advisory group, and the commission in accordance with the applicable schedule specified by or established under Subsection (c), (d), or (e). The basin and bay area stakeholders committee and the advisory group may not change the environmental flow analyses or environmental flow regime recommendations of the basin and bay expert science team. (2965)

(o) Each basin and bay area stakeholders committee shall review the environmental flow analyses and environmental flow regime recommendations submitted by the committee's basin and bay expert science team and shall consider them in conjunction with other factors, including the present and future needs for water for other uses related to water supply planning in the pertinent river basin and bay system. For the Rio Grande, the basin and bay area stakeholders committee shall also consider the water accounting requirements for any international water sharing treaty, minutes, and agreement applicable to the Rio Grande and the effects on allocation of water by the Rio Grande watermaster in the middle and lower Rio Grande. The Rio Grande basin and bay expert science team may not recommend any environmental flow regime that would result in a violation of a treaty or court decision. The basin and bay area stakeholders committee shall develop recommendations regarding environmental flow standards and strategies to meet the environmental flow standards and submit those recommendations to the commission and to the advisory group in accordance with the applicable schedule specified by or established under Subsection (c), (d), or (e). In developing its recommendations, the basin and bay area stakeholders committee shall operate on a consensus basis to the maximum extent possible. (2966)

(p) In recognition of the importance of adaptive management, after submitting its recommendations regarding environmental flow standards and strategies to meet the environmental flow standards to the commission, each basin and bay area stakeholders committee, with the assistance of the pertinent basin and bay expert science team, shall prepare and submit for approval by the advisory group a work plan. The work plan must: (2967)

(1) establish a periodic review of the basin and bay environmental flow analyses and environmental flow regime recommendations, environmental flow standards, and strategies, to occur at least once every 10 years; (2968)

(2) prescribe specific monitoring, studies, and activities; and (2969)

(3) establish a schedule for continuing the validation or refinement of the basin and bay environmental flow analyses and environmental flow regime recommendations, the environmental flow standards adopted by the commission, and the strategies to achieve those standards. (2970)

(q) In accordance with the applicable schedule specified by or established under Subsection (c), (d), or (e), the advisory group, with input from the science advisory committee, shall review the environmental flow analyses and environmental flow regime recommendations submitted by each basin and bay expert science team. If appropriate, the advisory group shall submit comments on the analyses and recommendations to the commission for use by the commission in adopting rules under Section 11.1471. Comments must be submitted not later than six months after the date of receipt of the analyses and recommendations. (2971)

(r) Notwithstanding the other provisions of this section, in the event the commission, by permit or order, has established an estuary advisory council with specific duties related to implementation of permit conditions for environmental flows, that council may continue in full force and effect and shall act as and perform the duties of the basin and bay area stakeholders committee under this section. The estuary advisory council shall add members from stakeholder groups and from appropriate science and technical groups, if necessary, to fully meet the criteria for membership established in Subsection (f) and shall operate under the provisions of this section. (2972)

(s) Each basin and bay area stakeholders committee and basin and bay expert science team is abolished on the date the advisory group is abolished under Section 11.0236(m). (2973)

Added by Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.07, eff. September 1, 2007. (2974)

Added by Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.07, eff. September 1, 2007. (2975)

Sec. 11.0237. WATER RIGHTS FOR INSTREAM FLOWS DEDICATED TO ENVIRONMENTAL NEEDS OR BAY AND ESTUARY INFLOWS. (2976)(1-click HTML)

(a) The commission may not issue a new permit for instream flows dedicated to environmental needs or bay and estuary inflows. The commission may approve an application to amend an existing permit or certificate of adjudication to change the use to or add a use for instream flows dedicated to environmental needs or bay and estuary inflows. (2977)

(b) This section does not alter the commission's obligations under Section 11.042(a-1), (b), or (c), 11.046(b), 11.085(k)(2)(F), 11.134(b)(3)(D), 11.147, 11.1471, 11.1491, 11.150, 11.152, 16.058, 16.059, or 18.004. (2978)

Added by Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.07, eff. September 1, 2007. (2979)

Added by Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.07, eff. September 1, 2007. (2980)

Amended by: (2981)

Acts 2009, 81st Leg., R.S., Ch. 1016 (H.B. 4231), Sec. 1, eff. June 19, 2009. (2982)

Acts 2015, 84th Leg., R.S., Ch. 756 (H.B. 2031), Sec. 5, eff. June 17, 2015. (2983)

Sec. 11.024. APPROPRIATION: PREFERENCES. (2984)(1-click HTML)

In order to conserve and properly utilize state water, the public welfare requires not only recognition of beneficial uses but also a constructive public policy regarding the preferences between these uses, and it is therefore declared to be the public policy of this state that in appropriating state water preference shall be given to the following uses in the order named: (2985)

(1) domestic and municipal uses, including water for sustaining human life and the life of domestic animals, it being the public policy of the state and for the benefit of the greatest number of people that in the appropriation of water as herein defined, the appropriation of water for domestic and municipal uses shall be and remain superior to the rights of the state to appropriate the same for all other purposes; (2986)

(2) agricultural uses and industrial uses, which means processes designed to convert materials of a lower order of value into forms having greater usability and commercial value, including the development of power by means other than hydroelectric; (2987)

(3) mining and recovery of minerals; (2988)

(4) hydroelectric power; (2989)

(5) navigation; (2990)

(6) recreation and pleasure; and (2991)

(7) other beneficial uses. (2992)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1983, 68th Leg., p. 5460, ch. 1026, Sec. 1, eff. Aug. 29, 1983; Acts 2001, 77th Leg., ch. 966, Sec. 2.03, eff. Sept. 1, 2001. (2993)

Sec. 11.025. SCOPE OF APPROPRIATIVE RIGHT. (2994)(1-click HTML)

A right to use state water under a permit or a certified filing is limited not only to the amount specifically appropriated but also to the amount which is being or can be beneficially used for the purposes specified in the appropriation, and all water not so used is considered not appropriated. (2995)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (2996)

Sec. 11.026. PERFECTION OF AN APPROPRIATION. (2997)(1-click HTML)

No right to appropriate water is perfected unless the water has been beneficially used for a purpose stated in the original declaration of intention to appropriate water or stated in a permit issued by the commission or one of its predecessors. (2998)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (2999)

Sec. 11.027. RIGHTS BETWEEN APPROPRIATORS. (3000)(1-click HTML)

As between appropriators, the first in time is the first in right. (3001)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3002)

Sec. 11.0275. FAIR MARKET VALUE. (3003)(1-click HTML)

Whenever the law requires the payment of fair market value for a water right, fair market value shall be determined by the amount of money that a willing buyer would pay a willing seller, neither of which is under any compulsion to buy or sell, for the water in an arms-length transaction and shall not be limited to the amount of money that the owner of the water right has paid or is paying for the water. (3004)

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 2.04, eff. Sept. 1, 1997. (3005)

Sec. 11.029. TITLE TO APPROPRIATION BY LIMITATION. (3006)(1-click HTML)

When an appropriator from a source of water supply has used water under the terms of a certified filing or a permit for a period of three years, he acquires title to his appropriation by limitation against any other claimant of water from the same source of water supply and against any riparian owner on the same source of water supply. (3007)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3008)

Sec. 11.030. FORFEITURE OF APPROPRIATION. (3009)(1-click HTML)

If any lawful appropriation or use of state water is wilfully abandoned during any three successive years, the right to use the water is forfeited and the water is again subject to appropriation. (3010)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3011)

Sec. 11.031. ANNUAL REPORT. (3012)(1-click HTML)

(a) Not later than March 1 of each year, each person who has a water right issued by the commission or who impounded, diverted, or otherwise used state water during the preceding calendar year shall submit a written report to the commission on a form prescribed by the commission. The report shall contain all information required by the commission to aid in administering the water law and in making inventory of the state's water resources. However, with the exception of those persons who hold water rights, no report is required of persons who take water solely for domestic or livestock purposes. (3013)

(b) A person who fails to file an annual report with the commission as required by Subsection (a) or fails to timely comply with a request by the commission to make information available under Subsection (d) is liable for a penalty for each day the person fails to file the statement or comply with the request after the applicable deadline in an amount not to exceed: (3014)

(1) $100 per day if the person is the holder of a water right authorizing the appropriation of 5,000 acre-feet or less per year; or (3015)

(2) $500 per day if the person is the holder of a water right authorizing the appropriation of more than 5,000 acre-feet per year. (3016)

(b-1) The state may sue to recover a penalty under Subsection (b). (3017)

(c) The commission may waive the requirements of Subsection (a) of this section for a person who has a water right or uses state water in an area of the state where watermaster operations are established. (3018)

(d) Each person who has a water right issued by the commission or who impounds, diverts, or otherwise uses state water shall maintain water use information required under Subsection (a) on a monthly basis during the months a water rights holder uses permitted water. The person shall make the information available to the commission on the commission's request. The executive director shall establish a reasonable deadline by which a person must make available information requested by the commission under this subsection. (3019)

(e) Except as provided by Subsection (a), the commission may request information maintained under Subsection (d) only during a drought or other emergency shortage of water or in response to a complaint. (3020)

(f) Subsection (e) does not affect the authority of a watermaster to obtain water use information under other law. (3021)

(g) The commission shall establish a process by which a report required under Subsection (a) may be submitted electronically through the Internet. (3022)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.003, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 427, Sec. 1, 2, eff. Sept. 1, 1989. (3023)

Amended by: (3024)

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 5.02, eff. September 1, 2011. (3025)

Acts 2013, 83rd Leg., R.S., Ch. 1020 (H.B. 2615), Sec. 1, eff. September 1, 2013. (3026)

Sec. 11.032. RECORDS. (3027)(1-click HTML)

(a) A person who owns and operates a system of waterworks used for a purpose authorized by this code shall keep a detailed record of daily operations so that the quantity of water taken or diverted each calendar year can be determined. (3028)

(b) If the water is used for irrigation, the record must show the number of acres irrigated, the character of the crops grown, and the yield per acre. No survey is required to determine the exact number of acres irrigated. (3029)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3030)

Sec. 11.033. EMINENT DOMAIN. (3031)(1-click HTML)

The right to take water necessary for domestic and municipal supply purposes is primary and fundamental, and the right to recover from other uses water which is essential to domestic and municipal supply purposes is paramount and unquestioned in the policy of the state. All political subdivisions of the state and constitutional governmental agencies exercising delegated legislative powers have the power of eminent domain to be exercised as provided by law for domestic, municipal, and manufacturing uses and for other purposes authorized by this code, including the irrigation of land for all requirements of agricultural employment. (3032)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3033)

Sec. 11.034. RESERVOIR SITE: LAND AND RIGHTS-OF-WAY. (3034)(1-click HTML)

An appropriator who is authorized to construct a dam or reservoir is granted the right-of-way, not to exceed 100 feet wide, and the necessary area for the site, over any public school land, university land, or asylum land of this state and the use of the rock, gravel, and timber on the site and right-of-way for construction purposes, after paying compensation as determined by the commission. An appropriator may acquire the reservoir site and rights-of-way over private land by contract. (3035)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3036)

Sec. 11.035. CONDEMNATION OF PRIVATE PROPERTY. (3037)(1-click HTML)

(a) An appropriator may obtain rights-of-way over private land and may obtain the land necessary for pumping plants, intakes, headgates, and storage reservoirs by condemnation. (3038)

(b) The party obtaining private property by condemnation shall cause damages to be assessed and paid for as provided by the statutes of this state relating to eminent domain. (3039)

(c) If the party exercising the power granted by this section is not a corporation, district, city, or town, he shall apply to the commission for the condemnation. (3040)

(d) The executive director shall have the proposed condemnation investigated. After the investigation, the commission may give notice to the party owning the land proposed to be condemned and hold a hearing on the proposed condemnation. (3041)

(e) If after a hearing the commission determines that the condemnation is necessary, the executive director may institute condemnation proceedings in the name of the State of Texas for the use and benefit of the party who applied for the condemnation and all others similarly situated. (3042)

(f) The parties at whose instance a condemnation suit is instituted shall pay the costs of the suit and condemnation in proportion to the benefits received by each party as fixed by the commission. Before using any of the condemned rights or property, a party receiving the rights or property shall pay the amount of costs fixed by the commission. (3043)

(g) If, after the costs of the condemnation proceedings have been paid, a party seeks to take the benefits of the condemnation proceedings, he shall apply to the commission for the benefits. The commission may grant the application and fix the fees and charges to be paid by the applicant. (3044)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.004, eff. Sept. 1, 1985. (3045)

Sec. 11.036. CONSERVED OR STORED WATER: SUPPLY CONTRACT. (3046)(1-click HTML)

(a) A person, association of persons, corporation, or water improvement or irrigation district having in possession and control any storm water, floodwater, or rainwater that is conserved or stored as authorized by this chapter may contract to supply the water to any person, association of persons, corporation, or water improvement or irrigation district having the right to acquire use of the water. (3047)

(b) The price and terms of the contract shall be just and reasonable and without discrimination, and the contract is subject to the same revision and control as provided in this code for other water rates and charges. If the contract sets forth explicit expiration provisions, no continuation of the service obligation will be implied. (3048)

(c) The terms of a contract may expressly provide that the person using the stored or conserved water is required to develop alternative or replacement supplies prior to the expiration of the contract and may further provide for enforcement of such terms by court order. (3049)

(d) If any person uses the stored or conserved water without first entering into a contract with the party that conserved or stored it, the user shall pay for the use at a rate determined by the commission to be just and reasonable, subject to court review as in other cases. (3050)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1010, Sec. 2.05, eff. Sept. 1, 1997. (3051)

Sec. 11.037. WATER SUPPLIERS: RULES AND REGULATIONS. (3052)(1-click HTML)

(a) Every person, association of persons, corporation, or irrigation district conserving or supplying water for any of the purposes authorized by this chapter shall make and publish reasonable rules and regulations relating to: (3053)

(1) the method of supply; (3054)

(2) the use and distribution of the water; and (3055)

(3) the procedure for applying for the water and for paying for it. (3056)

(b) Each person, association of persons, corporation, and district authorized by law to carry out irrigation powers that is conserving or supplying water for any of the purposes authorized by this chapter may make and publish reasonable rules relating to water conservation, as defined by Subdivision (8)(B), Section 11.002, of this code. (3057)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, Sec. 1.10. (3058)

Sec. 11.038. RIGHTS OF OWNERS OF LAND ADJOINING CANAL, ETC. (3059)(1-click HTML)

(a) A person who owns or holds a possessory interest in land adjoining or contiguous to a canal, ditch, flume, lateral, dam, reservoir, or lake constructed and maintained under the provisions of this chapter and who has secured a right to the use of water in the canal, ditch, flume, lateral, dam, reservoir, or lake is entitled to be supplied from the canal, ditch, flume, lateral, dam, reservoir, or lake with water for agricultural uses, mining, milling, manufacturing, development of power, and stock raising, in accordance with the terms of the person's contract. (3060)

(b) If the person, association of persons, or corporation owning or controlling the water and the person who owns or holds a possessory interest in the adjoining land cannot agree on a price for a permanent water right or for the use of enough water for irrigation of the person's land or for agricultural uses, mining, milling, manufacturing, development of power, or stock raising, then the party owning or controlling the water, if the person has any water not contracted to others, shall furnish the water necessary for these purposes at reasonable and nondiscriminatory prices. (3061)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 2001, 77th Leg., ch. 966, Sec. 2.04, eff. Sept. 1, 2001. (3062)

Sec. 11.039. DISTRIBUTION OF WATER DURING SHORTAGE. (3063)(1-click HTML)

(a) If a shortage of water in a water supply not covered by a water conservation plan prepared in compliance with Texas Natural Resource Conservation Commission or Texas Water Development Board rules results from drought, accident, or other cause, the water to be distributed shall be divided among all customers pro rata, according to the amount each may be entitled to, so that preference is given to no one and everyone suffers alike. (3064)

(b) If a shortage of water in a water supply covered by a water conservation plan prepared in compliance with Texas Natural Resource Conservation Commission or Texas Water Development Board rules results from drought, accident, or other cause, the person, association of persons, or corporation owning or controlling the water shall divide the water to be distributed among all customers pro rata, according to: (3065)

(1) the amount of water to which each customer may be entitled; or (3066)

(2) the amount of water to which each customer may be entitled, less the amount of water the customer would have saved if the customer had operated its water system in compliance with the water conservation plan. (3067)

(c) Nothing in Subsection (a) or (b) precludes the person, association of persons, or corporation owning or controlling the water from supplying water to a person who has a prior vested right to the water under the laws of this state. (3068)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 2001, 77th Leg., ch. 1126, Sec. 1, eff. June 15, 2001. (3069)

Sec. 11.040. PERMANENT WATER RIGHT. (3070)(1-click HTML)

(a) A permanent water right is an easement and passes with the title to land. (3071)

(b) A written instrument conveying a permanent water right may be recorded in the same manner as any other instrument relating to a conveyance of land. (3072)

(c) The owner of a permanent water right is entitled to use water according to the terms of his contract. If there is no contract, the owner is entitled to use water at a just, reasonable, and nondiscriminatory price. (3073)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3074)

Sec. 11.041. DENIAL OF WATER: COMPLAINT. (3075)(1-click HTML)

(a) Any person entitled to receive or use water from any canal, ditch, flume, lateral, dam, reservoir, or lake or from any conserved or stored supply may present to the commission a written petition showing: (3076)

(1) that he is entitled to receive or use the water; (3077)

(2) that he is willing and able to pay a just and reasonable price for the water; (3078)

(3) that the party owning or controlling the water supply has water not contracted to others and available for the petitioner's use; and (3079)

(4) that the party owning or controlling the water supply fails or refuses to supply the available water to the petitioner, or that the price or rental demanded for the available water is not reasonable and just or is discriminatory. (3080)

(b) If the petition is accompanied by a deposit of $25, the executive director shall have a preliminary investigation of the complaint made and determine whether or not there are probable grounds for the complaint. (3081)

(c) If, after preliminary investigation, the executive director determines that probable grounds exist for the complaint, the commission shall enter an order setting a time and place for a hearing on the petition. (3082)

(d) The commission may require the complainant to make an additional deposit or execute a bond satisfactory to the commission in an amount fixed by the commission conditioned on the payment of all costs of the proceeding. (3083)

(e) At least 20 days before the date set for the hearing, the commission shall transmit by registered mail a certified copy of the petition and a certified copy of the hearing order to the person against whom the complaint is made. (3084)

(f) The commission shall hold a hearing on the complaint at the time and place stated in the order. It may hear evidence orally or by affidavit in support of or against the complaint, and it may hear arguments. The utility commission may participate in the hearing if necessary to present evidence on the price or rental demanded for the available water. On completion of the hearing, the commission shall render a written decision. (3085)

(g) If, after the preliminary investigation, the executive director determines that no probable grounds exist for the complaint, the executive director shall dismiss the complaint. The commission may either return the deposit or pay it into the State Treasury. (3086)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.005, eff. Sept. 1, 1985. (3087)

Amended by: (3088)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 2.06, eff. September 1, 2013. (3089)

Acts 2013, 83rd Leg., R.S., Ch. 171 (S.B. 567), Sec. 6, eff. September 1, 2013. (3090)

Sec. 11.042. DELIVERING WATER DOWN BANKS AND BEDS. (3091)(1-click HTML)

(a) Under rules prescribed by the commission, a person, association of persons, corporation, water control and improvement district, water improvement district, or irrigation district supplying stored or conserved water under contract as provided in this chapter may use the bank and bed of any flowing natural stream in the state to convey the water from the place of storage to the place of use or to the diversion point of the appropriator. (3092)

(a-1) With prior authorization granted under rules prescribed by the commission, a person, association of persons, corporation, water control and improvement district, water improvement district, or irrigation district supplying water imported from a source located wholly outside the boundaries of this state, except water imported from a source located in the United Mexican States, may use the bed and banks of any flowing natural stream in the state to convey water for use in this state. The authorization must: (3093)

(1) allow for the diversion of only the amount of water put into a watercourse or stream, less carriage losses; and (3094)

(2) include special conditions adequate to prevent a significant impact to the quality of water in this state. (3095)

(b) A person who wishes to discharge and then subsequently divert and reuse the person's existing return flows derived from privately owned groundwater must obtain prior authorization from the commission for the diversion and the reuse of these return flows. The authorization may allow for the diversion and reuse by the discharger of existing return flows, less carriage losses, and shall be subject to special conditions if necessary to protect an existing water right that was granted based on the use or availability of these return flows. Special conditions may also be provided to help maintain instream uses and freshwater inflows to bays and estuaries. A person wishing to divert and reuse future increases of return flows derived from privately owned groundwater must obtain authorization to reuse increases in return flows before the increase. (3096)

(c) Except as otherwise provided in Subsection (a) of this section, a person who wishes to convey and subsequently divert water in a watercourse or stream must obtain the prior approval of the commission through a bed and banks authorization. The authorization shall allow to be diverted only the amount of water put into a watercourse or stream, less carriage losses and subject to any special conditions that may address the impact of the discharge, conveyance, and diversion on existing permits, certified filings, or certificates of adjudication, instream uses, and freshwater inflows to bays and estuaries. Water discharged into a watercourse or stream under this chapter shall not cause a degradation of water quality to the extent that the stream segment's classification would be lowered. Authorizations under this section and water quality authorizations may be approved in a consolidated permit proceeding. (3097)

(d) Nothing in this section shall be construed to affect an existing project for which water rights and reuse authorizations have been granted by the commission before September 1, 1997. (3098)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.006, eff. Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1010, Sec. 2.06, eff. Sept. 1, 1997. (3099)

Amended by: (3100)

Acts 2009, 81st Leg., R.S., Ch. 1016 (H.B. 4231), Sec. 2, eff. June 19, 2009. (3101)

Sec. 11.043. RECORDATION OF CONVEYANCE OF IRRIGATION WORK. (3102)(1-click HTML)

(a) A conveyance of a ditch, canal, or reservoir or other irrigation work or an interest in such an irrigation work must be executed and acknowledged in the same manner as a conveyance of real estate. Such a conveyance must be recorded in the deed records of the county in which the ditch, canal, or reservoir is located. (3103)

(b) If a conveyance of property covered by Subsection (a) of this section is not made in the prescribed manner, it is null and void against subsequent purchasers in good faith and for valuable consideration. (3104)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3105)

Sec. 11.044. ROADS AND HIGHWAYS. (3106)(1-click HTML)

(a) An appropriator has the right to construct ditches, canals, or pipelines along or across all roads and highways necessary for the construction of waterworks. Bridges, culverts, or siphons shall be constructed at all road and highway crossings as necessary to prevent any impairment of the uses of the road or highway. Approval of the construction plans and specifications shall be obtained from the owner of the road or highway prior to the installation of conveyance facilities. (3107)

(b) If any public road, highway, or public bridge is located on the ground necessary for a damsite, reservoir, or lake, the commissioners court shall change the road and remove the bridge so that it does not interfere with the construction of the proposed dam, reservoir, or lake. The party desiring to construct the dam, reservoir, or lake shall pay the expense of moving the bridge or roadway. (3108)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1981, 67th Leg., p. 939, ch. 353, Sec. 1, eff. Aug. 31, 1981. (3109)

Sec. 11.045. DITCHES AND CANALS. (3110)(1-click HTML)

An appropriator is entitled to construct ditches and canals along or across any stream of water. (3111)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3112)

Sec. 11.046. RETURN SURPLUS WATER. (3113)(1-click HTML)

(a) A person who takes or diverts water from a watercourse or stream for the purposes authorized by this code shall conduct surplus water back to the watercourse or stream from which it was taken if the water can be returned by gravity flow and it is reasonably practicable to do so. (3114)

(b) In granting an application for a water right, the commission may include conditions in the water right providing for the return of surplus water, in a specific amount or percentage of water diverted, and the return point on a watercourse or stream as necessary to protect senior downstream permits, certified filings, or certificates of adjudication or to provide flows for instream uses or bays and estuaries. (3115)

(c) Except as specifically provided otherwise in the water right, water appropriated under a permit, certified filing, or certificate of adjudication may, prior to its release into a watercourse or stream, be beneficially used and reused by the holder of a permit, certified filing, or certificate of adjudication for the purposes and locations of use provided in the permit, certified filing, or certificate of adjudication. Once water has been diverted under a permit, certified filing, or certificate of adjudication and then returned to a watercourse or stream, however, it is considered surplus water and therefore subject to reservation for instream uses or beneficial inflows or to appropriation by others unless expressly provided otherwise in the permit, certified filing, or certificate of adjudication. (3116)

(d) Water appropriated under a permit, certified filing, or certificate of adjudication which is recirculated within a reservoir for cooling purposes shall not be considered to be surplus for purposes of this chapter. (3117)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1010, Sec. 2.07, eff. Sept. 1, 1997. (3118)

Sec. 11.047. FAILURE TO FENCE. (3119)(1-click HTML)

If a person, association of persons, corporation, or water improvement or irrigation district that owns or controls a ditch, canal, reservoir, dam, or lake does not keep it securely fenced, there is no cause of action against the owner of livestock that trespass. (3120)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3121)

Sec. 11.048. COST OF MAINTAINING IRRIGATION DITCH. (3122)(1-click HTML)

(a) If an irrigation ditch is owned or used by two or more persons, mutual or cooperative companies, or corporations, each party who has an interest in the ditch shall pay his proportionate share of the cost of operating and maintaining the ditch. (3123)

(b) If a person who owns a joint interest in a ditch refuses to do or to pay for his proportionate share of the work that is reasonably necessary for the proper maintenance and operation of the ditch, the other owners may, after giving him 10 days written notice, proceed themselves to do his share of the necessary work and recover from him the reasonable expense or value of the work or labor performed. The action for the cost of the work may be brought in any court having jurisdiction over the amount in controversy. (3124)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3125)

Sec. 11.049. EXAMINATION AND SURVEY. (3126)(1-click HTML)

A person may make any necessary examination and survey in order to select the most advantageous sites for a reservoir and rights-of-way to be used for any of the purposes authorized by this chapter, and for this purpose a person may enter the land or water of any other person. (3127)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3128)

Sec. 11.050. TIDEWATER GATES, ETC. (3129)(1-click HTML)

(a) An appropriator authorized to take water for irrigation, subject to the laws of the United States and the regulations made under its authority, may construct gates or breakwaters, dams, or dikes with gates, in waters wholly in this state, as necessary to prevent pollution of the fresh water of any river, bayou, or stream due to the ebb and flow of the tides of the Gulf of Mexico. (3130)

(b) The work shall be done in such a manner that navigation of vessels on the stream is not obstructed, and where any gate is used, the appropriator shall at all times keep a competent person at the gate to allow free navigation. (3131)

(c) A dam, dike, or breakwater constructed under this section may not be placed at any point except where Gulf tides ebb and flow and may not be constructed so as to obstruct the flow of fresh water to any appropriator or riparian owner downstream. (3132)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3133)

Sec. 11.051. IRRIGATION: LIEN ON CROPS. (3134)(1-click HTML)

(a) A person who constructs a ditch, canal, dam, lake, or reservoir for the purpose of irrigation and who leases, rents, furnishes, or supplies water to any person for irrigation, with or without a contract, has a preference lien superior to every other lien on the irrigated crops. However, when any irrigation district or conservation and reclamation district obtains a water supply under contract with the United States, the board of directors of the district, by resolution entered in its minutes, with the consent of the secretary of the interior, may waive the preference lien in whole or in part. (3135)

(b) To enforce the lien, the lienholder has all the rights and remedies prescribed by Articles 5222 through 5239, Revised Civil Statutes of Texas, 1925. (3136)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3137)

Sec. 11.052. ACTIVITIES UNDER THE FEDERAL RECLAMATION ACT. (3138)(1-click HTML)

The Secretary of the Interior of the United States is authorized to conduct any activities in this state necessary to perform his duties under the federal reclamation act, as amended (43 U.S.C. Section 371 et seq.). (3139)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3140)

Sec. 11.053. EMERGENCY ORDER CONCERNING WATER RIGHTS. (3141)(1-click HTML)

(a) During a period of drought or other emergency shortage of water, as defined by commission rule, the executive director by order may, in accordance with the priority of water rights established by Section 11.027: (3142)

(1) temporarily suspend the right of any person who holds a water right to use the water; and (3143)

(2) temporarily adjust the diversions of water by water rights holders. (3144)

(b) The executive director in ordering a suspension or adjustment under this section shall ensure that an action taken: (3145)

(1) maximizes the beneficial use of water; (3146)

(2) minimizes the impact on water rights holders; (3147)

(3) prevents the waste of water; (3148)

(4) takes into consideration the efforts of the affected water rights holders to develop and implement the water conservation plans and drought contingency plans required by this chapter; (3149)

(5) to the greatest extent practicable, conforms to the order of preferences established by Section 11.024; and (3150)

(6) does not require the release of water that, at the time the order is issued, is lawfully stored in a reservoir under water rights associated with that reservoir. (3151)

(c) The commission shall adopt rules to implement this section, including rules: (3152)

(1) defining a drought or other emergency shortage of water for purposes of this section; and (3153)

(2) specifying the: (3154)

(A) conditions under which the executive director may issue an order under this section; (3155)

(B) terms of an order issued under this section, including the maximum duration of a temporary suspension or adjustment under this section; and (3156)

(C) procedures for notice of, an opportunity for a hearing on, and the appeal to the commission of an order issued under this section. (3157)

Added by Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 5.03, eff. September 1, 2011. (3158)

SUBCHAPTER C. UNLAWFUL USE, DIVERSION, WASTE, ETC. (3159)(1-click HTML)
Sec. 11.081. UNLAWFUL USE OF STATE WATER. (3160)(1-click HTML)

No person may wilfully take, divert, or appropriate any state water for any purpose without first complying with all applicable requirements of this chapter. (3161)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, Sec. 3, eff. Sept. 1, 1997. (3162)

Sec. 11.082. UNLAWFUL USE: CIVIL PENALTY. (3163)(1-click HTML)

(a) A person who wilfully takes, diverts, or appropriates state water without complying with the applicable requirements of this chapter is also liable to a civil penalty of not more than $5,000 for each day he continues the taking, diversion, or appropriation. (3164)

(a-1) Notwithstanding Section 18.002, this section does not apply to a violation of: (3165)

(1) Section 18.003 or a permit issued under that section; or (3166)

(2) Section 18.004 or an authorization granted under that section. (3167)

(b) The state may recover the penalties prescribed in Subsection (a) by suit brought for that purpose in a court of competent jurisdiction. The state may seek those penalties regardless of whether a watermaster has been appointed for the water division, river basin, or segment of a river basin where the unlawful use is alleged to have occurred. (3168)

(c) An action to collect the penalty provided in this section must be brought within two years from the date of the alleged violation. (3169)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1, eff. June 17, 1981; Acts 1997, 75th Leg., ch. 1010, Sec. 3.01, eff. Sept. 1, 1997. (3170)

Amended by: (3171)

Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.08, eff. September 1, 2007. (3172)

Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.08, eff. September 1, 2007. (3173)

Acts 2015, 84th Leg., R.S., Ch. 756 (H.B. 2031), Sec. 6, eff. June 17, 2015. (3174)

Sec. 11.083. OTHER UNLAWFUL TAKING. (3175)(1-click HTML)

(a) No person may wilfully open, close, change, or interfere with any headgate or water box without lawful authority. (3176)

(b) No person may wilfully use water or conduct water through his ditch or upon his land unless he is entitled to do so. (3177)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, Sec. 4, eff. Sept. 1, 1997. (3178)

Sec. 11.084. SALE OF PERMANENT WATER RIGHT WITHOUT A PERMIT. (3179)(1-click HTML)

No person may sell or offer to sell a permanent water right unless he has perfected a right to appropriate state water by a certified filing, or unless he has obtained a permit from the commission, authorizing the use of the water for the purposes for which the permanent water right is conveyed. (3180)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, Sec. 5, eff. Sept. 1, 1997. (3181)

Sec. 11.0841. CIVIL REMEDY. (3182)(1-click HTML)

(a) Nothing in this chapter affects the right of any private corporation, individual, or political subdivision that has a justiciable interest in pursuing any available common-law remedy to enforce a right or to prevent or seek redress or compensation for the violation of a right or otherwise redress an injury. (3183)

(b) A district court may award the costs of litigation, including reasonable attorney fees and expert costs, to any political subdivision of the state, private corporation, or individual that is a water right holder and that prevails in a suit for injunctive relief to redress an unauthorized diversion, impoundment, or use of surface water in violation of this chapter or a rule adopted pursuant to this chapter. (3184)

(c) For purposes of this section, the Parks and Wildlife Department has: (3185)

(1) the rights of a holder of a water right that is held in the Texas Water Trust, including the right to file suit in a civil court to prevent the unlawful use of such a right; (3186)

(2) the right to act in the same manner that a holder of a water right may act to protect the holder's rights in seeking to prevent any person from appropriating water in violation of a set-aside established by the commission under Section 11.1471 to meet instream flow needs or freshwater inflow needs; and (3187)

(3) the right to file suit in a civil court to prevent the unlawful use of a set-aside established under Section 11.1471. (3188)

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 3.02, eff. Sept. 1, 1997. (3189)

Amended by: (3190)

Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.09, eff. September 1, 2007. (3191)

Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.09, eff. September 1, 2007. (3192)

Sec. 11.0842. ADMINISTRATIVE PENALTY. (3193)(1-click HTML)

(a) If a person violates this chapter, a rule or order adopted under this chapter or Section 16.236, or a permit, certified filing, or certificate of adjudication issued under this chapter, the commission may assess an administrative penalty against that person as provided by this section. The commission may assess an administrative penalty for a violation relating to a water division or a river basin or segment of a river basin regardless of whether a watermaster has been appointed for the water division or river basin or segment of the river basin. (3194)

(a-1) Notwithstanding Section 18.002, this section does not apply to a violation of: (3195)

(1) Section 18.003 or a permit issued under that section; or (3196)

(2) Section 18.004 or an authorization granted under that section. (3197)

(b) The penalty may be in an amount not to exceed $5,000 for each day the person is in violation of this chapter, the rule or order adopted under this chapter, or the permit, certified filing, or certificate of adjudication issued under this chapter. The penalty may be in an amount not to exceed $1,000 for each day the person is in violation of the rule or order adopted under Section 16.236 of this code. Each day a violation continues may be considered a separate violation for purposes of penalty assessment. (3198)

(c) In determining the amount of the penalty, the commission shall consider: (3199)

(1) the nature, circumstances, extent, duration, and gravity of the prohibited acts, with special emphasis on the impairment of an existing permit, certified filing, or certificate of adjudication or the hazard or potential hazard created to the health, safety, or welfare of the public; (3200)

(2) the impact of the violation on the instream uses, water quality, fish and wildlife habitat, or beneficial freshwater inflows to bays and estuaries; (3201)

(3) with respect to the alleged violator: (3202)

(A) the history and extent of previous violations; (3203)

(B) the degree of culpability, including whether the violation was attributable to mechanical or electrical failures and whether the violation could have been reasonably anticipated and avoided; (3204)

(C) demonstrated good faith, including actions taken by the alleged violator to rectify the cause of the violation and to compensate affected persons; (3205)

(D) any economic benefit gained through the violation; and (3206)

(E) the amount necessary to deter future violations; and (3207)

(4) any other matters that justice may require. (3208)

(d) If, after examination of a possible violation and the facts surrounding that possible violation, the executive director concludes that a violation has occurred, the executive director shall issue a preliminary report stating the facts on which that conclusion was based, recommending that an administrative penalty under this section be imposed on the person charged, and recommending the amount of the penalty. The executive director shall base the recommended amount of the proposed penalty on the factors provided by Subsection (c) of this section and shall analyze each factor for the benefit of the commission. (3209)

(e) No later than the 10th day after the date on which the report is issued, the executive director shall give written notice of the report to the person charged with the violation. The notice shall include a brief summary of the charges, a statement of the amount of the penalty recommended, and a statement of the right of the person charged to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (3210)

(f) No later than the 20th day after the date on which notice is received, the person charged may either give to the commission written consent to the executive director's report, including the recommended penalty, or make a written request for a hearing. (3211)

(g) If the person charged with the violation consents to the penalty recommended by the executive director or fails to timely respond to the notice, the commission by order shall either assess the penalty or order a hearing to be held on the findings and recommendations in the executive director's report. If the commission assesses the penalty recommended by the report, the commission shall give written notice of its decision to the person charged. (3212)

(h) If the person charged requests or the commission orders a hearing, the commission shall call a hearing and give notice of the hearing. As a result of the hearing, the commission by order either may find that a violation has occurred and may assess a penalty, may find that a violation has occurred but that no penalty should be assessed, or may find that no violation has occurred. All proceedings under this subsection are subject to Chapter 2001, Government Code. In making any penalty decision, the commission shall analyze each of the factors provided by Subsection (c) of this section. (3213)

(i) The commission shall give notice of its decision to the person charged, and if the commission finds that a violation has occurred and assesses an administrative penalty, the commission shall give written notice to the person charged of its findings, of the amount of the penalty, and of the person's right to judicial review of the commission's order. If the commission is required to give notice of a penalty under this subsection or Subsection (g) of this section, the commission shall file notice of its decision in the Texas Register not later than the 10th day after the date on which the decision is adopted. (3214)

(j) Within the 30-day period immediately following the day on which the commission's order is final, as provided by Subchapter F, Chapter 2001, Government Code, the person charged with the penalty shall: (3215)

(1) pay the penalty in full; (3216)

(2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or (3217)

(3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (3218)

(k) Within the 30-day period, a person who acts under Subsection (j)(3) of this section may: (3219)

(1) stay enforcement of the penalty by: (3220)

(A) paying the amount of the penalty to the court for placement in an escrow account; or (3221)

(B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the commission's order is final; or (3222)

(2) request the court to stay enforcement of the penalty by: (3223)

(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and (3224)

(B) giving a copy of the affidavit to the commission by certified mail. (3225)

(l) If the commission receives a copy of an affidavit under Subsection (k)(2) of this section, it may file with the court within five days after the date the copy is received a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. (3226)

(m) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the commission may refer the matter to the attorney general for collection of the amount of the penalty. (3227)

(n) Judicial review of the order or decision of the commission assessing the penalty shall be under the substantial evidence rule and shall be instituted by filing a petition with a district court in Travis County, as provided by Subchapter G, Chapter 2001, Government Code. (3228)

(o) A penalty collected under this section shall be deposited in the state treasury to the credit of the general revenue fund. (3229)

(p) Notwithstanding any other provision to the contrary, the commission may compromise, modify, or remit, with or without condition, any penalty imposed under this section. (3230)

(q) Payment of an administrative penalty under this section shall be full and complete satisfaction of the violation for which the administrative penalty is assessed and shall preclude any other civil or criminal penalty for the same violation. (3231)

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 3.02, eff. Sept. 1, 1997. (3232)

Amended by: (3233)

Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.10, eff. September 1, 2007. (3234)

Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.10, eff. September 1, 2007. (3235)

Acts 2015, 84th Leg., R.S., Ch. 756 (H.B. 2031), Sec. 7, eff. June 17, 2015. (3236)

Sec. 11.0843. FIELD CITATION. (3237)(1-click HTML)

(a) Upon witnessing a violation of this chapter or a rule or order or a water right issued under this chapter, the executive director or a person designated by the executive director, including a watermaster or the watermaster's deputy, may issue the alleged violator a field citation alleging that a violation has occurred and providing the alleged violator the option of either: (3238)

(1) without admitting to or denying the alleged violation, paying an administrative penalty in accordance with the predetermined penalty amount established under Subsection (b) and taking remedial action as provided in the citation; or (3239)

(2) requesting a hearing on the alleged violation in accordance with Section 11.0842. (3240)

(b) By rule the commission shall establish penalty amounts corresponding to types of violations of this chapter or rules or orders adopted or water rights issued under this chapter. (3241)

(c) A penalty collected under this section shall be deposited in the state treasury to the credit of the general revenue fund. (3242)

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 3.02, eff. Sept. 1, 1997. (3243)

Amended by: (3244)

Acts 2007, 80th Leg., R.S., Ch. 1351 (H.B. 3), Sec. 1.11, eff. September 1, 2007. (3245)

Acts 2007, 80th Leg., R.S., Ch. 1430 (S.B. 3), Sec. 1.11, eff. September 1, 2007. (3246)

Sec. 11.085. INTERBASIN TRANSFERS. (3247)(1-click HTML)

(a) No person may take or divert any state water from a river basin in this state and transfer such water to any other river basin without first applying for and receiving a water right or an amendment to a permit, certified filing, or certificate of adjudication from the commission authorizing the transfer. (3248)

(b) The application must include: (3249)

(1) the contract price of the water to be transferred; (3250)

(2) a statement of each general category of proposed use of the water to be transferred and a detailed description of the proposed uses and users under each category; and (3251)

(3) the cost of diverting, conveying, distributing, and supplying the water to, and treating the water for, the proposed users. (3252)

(c) The applicant shall provide the information described by Subsection (b) of this section to any person on request and without cost. (3253)

(d) Prior to taking action on an application for an interbasin transfer, the commission shall conduct at least one public meeting to receive comments in both the basin of origin of the water proposed for transfer and the basin receiving water from the proposed transfer. Notice shall be provided pursuant to Subsection (g) of this section. Any person may present relevant information and data at the meeting on the criteria which the commission is to consider related to the interbasin transfer. (3254)

(e) In addition to the public meetings required by Subsection (d), if the application is contested in a manner requiring an evidentiary hearing under the rules of the commission, the commission shall give notice and hold an evidentiary hearing, in accordance with commission rules and applicable state law. An evidentiary hearing on an application to transfer water authorized under an existing water right is limited to considering issues related to the requirements of this section. (3255)

(f) Notice of an application for an interbasin transfer shall be mailed to the following: (3256)

(1) all holders of permits, certified filings, or certificates of adjudication located in whole or in part in the basin of origin; (3257)

(2) each county judge of a county located in whole or in part in the basin of origin; (3258)

(3) each mayor of a city with a population of 1,000 or more located in whole or in part in the basin of origin; and (3259)

(4) all groundwater conservation districts located in whole or in part in the basin of origin; and (3260)

(5) each state legislator in both basins. (3261)

(g) The applicant shall cause the notice of application for an interbasin transfer to be published in two different weeks within a 30-day period in one or more newspapers having general circulation in each county located in whole or in part in the basin of origin or the receiving basin. The published notice may not be smaller than 96.8 square centimeters or 15 square inches with the shortest dimension at least 7.6 centimeters or three inches. The notice of application and public meetings shall be combined in the mailed and published notices. (3262)

(h) The notice of application must state how a person may obtain the information described by Subsection (b) of this section. (3263)

(i) The applicant shall pay the cost of notice required to be provided under this section. The commission by rule may establish procedures for payment of those costs. (3264)

(j) In addition to other requirements of this code relating to the review of and action on an application for a new water right or amended permit, certified filing, or certificate of adjudication, the commission shall: (3265)

(1) request review and comment on an application for an interbasin transfer from each county judge of a county located in whole or in part in the basin of origin. A county judge should make comment only after seeking advice from the county commissioners court; and (3266)

(2) give consideration to the comments of each county judge of a county located in whole or in part in the basin of origin prior to taking action on an application for an interbasin transfer. (3267)

(k) In addition to other requirements of this code relating to the review of and action on an application for a new water right or amended permit, certified filing, or certificate of adjudication, the commission shall weigh the effects of the proposed transfer by considering: (3268)

(1) the need for the water in the basin of origin and in the proposed receiving basin based on the period for which the water supply is requested, but not to exceed 50 years; (3269)

(2) factors identified in the applicable approved regional water plans which address the following: (3270)

(A) the availability of feasible and practicable alternative supplies in the receiving basin to the water proposed for transfer; (3271)

(B) the amount and purposes of use in the receiving basin for which water is needed; (3272)

(C) proposed methods and efforts by the receiving basin to avoid waste and implement water conservation and drought contingency measures; (3273)

(D) proposed methods and efforts by the receiving basin to put the water proposed for transfer to beneficial use; (3274)

(E) the projected economic impact that is reasonably expected to occur in each basin as a result of the transfer; and (3275)

(F) the projected impacts of the proposed transfer that are reasonably expected to occur on existing water rights, instream uses, water quality, aquatic and riparian habitat, and bays and estuaries that must be assessed under Sections 11.147, 11.150, and 11.152 of this code in each basin. If the water sought to be transferred is currently authorized to be used under an existing permit, certified filing, or certificate of adjudication, such impacts shall only be considered in relation to that portion of the permit, certified filing, or certificate of adjudication proposed for transfer and shall be based on historical uses of the permit, certified filing, or certificate of adjudication for which amendment is sought; (3276)

(3) proposed mitigation or compensation, if any, to the basin of origin by the applicant; (3277)

(4) the continued need to use the water for the purposes authorized under the existing permit, certified filing, or certificate of adjudication, if an amendment to an existing water right is sought; and (3278)

(5) the information required to be submitted by the applicant. (3279)

(l) The commission may grant, in whole or in part, an application for an interbasin transfer only to the extent that: (3280)

(1) the detriments to the basin of origin during the proposed transfer period are less than the benefits to the receiving basin during the proposed transfer period, as determined by the commission based on consideration of the factors described by Subsection (k); and (3281)

(2) the applicant for the interbasin transfer has prepared a drought contingency plan and has developed and implemented a water conservation plan that will result in the highest practicable levels of water conservation and efficiency achievable within the jurisdiction of the applicant. (3282)

(m) The commission may grant new or amended water rights under this section with or without specific terms or periods of use and with specific conditions under which a transfer of water may occur. (3283)

(n) If the transfer of water is based on a contractual sale of water, the new water right or amended permit, certified filing, or certificate of adjudication authorizing the transfer shall contain a condition for a term or period not greater than the term of the contract, including any extension or renewal of the contract. (3284)

(o) The parties to a contract for an interbasin transfer may include provisions for compensation and mitigation. If the party from the basin of origin is a government entity, each county judge of a county located in whole or in part in the basin of origin may provide input on the appropriate compensation and mitigation for the interbasin transfer. (3285)

(p) A river basin may not be redesignated in order to allow a transfer or diversion of water otherwise in violation of this section. (3286)

(q) A person who takes or diverts water in violation of this section is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $1,000 or by confinement in the county jail for not more than six months. (3287)

(r) A person commits a separate offense each day he continues to take or divert water in violation of this section. (3288)

(s) Any proposed transfer of all or a portion of a water right under this section is junior in priority to water rights granted before the time application for transfer is accepted for filing. (3289)

(t) Any proposed transfer of all or a portion of a water right under this section from a river basin in which two or more river authorities or water districts created under Section 59, Article XVI, Texas Constitution, have written agreements or permits that provide for the coordinated operation of their respective reservoirs to maximize the amount of water for beneficial use within their respective water services areas shall be junior in priority to water rights granted before the time application for transfer is accepted for filing. (3290)

(u) An appropriator of water for municipal purposes in the basin of origin may, at the appropriator's option, be a party in any hearings under this section. (3291)

(v) The provisions of this section, except Subsection (a), do not apply to: (3292)

(1) a proposed transfer which in combination with any existing transfers totals less than 3,000 acre-feet of water per annum from the same permit, certified filing, or certificate of adjudication; (3293)

(2) a request for an emergency transfer of water; (3294)

(3) a proposed transfer from a basin to its adjoining coastal basin; (3295)

(4) a proposed transfer from the part of the geographic area of a county or municipality, or the part of the retail service area of a retail public utility as defined by Section 13.002, that is within the basin of origin for use in that part of the geographic area of the county or municipality, or that contiguous part of the retail service area of the utility, not within the basin of origin; or (3296)

(5) a proposed transfer of water that is: (3297)

(A) imported from a source located wholly outside the boundaries of this state, except water that is imported from a source located in the United Mexican States; (3298)

(B) for use in this state; and (3299)

(C) transported by using the bed and banks of any flowing natural stream located in this state. (3300)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1010, Sec. 2.08, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, Sec. 2.05, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1234, Sec. 12, eff. Sept. 1, 2001. (3301)

Amended by: (3302)

Acts 2009, 81st Leg., R.S., Ch. 1016 (H.B. 4231), Sec. 3, eff. June 19, 2009. (3303)

Acts 2013, 83rd Leg., R.S., Ch. 1065 (H.B. 3233), Sec. 1, eff. September 1, 2013. (3304)

Sec. 11.086. OVERFLOW CAUSED BY DIVERSION OF WATER. (3305)(1-click HTML)

(a) No person may divert or impound the natural flow of surface waters in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded. (3306)

(b) A person whose property is injured by an overflow of water caused by an unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the overflow. (3307)

(c) The prohibition of Subsection (a) of this section does not in any way affect the construction and maintenance of levees and other improvements to control floods, overflows, and freshets in rivers, creeks, and streams or the construction of canals for conveying water for irrigation or other purposes authorized by this code. However, this subsection does not authorize any person to construct a canal, lateral canal, or ditch that obstructs a river, creek, bayou, gully, slough, ditch, or other well-defined natural drainage. (3308)

(d) Where gullies or sloughs have cut away or intersected the banks of a river or creek to allow floodwaters from the river or creek to overflow the land nearby, the owner of the flooded land may fill the mouth of the gullies or sloughs up to the height of the adjoining banks of the river or creek without liability to other property owners. (3309)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977. (3310)

Sec. 11.087. DIVERSION OF WATER ON INTERNATIONAL STREAM. (3311)(1-click HTML)

(a) When storm water or floodwater is released from a dam or reservoir on an international stream and the water is designated for use or storage downstream by a specified user who is legally entitled to receive it, no other person may store, divert, appropriate, or use the water or interfere with its passage downstream. (3312)

(b) The commission may make and enforce rules and orders to implement the provisions of this section, including rules and orders designed to: (3313)

(1) establish an orderly system for water releases and diversions in order to protect vested rights and to avoid the loss of released water; (3314)

(2) prescribe the time that releases of water may begin and end; (3315)

(3) determine the proportionate quantities of the released water in transit and the water that would have been flowing in the stream without the addition of the released water; (3316)

(4) require each owner or operator of a dam or reservoir on the stream between the point of release and the point of destination to allow free passage of the released water in transit; and (3317)

(5) establish other requirements the commission considers necessary to effectuate the purposes of this section. (3318)

(c) Orders made by the commission to effectuate its rules under this section shall be mailed by certified mail to each diverter of water and to each reservoir owner on the stream between the point of release and the point of destination of the released water as shown by the records of the commission. (3319)

(d) Repealed by Acts 1997, 75th Leg., ch. 1072, Sec. 60(a)(1), eff. Sept. 1, 1997. (3320)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.007, eff. Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1072, Sec. 6, 60(a)(1), eff. Sept. 1, 1997. (3321)

Sec. 11.0871. TEMPORARY DIVERSION OF WATER ON INTERNATIONAL STREAM. (3322)(1-click HTML)

(a) The commission may authorize, under conditions stated in an order, a watermaster to provide for the temporary diversion and use by holders of water rights of storm water or floodwater that spills from dams and reservoirs on an international stream and otherwise would flow into the Gulf of Mexico without opportunity for beneficial use. (3323)

(b) In an order made by the commission under this section, the commission may not discriminate between holders of water rights from an international stream except to the extent necessary to protect the holders of water rights from the same source of supply. (3324)

(c) The commission shall give notice by mail to holders of water rights from an international stream and shall hold an evidentiary hearing before entry of an order under this section. (3325)

Added by Acts 1981, 67th Leg., p. 293, ch. 117, Sec. 1, eff. May 13, 1981. (3326)

Sec. 11.088. DESTRUCTION OF WATERWORKS. (3327)(1-click HTML)

No person may wilfully cut, dig, break down, destroy, or injure or open a gate, bank, embankment, or side of any ditch, canal, reservoir, flume, tunnel or feeder, pump or machinery, building, structure, or other work which is the property of another, or in which another owns an interest, or which is lawfully possessed or being used by another, and which is used for milling, mining, manufacturing, the development of power, domestic purposes, agricultural uses, or stock raising, with intent to: (3328)

(1) maliciously injure a person, association, corporation, water improvement or irrigation district; (3329)

(2) gain advantage for himself; or (3330)

(3) take or steal water or cause water to run out or waste out of the ditch, canal, or reservoir, feeder, or flume for his own advantage or to the injury of a person lawfully entitled to the use of the water or the use or management of the ditch, canal, tunnel, reservoir, feeder, flume, machine, structure, or other irrigation work. (3331)

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff. Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, Sec. 7, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, Sec. 2.06, eff. Sept. 1, 2001. (3332)

Sec. 11.089. JOHNSON GRASS OR RUSSIAN THISTLE. (3333)(1-click HTML)

(a) No person who owns, leases, or operates a ditch, canal, or reservoir or who cultivates land abutting a reservoir, ditch, flume, canal, wasteway, or lateral may permit Johnson grass or Russian thistle to go to seed on the waterway within 10 feet of the high-water line if the waterway crosses or lies on the land owned or controlled by him. (3334)

(b) The provisions of this section are not applicable in Tom Green, Sterling, Irion, Schleicher, McCullough, Brewster, Menard, Maverick, Kinney, Val Verde, and San Saba counties. (3335)

  

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