WATER CODE
SUBTITLE B. WATER RIGHTS
CHAPTER 11. WATER RIGHTS
SUBCHAPTER A. GENERAL PROVISIONS
§ 11.001. VESTED RIGHTS NOT AFFECTED. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.002. DEFINITIONS. In this chapter and in Chapter
12 of this code:
(1) "Commission" means the Texas Natural Resource
Conservation Commission.
(2) "Board" means the Texas Water Development Board.
(3) "Executive director" means the executive director
of the Texas Natural Resource Conservation Commission.
(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.
(5) "Water right" means a right acquired under the
laws of this state to impound, divert, or use state water.
(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.
(7) Renumbered as subd. (6) by Acts 1985, 69th Leg.,
ch. 795, § 1.003, eff. Sept. 1, 1985.
(8) "Conservation" means:
(A) the development of water resources; and
(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.
(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.
(10) "Surplus water" means water in excess of the
initial or continued beneficial use of the appropriator.
(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.
(12) "Agriculture" means any of the following
activities:
(A) cultivating the soil to produce crops for
human food, animal feed, or planting seed or for the production of
fibers;
(B) the practice of floriculture, viticulture,
silviculture, and horticulture, including the cultivation of
plants in containers or nonsoil media, by a nursery grower;
(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;
(D) raising or keeping equine animals;
(E) wildlife management; and
(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.
(13) "Agricultural use" means any use or activity
involving agriculture, including irrigation.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, § 1.01; Acts 1985,
69th Leg., ch. 795, § 1.003, eff. Sept. 1, 1985; Acts 1991, 72nd
Leg., 1st C.S., ch. 3, § 1.057, eff. Aug. 12, 1991; Acts 1997,
75th Leg., ch. 1010, § 2.02, eff. Sept. 1, 1997; Acts 2001, 77th
Leg., ch. 966, § 2.01, eff. Sept. 1, 2001; Acts 2001, 77th Leg.,
ch. 1234, § 11, eff. Sept. 1, 2001.
§ 11.003. STREAMS THAT FORM BOUNDARIES INCLUDED. This
chapter applies to all streams or other sources of water supply
lying upon or forming a part of the boundaries of this state.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.004. COMMISSION TO RECEIVE CERTIFIED COPIES OF
JUDGMENTS, ETC. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.003, eff.
Sept. 1, 1985.
§ 11.005. APPLICABILITY TO WORKS UNDER FEDERAL
RECLAMATION ACT. 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. §
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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
SUBCHAPTER B. RIGHTS IN STATE WATER
§ 11.021. STATE WATER. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.022. ACQUISITION OF RIGHT TO USE STATE WATER. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.023. PURPOSES FOR WHICH WATER MAY BE
APPROPRIATED. (a) State water may be appropriated, stored, or
diverted for:
(1) domestic and municipal uses, including water for
sustaining human life and the life of domestic animals;
(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;
(3) mining and recovery of minerals;
(4) hydroelectric power;
(5) navigation;
(6) recreation and pleasure;
(7) public parks; and
(8) game preserves.
(b) State water also may be appropriated, stored, or
diverted for any other beneficial use.
(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.
(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.
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1010, § 2.03, eff.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, § 2.02, eff. Sept.
1, 2001.
§ 11.0235. POLICY REGARDING WATERS OF THE
STATE. (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.
(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.
(c) The legislature has expressly required the commission
while balancing all other interests to consider and provide for the
freshwater inflows necessary to maintain the viability of the
state's bay and estuary systems in the commission's regular
granting of permits for the use of state waters.
(d) The legislature has not expressly authorized granting
water rights exclusively for:
(1) instream flows dedicated to environmental needs or
inflows to the state's bay and estuary systems; or
(2) other similar beneficial uses.
(e) The fact that greater pressures and demands are being
placed on the water resources of the state makes it of paramount
importance to reexamine the process for ensuring that these
important priorities are effectively addressed in clear
delegations of authority to the commission.
Added by Acts 2003, 78th Leg., ch. 1242, § 2, eff. June 20, 2003.
§ 11.0236. STUDY COMMISSION ON WATER FOR ENVIRONMENTAL
FLOWS.
Text of section effective until September 1, 2005
(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 Study Commission on Water for Environmental Flows.
(b) The study commission is composed of 15 members as
follows:
(1) two members appointed by the governor;
(2) five members appointed by the lieutenant governor;
(3) five members appointed by the speaker of the house
of representatives;
(4) the presiding officer of the commission or the
presiding officer's designee;
(5) the chairman of the board or the chairman's
designee; and
(6) the presiding officer of the Parks and Wildlife
Commission or the presiding officer's designee.
(c) Of the members appointed under Subsection (b)(2):
(1) one member must represent a river authority or
municipal water supply agency or authority;
(2) one member must represent an entity that is
distinguished by its efforts in resource protection; and
(3) three members must be members of the senate.
(d) Of the members appointed under Subsection (b)(3):
(1) one member must represent a river authority or
municipal water supply agency or authority;
(2) one member must represent an entity that is
distinguished by its efforts in resource protection; and
(3) three members must be members of the house of
representatives.
(e) Each appointed member of the study commission serves at
the will of the person who appointed the member.
(f) The appointed senator with the most seniority and the
appointed house member with the most seniority serve together as
co-presiding officers of the study commission.
(g) A member of the study commission is not entitled to
receive compensation for service on the study commission but is
entitled to reimbursement of the travel expenses incurred by the
member while conducting the business of the study commission, as
provided by the General Appropriations Act.
(h) The study commission may accept gifts and grants from
any source to be used to carry out a function of the study
commission.
(i) The commission shall provide staff support for the study
commission.
(j) The study commission 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 study commission
determines have importance and relevance to the protection of
environmental flows. In evaluating the options for providing
adequate environmental flows, the study commission 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 parks, game preserves, and bay and estuary
systems and are high priorities in the permitting process. The
study commission shall specifically address ways that the
ecological soundness of these systems will be ensured in the water
allocation process.
(k) The study commission:
(1) shall appoint an advisory scientific committee
that will:
(A) serve as impartial scientific advisors and
reviewers for the study commission; and
(B) have a membership of no fewer than five and no
more than nine total members chosen by the study commission to
represent a variety of areas of relevant technical expertise;
(2) may appoint additional advisory committees to
assist the study commission; and
(3) may draft proposed legislation to modify existing
water rights permitting statutes.
(l) Not later than December 1, 2004, the study commission
shall issue a report summarizing:
(1) any hearings conducted by the study commission;
(2) any studies conducted by the study commission;
(3) any legislation proposed by the study commission;
and
(4) any other findings and recommendations of the
study commission.
(m) The study commission shall promptly deliver copies of
the report to the governor, lieutenant governor, and speaker of the
house of representatives.
(n) The study commission shall adopt rules to administer
this section.
(o) The study commission is abolished and this section
expires September 1, 2005.
Added by Acts 2003, 78th Leg., ch. 1242, § 2, eff. June 20, 2003.
§ 11.0237. WATER RIGHTS FOR INSTREAM FLOWS DEDICATED TO
ENVIRONMENTAL NEEDS OR BAY AND ESTUARY INFLOWS.
Text of section effective until September 1, 2005
(a) The commission may not issue a new permit for instream
flows dedicated to environmental needs or bay and estuary inflows.
This section does not prohibit the commission from issuing an
amendment to 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.
(b) This section does not alter the commission's
obligations under Section 11.042(b), 11.046(b), 11.085(k)(2)(F),
11.134(b)(3)(D), 11.147, 11.1491, 16.058, or 16.059.
(c) This section expires September 1, 2005.
Added by Acts 2003, 78th Leg., ch. 1242, § 2, eff. June 20, 2003.
§ 11.024. APPROPRIATION: PREFERENCES. 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:
(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;
(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;
(3) mining and recovery of minerals;
(4) hydroelectric power;
(5) navigation;
(6) recreation and pleasure; and
(7) other beneficial uses.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1983, 68th Leg., p. 5460, ch. 1026, § 1, eff.
Aug. 29, 1983; Acts 2001, 77th Leg., ch. 966, § 2.03, eff. Sept.
1, 2001.
§ 11.025. SCOPE OF APPROPRIATIVE RIGHT. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.026. PERFECTION OF AN APPROPRIATION. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.027. RIGHTS BETWEEN APPROPRIATORS. As between
appropriators, the first in time is the first in right.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.0275. FAIR MARKET VALUE. 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.
Added by Acts 1997, 75th Leg., ch. 1010, § 2.04, eff. Sept. 1,
1997.
§ 11.029. TITLE TO APPROPRIATION BY LIMITATION. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.030. FORFEITURE OF APPROPRIATION. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.031. ANNUAL REPORT. (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.
(b) A person who fails to file an annual report with the
commission as required by this section is liable to a penalty of
$25, plus $1 per day for each day he fails to file the statement
after March 1. However, the maximum penalty under this section is
$150. The state may sue to recover the penalty.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.003, eff.
Sept. 1, 1985; Acts 1989, 71st Leg., ch. 427, § 1, 2, eff. Sept.
1, 1989.
§ 11.032. RECORDS. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.033. EMINENT DOMAIN. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.034. RESERVOIR SITE: LAND AND RIGHTS-OF-WAY. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.035. CONDEMNATION OF PRIVATE PROPERTY. (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.
(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.
(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.
(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.
(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.
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.004, eff.
Sept. 1, 1985.
§ 11.036. CONSERVED OR STORED WATER: SUPPLY
CONTRACT. (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.
(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.
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1010, § 2.05, eff.
Sept. 1, 1997.
§ 11.037. WATER SUPPLIERS: RULES AND
REGULATIONS. (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:
(1) the method of supply;
(2) the use and distribution of the water; and
(3) the procedure for applying for the water and for
paying for it.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, § 1.10.
§ 11.038. RIGHTS OF OWNERS OF LAND ADJOINING CANAL,
ETC. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 2001, 77th Leg., ch. 966, § 2.04, eff. Sept.
1, 2001.
§ 11.039. DISTRIBUTION OF WATER DURING
SHORTAGE. (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.
(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:
(1) the amount of water to which each customer may be
entitled; or
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 2001, 77th Leg., ch. 1126, § 1, eff. June 15,
2001.
§ 11.040. PERMANENT WATER RIGHT. (a) A permanent
water right is an easement and passes with the title to land.
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.041. DENIAL OF WATER: COMPLAINT. (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:
(1) that he is entitled to receive or use the water;
(2) that he is willing and able to pay a just and
reasonable price for the water;
(3) that the party owning or controlling the water
supply has water not contracted to others and available for the
petitioner's use; and
(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.
(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.
(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.
(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.
(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.
(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. On completion of the hearing, the commission shall
render a written decision.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.005, eff.
Sept. 1, 1985.
§ 11.042. DELIVERING WATER DOWN BANKS AND
BEDS. (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.
(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.
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.006, eff.
Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1010, § 2.06, eff.
Sept. 1, 1997.
§ 11.043. RECORDATION OF CONVEYANCE OF IRRIGATION
WORK. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.044. ROADS AND HIGHWAYS. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 939, ch. 353, § 1, eff.
Aug. 31, 1981.
§ 11.045. DITCHES AND CANALS. An appropriator is
entitled to construct ditches and canals along or across any stream
of water.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.046. RETURN SURPLUS WATER. (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.
(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.
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1010, § 2.07, eff.
Sept. 1, 1997.
§ 11.047. FAILURE TO FENCE. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.048. COST OF MAINTAINING IRRIGATION
DITCH. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.049. EXAMINATION AND SURVEY. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.050. TIDEWATER GATES, ETC. (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.
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.051. IRRIGATION: LIEN ON CROPS. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.052. ACTIVITIES UNDER THE FEDERAL RECLAMATION
ACT. 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.).
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
SUBCHAPTER C. UNLAWFUL USE, DIVERSION, WASTE, ETC.
§ 11.081. UNLAWFUL USE OF STATE WATER. No person may
wilfully take, divert, or appropriate any state water for any
purpose without first complying with all applicable requirements of
this chapter.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 3, eff. Sept. 1,
1997.
§ 11.082. UNLAWFUL USE: CIVIL PENALTY. (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.
(b) The state may recover the penalties prescribed in
Subsection (a) of this section by suit brought for that purpose in a
court of competent jurisdiction.
(c) An action to collect the penalty provided in this
section must be brought within two years from the date of the
alleged violation.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, § 1, eff.
June 17, 1981; Acts 1997, 75th Leg., ch. 1010, § 3.01, eff.
Sept. 1, 1997.
§ 11.083. OTHER UNLAWFUL TAKING. (a) No person may
wilfully open, close, change, or interfere with any headgate or
water box without lawful authority.
(b) No person may wilfully use water or conduct water
through his ditch or upon his land unless he is entitled to do so.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 4, eff. Sept. 1,
1997.
§ 11.084. SALE OF PERMANENT WATER RIGHT WITHOUT A
PERMIT. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 5, eff. Sept. 1,
1997.
§ 11.0841. CIVIL REMEDY. (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.
(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.
Added by Acts 1997, 75th Leg., ch. 1010, § 3.02, eff. Sept. 1,
1997.
§ 11.0842. ADMINISTRATIVE PENALTY. (a) If a person
violates this chapter, a rule or order adopted under this chapter or
Section 16.236 of this code, 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.
(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.
(c) In determining the amount of the penalty, the commission
shall consider:
(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;
(2) the impact of the violation on the instream uses,
water quality, fish and wildlife habitat, or beneficial freshwater
inflows to bays and estuaries;
(3) with respect to the alleged violator:
(A) the history and extent of previous
violations;
(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;
(C) demonstrated good faith, including actions
taken by the alleged violator to rectify the cause of the violation
and to compensate affected persons;
(D) any economic benefit gained through the
violation; and
(E) the amount necessary to deter future
violations; and
(4) any other matters that justice may require.
(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.
(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.
(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.
(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.
(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.
(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.
(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:
(1) pay the penalty in full;
(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
(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.
(k) Within the 30-day period, a person who acts under
Subsection (j)(3) of this section may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court
for placement in an escrow account; or
(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
(2) request the court to stay enforcement of the
penalty by:
(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
(B) giving a copy of the affidavit to the
commission by certified mail.
(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.
(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.
(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 .
(o) A penalty collected under this section shall be
deposited in the state treasury to the credit of the general revenue
fund.
(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.
(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.
Added by Acts 1997, 75th Leg., ch. 1010, § 3.02, eff. Sept. 1,
1997.
§ 11.0843. FIELD CITATION. (a) Upon witnessing a
violation of this chapter or a rule or order or a water right issued
under this chapter, a watermaster or the watermaster's deputy, as
defined by commission rule, may issue the alleged violator a field
citation alleging that a violation has occurred and providing the
alleged violator the option of either:
(1) without admitting to or denying the alleged
violation, paying an administrative penalty in accordance with the
predetermined penalty amount established under Subsection (b) of
this section and taking remedial action as provided in the
citation; or
(2) requesting a hearing on the alleged violation in
accordance with Section 11.0842 of this code.
(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.
(c) A penalty collected under this section shall be
deposited in the state treasury to the credit of the general revenue
fund.
Added by Acts 1997, 75th Leg., ch. 1010, § 3.02, eff. Sept. 1,
1997.
§ 11.085. INTERBASIN TRANSFERS. (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.
(b) The application must include:
(1) the contract price of the water to be transferred;
(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;
(3) the cost of diverting, conveying, distributing,
and supplying the water to, and treating the water for, the proposed
users; and
(4) the projected effect on user rates and fees for
each class of ratepayers.
(c) The applicant shall provide the information described
by Subsection (b) of this section to any person on request and
without cost.
(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.
(e) In addition to the public meetings required by
Subsection (d) of this section, 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.
(f) Notice of an application for an interbasin transfer
shall be mailed to the following:
(1) all holders of permits, certified filings, or
certificates of adjudication located in whole or in part in the
basin of origin;
(2) each county judge of a county located in whole or
in part in the basin of origin;
(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
(4) all groundwater conservation districts located in
whole or in part in the basin of origin; and
(5) each state legislator in both basins.
(g) The applicant shall cause the notice of application for
an interbasin transfer to be published once a week for two
consecutive weeks 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.
(h) The notice of application must state how a person may
obtain the information described by Subsection (b) of this section.
(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.
(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:
(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
(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.
(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:
(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;
(2) factors identified in the applicable approved
regional water plans which address the following:
(A) the availability of feasible and practicable
alternative supplies in the receiving basin to the water proposed
for transfer;
(B) the amount and purposes of use in the
receiving basin for which water is needed;
(C) proposed methods and efforts by the receiving
basin to avoid waste and implement water conservation and drought
contingency measures;
(D) proposed methods and efforts by the receiving
basin to put the water proposed for transfer to beneficial use;
(E) the projected economic impact that is
reasonably expected to occur in each basin as a result of the
transfer; and
(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;
(3) proposed mitigation or compensation, if any, to
the basin of origin by the applicant;
(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
(5) the information required to be submitted by the
applicant.
(l) The commission may grant, in whole or in part, an
application for an interbasin transfer only to the extent that:
(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; and
(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.
(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.
(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
contract term.
(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.
(p) A river basin may not be redesignated in order to allow a
transfer or diversion of water otherwise in violation of this
section.
(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.
(r) A person commits a separate offense each day he
continues to take or divert water in violation of this section.
(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.
(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.
(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.
(v) The provisions of this section, except Subsection (a),
do not apply to:
(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;
(2) a request for an emergency transfer of water;
(3) a proposed transfer from a basin to its adjoining
coastal basin; or
(4) a proposed transfer from a basin to a county or
municipality or the municipality's retail service area that is
partially within the basin for use in that part of the county or
municipality and the municipality's retail service area not within
the basin.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1010, § 2.08, eff.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, § 2.05, eff. Sept.
1, 2001; Acts 2001, 77th Leg., ch. 1234, § 12, eff. Sept. 1,
2001.
§ 11.086. OVERFLOW CAUSED BY DIVERSION OF
WATER. (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.
(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.
(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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.087. DIVERSION OF WATER ON INTERNATIONAL
STREAM. (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.
(b) The commission may make and enforce rules and orders to
implement the provisions of this section, including rules and
orders designed to:
(1) establish an orderly system for water releases and
diversions in order to protect vested rights and to avoid the loss
of released water;
(2) prescribe the time that releases of water may
begin and end;
(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;
(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
(5) establish other requirements the commission
considers necessary to effectuate the purposes of this section.
(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.
(d) Repealed by Acts 1997, 75th Leg., ch. 1072, §
60(a)(1), eff. Sept. 1, 1997.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.007, eff.
Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1072, § 6, 60(a)(1),
eff. Sept. 1, 1997.
§ 11.0871. TEMPORARY DIVERSION OF WATER ON INTERNATIONAL
STREAM. (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.
(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.
(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.
Added by Acts 1981, 67th Leg., p. 293, ch. 117, § 1, eff. May 13,
1981.
§ 11.088. DESTRUCTION OF WATERWORKS. 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:
(1) maliciously injure a person, association,
corporation, water improvement or irrigation district;
(2) gain advantage for himself; or
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 7, eff. Sept. 1,
1997; Acts 2001, 77th Leg., ch. 966, § 2.06, eff. Sept. 1, 2001.
§ 11.089. JOHNSON GRASS OR RUSSIAN THISTLE. (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.
(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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 8, eff. Sept. 1,
1997.
§ 11.090. POLLUTING AND LITTERING. No person may
deposit in any canal, lateral, reservoir, or lake, used for a
purpose named in this chapter, the carcass of any dead animal, tin
cans, discarded buckets or pails, garbage, ashes, bailing or barbed
wire, earth, offal, or refuse of any character or any other article
which might pollute the water or obstruct the flow of a canal or
similar structure.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 9, eff. Sept. 1,
1997.
§ 11.091. INTERFERENCE WITH DELIVERY OF WATER UNDER
CONTRACT. No person may wilfully take, divert, appropriate, or
interfere with the delivery of conserved or stored water under
Section 11.042 of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 10, eff. Sept.
1, 1997.
§ 11.092. WASTEFUL USE OF WATER. A person who owns or
has a possessory right to land contiguous to a canal or irrigation
system and who acquires the right by contract to use the water from
it commits waste if he:
(1) permits the excessive or wasteful use of water by
any of his agents or employees; or
(2) permits the water to be applied to anything but a
beneficial use.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.093. ABATEMENT OF WASTE AS PUBLIC NUISANCE. (a) A
person who permits an unreasonable loss of water through faulty
design or negligent operation of any waterworks using water for a
purpose named in this chapter commits waste, and the commission may
declare the works causing the waste to be a public nuisance. The
commission may take the necessary action to abate the nuisance.
Also, any person who may be injured by the waste may sue in the
district court having jurisdiction over the works causing the waste
to have the operation of the works abated as a public nuisance.
(b) In case of a wasteful use of water defined by Section
11.092 of this code, the commission shall declare the use to be a
public nuisance and shall act to abate the nuisance by directing the
person supplying the water to close the water gates of the person
wasting the water and to keep them closed until the commission
determines that the unlawful use of water is corrected.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.094. PENALTY FOR USE OF WORKS DECLARED PUBLIC
NUISANCE. No person may operate or attempt to operate any
waterworks or irrigation system or use any water under contract
with any waterworks or irrigation system that has been previously
declared to be a public nuisance.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 11, eff. Sept.
1, 1997.
§ 11.096. OBSTRUCTION OF NAVIGABLE STREAMS. No person
may obstruct the navigation of any stream which can be navigated by
steamboats, keelboats, or flatboats by cutting and felling trees or
by building on or across the stream any dike, milldam, bridge, or
other obstruction.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1997, 75th Leg., ch. 1072, § 12, eff. Sept.
1, 1997.
§ 11.097. REMOVAL OF OBSTRUCTIONS FROM NAVIGABLE
STREAMS. (a) On its own motion or on written request from a
commissioners court, the commission shall investigate a reported
natural obstruction in a navigable stream caused by the
accumulation of limbs, logs, leaves, other tree parts, or other
debris. If making the investigation on request of a commissioners
court, the commission must make its investigation not later than
the 30th day after the date on which it receives the written request
from the commissioners court.
(b) On completion of the investigation, if the commission
determines that the obstruction is creating a hazard or is having
other detrimental effect on the navigable stream, the commission
shall initiate action to remove the obstruction.
(c) In removing an obstruction, the commission may solicit
the assistance of federal and state agencies including the Corps of
Engineers, Texas National Guard, the Parks and Wildlife Department,
and districts and authorities created under Article III, Sections
52(b)(1) and (2), or Article XVI, Section 59, of the Texas
Constitution. Also, the commission may enter into contracts for
services required to remove an obstruction. However, no river
authority may require the removal, relocation, or reconfiguration
of a floating structure which was in place before the effective date
of this Act and the effective date of any ordinance, rule,
resolution, or other act of the river authority mandating such
action unless the commission determines the structure is an
obstruction to navigation.
Added by Acts 1987, 70th Leg., ch. 295, § 1, eff. Sept. 1, 1987.
SUBCHAPTER D. PERMITS TO USE STATE WATER
§ 11.121. PERMIT REQUIRED. Except as provided in
Sections 11.142, 11.1421, and 11.1422 of this code, no person may
appropriate any state water or begin construction of any work
designed for the storage, taking, or diversion of water without
first obtaining a permit from the commission to make the
appropriation.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1987, 70th Leg., ch. 544, § 1, eff. Aug. 31,
1987; Acts 1995, 74th Leg., ch. 183, § 1, eff. May 23, 1995.
§ 11.122. AMENDMENTS TO WATER RIGHTS
REQUIRED. (a) All holders of permits, certified filings, and
certificates of adjudication issued under Section 11.323 of this
code shall obtain from the commission authority to change the place
of use, purpose of use, point of diversion, rate of diversion,
acreage to be irrigated, or otherwise alter a water right. Without
obtaining an amendment, the holder of a permit, certified filing,
or certificate of adjudication that includes industrial or
irrigation use may use or supply water for an agricultural use that
was classified as industrial or irrigation before September 1,
2001.
(b) Subject to meeting all other applicable requirements of
this chapter for the approval of an application, an amendment,
except an amendment to a water right that increases the amount of
water authorized to be diverted or the authorized rate of
diversion, shall be authorized if the requested change will not
cause adverse impact on other water right holders or the
environment on the stream of greater magnitude than under
circumstances in which the permit, certified filing, or certificate
of adjudication that is sought to be amended was fully exercised
according to its terms and conditions as they existed before the
requested amendment.
(c) The commission shall adopt rules to effectuate the
provisions of this section.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.008, eff.
Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1010, § 1.03, eff.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, § 2.07, eff. Sept.
1, 2001.
§ 11.123. PERMIT PREFERENCES. The commission shall
give preference to applications in the order declared in Section
11.024 of this code and to applications which will effectuate the
maximum utilization of water and are calculated to prevent the
escape of water without contribution to a beneficial public
service.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.124. APPLICATION FOR PERMIT. (a) An application
to appropriate unappropriated state water must:
(1) be in writing and sworn to;
(2) contain the name and post-office address of the
applicant;
(3) identify the source of water supply;
(4) state the nature and purposes of the proposed use
or uses and the amount of water to be used for each purpose;
(5) state the location and describe the proposed
facilities;
(6) state the time within which the proposed
construction is to begin;
(7) state the time required for the application of
water to the proposed use or uses; and
(8) contain the name and address of the holder of any
lien on:
(A) any water right permit, certified filing, or
certificate of adjudication to be granted under the permit for
which application is made; or
(B) any land to which that water right permit,
certified filing, or certificate of adjudication would be
appurtenant.
(b) If the proposed use is irrigation, the application must
also contain:
(1) a description of the land proposed to be
irrigated; and
(2) an estimate of the total acreage to be irrigated.
(c) If the application is for a seasonal permit, under the
provisions of Section 11.137 of this code, the application must
also state the months or seasons of the year the water is to be used.
(d) If the application is for a temporary permit under the
provisions of Section 11.138 of this code, the application must
also state the period of the proposed temporary use.
(e) If the application is for a term permit, the application
form used must also state that on expiration of a term permit the
applicant does not have an automatic right to renew the permit.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1987, 70th Leg., ch. 405, § 3, eff. Sept. 1,
1987; Acts 1997, 75th Leg., ch. 1010, § 2.09, eff. June 19,
1997.
§ 11.125. MAP OR PLAT. (a) The application must be
accompanied by a map or plat drawn on tracing linen on a scale not
less than one inch equals 2,000 feet.
(b) The map or plat must show substantially:
(1) the location and extent of the proposed
facilities;
(2) the location of the headgate, intake, pumping
plant, or point of diversion by course and distance from permanent
natural objects or landmarks;
(3) the location of the main ditch or canal and the
locations of the laterals or branches of the main ditch or canal;
(4) the course of the water supply;
(5) the position, waterline, and area of all lakes,
reservoirs, or basins intended to be used or created;
(6) the point of intersection of the proposed
facilities with any other ditch, canal, lateral, lake, or
reservoir; and
(7) the location of any ditch, canal, lateral,
reservoir, lake, dam, or other similar facility already existing in
the area, drawn in a different colored ink than that used to
represent the proposed facilities, and the name of the owner of the
existing facility.
(c) The map or plat must also contain:
(1) the name of the proposed facility or enterprise;
(2) the name of the applicant; and
(3) a certificate of the surveyor, giving the date of
his survey, his name and post-office address, and the date of the
application which the certificate accompanies.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.126. COMMISSION REQUIREMENTS. (a) If the
proposed taking or diversion of water for irrigation exceeds nine
cubic feet per second, the executive director may require
additional information as prescribed by this section.
(b) The executive director may require a continuous
longitudinal profile, cross sections of the proposed channel, and
the detail plans of any proposed structure, on any scales and with
any definition the executive director considers necessary or
expedient.
(c) If the application proposes construction of a dam
greater than six feet in height either for diversion or storage, the
executive director may also require filing a copy of all plans and
specifications and a copy of the engineer's field notes of any
survey of the lake or reservoir. No work on the project shall
proceed until approval of the plans is obtained from the executive
director.
(d) If the applicant is a corporation, the commission may
require filing a certified copy of its articles of incorporation, a
statement of the names and addresses of its directors and officers,
and a statement of the amount of its authorized capital stock and
its paid-up capital stock.
(e) If the applicant is not a corporation, the commission
may require filing a sworn statement showing the name and address of
each person interested in the appropriation, the extent of his
interest, and his financial condition.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3155, ch. 828, § 2, eff.
June 17, 1981; Acts 1985, 69th Leg., ch. 795, § 1.009, eff.
Sept. 1, 1985.
§ 11.127. ADDITIONAL REQUIREMENTS: DRAINAGE PLANS. If
the commission believes that the efficient operation of any
existing or proposed irrigation system may be adversely affected by
lack of adequate drainage facilities incident to the work proposed
to be done by an applicant, the commission may require the applicant
to submit to the executive director for approval plans for drainage
adequate to guard against any injury which the proposed work may
entail.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 961, ch. 367, § 1, eff.
June 10, 1981.
§ 11.1271. ADDITIONAL REQUIREMENTS: WATER CONSERVATION
PLANS. (a) The commission shall require from an applicant for a
new or amended water right the formulation and submission of a water
conservation plan and the adoption of reasonable water conservation
measures, as defined by Subdivision (8)(B), Section 11.002, of this
code.
(b) The commission shall require the holder of an existing
permit, certified filing, or certificate of adjudication for the
appropriation of surface water in the amount of 1,000 acre-feet a
year or more for municipal, industrial, and other uses, and 10,000
acre-feet a year or more for irrigation uses, to develop, submit,
and implement a water conservation plan, consistent with the
appropriate approved regional water plan, that adopts reasonable
water conservation measures as defined by Subdivision (8)(B),
Section 11.002, of this code. The requirement for a water
conservation plan under this section shall not result in the need
for an amendment to an existing permit, certified filing, or
certificate of adjudication.
(c) Beginning May 1, 2005, all water conservation plans
required under this section must include specific, quantified
5-year and 10-year targets for water savings. The entity preparing
the plan shall establish the targets. Targets must include goals
for water loss programs and goals for municipal use in gallons per
capita per day.
(d) The commission and the board jointly shall identify
quantified target goals for water conservation that water suppliers
and other entities may use as guidelines in preparing water
conservation plans. Goals established under this subsection are
not enforceable requirements.
(e) The commission and board jointly shall develop model
water conservation programs for different types of water suppliers
that suggest best management practices for achieving the highest
practicable levels of water conservation and efficiency achievable
for each specific type of water supplier.
(f) The commission shall adopt rules establishing criteria
and deadlines for submission of water conservation plans, including
any required amendments, and for submission of implementation
reports.
Added by Acts 1985, 69th Leg., ch. 133, § 1.08. Amended by Acts
1997, 75th Leg., ch. 1010, § 1.03, eff. Sept. 1, 1997; Acts
2003, 78th Leg., ch. 688, § 1, eff. June 20, 2003.
§ 11.1272. ADDITIONAL REQUIREMENT: DROUGHT CONTINGENCY
PLANS FOR CERTAIN APPLICANTS AND WATER RIGHT HOLDERS. (a) The
commission shall by rule require wholesale and retail public water
suppliers and irrigation districts to develop drought contingency
plans consistent with the appropriate approved regional water plan
to be implemented during periods of water shortages and drought.
(b) The wholesale and retail public water suppliers and
irrigation districts shall provide an opportunity for public input
during preparation of their drought contingency plans and before
submission of the plans to the commission.
(c) By May 1, 2005, a drought contingency plan required by
commission rule adopted under this section must include specific,
quantified targets for water use reductions to be achieved during
periods of water shortages and drought. The entity preparing the
plan shall establish the targets.
(d) The commission and the board by joint rule shall
identify quantified target goals for drought contingency plans that
wholesale and retail public water suppliers, irrigation districts,
and other entities may use as guidelines in preparing drought
contingency plans. Goals established under this subsection are not
enforceable requirements.
(e) The commission and the board jointly shall develop model
drought contingency programs for different types of water suppliers
that suggest best management practices for accomplishing the
highest practicable levels of water use reductions achievable
during periods of water shortages and drought for each specific
type of water supplier.
Added by Acts 1997, 75th Leg., ch. 1010, § 1.03, eff. Sept. 1,
1997. Amended by Acts 2003, 78th Leg., ch. 690, § 1, eff. June
20, 2003.
§ 11.128. PAYMENT OF FEE. If the applicant is not
exempted from payment of the filing fee under Section 12.112 of this
code, he shall pay the filing fee prescribed by Section 12.111(b) of
this code at the time he files the application. The commission
shall not record, file, or consider the application until the
executive director certifies to the commission that the fee is
paid.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.129. REVIEW OF APPLICATION; AMENDMENT. The
commission shall determine whether the application, maps, and other
materials comply with the requirements of this chapter and the
rules of the commission. The commission may require amendment of
the application, maps, or other materials to achieve necessary
compliance.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.009, eff.
Sept. 1, 1985.
§ 11.130. RECORDING APPLICATIONS. (a) The executive
director shall have all applications for appropriations recorded in
a well-bound book kept for that purpose in the commission office.
(b) The executive director shall have the applications
indexed alphabetically in the name of:
(1) the applicant;
(2) the stream or source from which the appropriation
is sought to be made; and
(3) the county in which the appropriation is sought to
be made.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.010, eff.
Sept. 1, 1985.
§ 11.131. EXAMINATION AND DENIAL OF APPLICATION WITHOUT
HEARING. (a) The commission shall make a preliminary examination
of the application, and if it appears that there is no
unappropriated water in the source of supply or that the proposed
appropriation should not be allowed for other reasons, the
commission may deny the application.
(b) If the commission denies the application under this
section and the applicant elects not to proceed further, the
commission may order any part of the fee submitted with the
application returned to the applicant.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.1311. APPROVAL OF CERTAIN APPLICATIONS WITHOUT
HEARING. (a) If a permit for a reservoir project which is listed
on the effective date of this section as a recommended project in
the current state water plan has been abandoned, voluntarily
canceled, or forfeited for failure to commence construction within
the time specified by law, and the reservoir project site is owned
by a municipality, river authority, other political subdivision, or
water supply corporation organized under Chapter 67, the commission
may reissue that same permit with a new priority date to the board
without notice or hearing, upon submission of an application by the
board.
(b) The board may transfer interests in a permit issued
under this section to a municipality, river authority, other
political subdivision, or water supply corporation organized under
Chapter 67 as otherwise provided by law.
(c) A permit issued pursuant to this section shall be
administered in accordance with this chapter and as otherwise
provided by law.
Added by Acts 1999, 76th Leg., ch. 1291, § 2.01, eff. Sept. 1,
1999.
§ 11.132. NOTICE. (a) Notice shall be given to the
persons who in the judgment of the commission may be affected by an
application, including those persons listed in Subdivision (2),
Subsection (d), of this section. The commission, on the motion of a
commissioner or on the request of the executive director or any
affected person, shall hold a public hearing on the application.
(b) If the proposed use is for irrigation, the commission
shall include in the notice a general description of the location
and area of the land to be irrigated.
(c) In the notice, the commission shall:
(1) state the name and address of the applicant;
(2) state the date the application was filed;
(3) state the purpose and extent of the proposed
appropriation of water;
(4) identify the source of supply and the place where
the water is to be stored or taken or diverted from the source of
supply;
(5) specify the time and location where the commission
will consider the application; and
(6) give any additional information the commission
considers necessary.
(d) The commission may act on the application without
holding a public hearing if:
(1) not less than 30 days before the date of action on
the application by the commission, the applicant has published the
commission's notice of the application at least once in a newspaper
regularly published or circulated within the section of the state
where the source of water is located;
(2) not less than 30 days before the date of action on
the application by the commission, the commission mails a copy of
the notice by first-class mail, postage prepaid, to:
(A) each claimant or appropriator of water from
the source of water supply, the record of whose claim or
appropriation has been filed with the commission; and
(B) all navigation districts within the river
basin concerned; and
(3) within 30 days after the date of the newspaper
publication of the commission's notice, a public hearing has not
been requested in writing by a commissioner, the executive
director, or an affected person who objects to the application.
(e) The inadvertent failure of the commission to mail a
notice under Subdivision (2), Subsection (d), of this section to a
navigation district that is not a claimant or appropriator of water
does not prevent the commission's consideration of the application.
(f) If, on the date specified in the notice prescribed by
Subsection (c) of this section, the commission determines that a
public hearing must be held, the matter shall be remanded for
hearing without the necessity of issuing further notice other than
advising all parties of the time and place where the hearing is to
convene.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 3.004, eff.
Sept. 1, 1985; Acts 1987, 70th Leg., ch. 977, § 4, eff. June 19,
1987.
§ 11.133. HEARING. At the time and place stated in the
notice, the commission shall hold a hearing on the application. Any
person may appear at the hearing in person or by attorney or may
enter his appearance in writing. Any person who appears may present
objection to the issuance of the permit. The commission may receive
evidence, orally or by affidavit, in support of or in opposition to
the issuance of the permit, and it may hear arguments.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.134. ACTION ON APPLICATION. (a) After the
hearing, the commission shall make a written decision granting or
denying the application. The application may be granted or denied
in whole or in part.
(b) The commission shall grant the application only if:
(1) the application conforms to the requirements
prescribed by this chapter and is accompanied by the prescribed
fee;
(2) unappropriated water is available in the source of
supply;
(3) the proposed appropriation:
(A) is intended for a beneficial use;
(B) does not impair existing water rights or
vested riparian rights;
(C) is not detrimental to the public welfare;
(D) considers the assessments performed under
Sections 11.147(d) and (e) and Sections 11.150, 11.151, and 11.152;
and
(E) addresses a water supply need in a manner
that is consistent with the state water plan and the relevant
approved regional water plan for any area in which the proposed
appropriation is located, unless the commission determines that
conditions warrant waiver of this requirement; and
(4) the applicant has provided evidence that
reasonable diligence will be used to avoid waste and achieve water
conservation as defined by Subdivision (8)(B), Section 11.002.
(c) Beginning January 5, 2002, the commission may not issue
a water right for municipal purposes in a region that does not have
an approved regional water plan in accordance with Section
16.053(i) unless the commission determines that conditions warrant
waiver of this requirement.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, § 1.09; Acts 1997,
75th Leg., ch. 1010, § 4.01, eff. Sept. 1, 1997; Acts 1999, 76th
Leg., ch. 1223, § 1, eff. June 18, 1999; Acts 2001, 77th Leg.,
ch. 966, § 2.08, eff. Sept. 1, 2001.
§ 11.135. ISSUANCE OF PERMIT. (a) On approval of an
application, the commission shall issue a permit to the applicant.
The applicant's right to take and use water is limited to the extent
and purposes stated in the permit.
(b) The permit shall be in writing and attested by the seal
of the commission, and it shall contain substantially the following
information:
(1) the name of the person to whom the permit is
issued;
(2) the date the permit is issued;
(3) the date the original application was filed;
(4) the use or purpose for which the appropriation is
to be made;
(5) the amount or volume of water authorized to be
appropriated for each purpose; if use of the appropriated water is
authorized for multiple purposes, the permit shall contain a
special condition limiting the total amount of water that may
actually be diverted for all of the purposes to the amount of water
appropriated;
(6) a general description of the source of supply from
which the appropriation is proposed to be made;
(7) the time within which construction or work must
begin and the time within which it must be completed; and
(8) any other information the commission prescribes.
(c) If the appropriation is for irrigation, the commission
shall also place in the permit a description and statement of the
approximate area of the land to be irrigated.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.011, eff.
Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1010, § 2.10, eff. June
19, 1997.
§ 11.1351. PERMIT RESTRICTIONS. In granting an
application, the commission may direct that stream flow
restrictions and other conditions and restrictions be placed in the
permit being issued to protect the priority of senior water rights.
Added by Acts 1987, 70th Leg., ch. 404, § 1, eff. Sept. 1, 1987.
§ 11.136. RECORDING OF PERMIT. (a) The commission
shall transmit the permit by registered mail to the county clerk of
the county in which the appropriation is to be made.
(b) When the county clerk receives the permit and is paid
the recording fee (as prescribed by Subchapter B, Chapter 118,
Local Government Code, he shall file and record the permit in a
well-bound book kept for that purpose. He shall index the permit
alphabetically in the name of the applicant and of the stream or
source of water supply. After he has recorded the permit, the
county clerk shall deliver the permit, on demand, to the applicant.
(c) When the permit is filed in the office of the county
clerk, it is constructive notice of:
(1) the filing of the application;
(2) the issuance of the permit; and
(3) all the rights arising under the filing of the
application and the issuance of the permit.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1987, 70th Leg., ch. 149, § 45, eff. Sept. 1,
1987.
§ 11.137. SEASONAL PERMITS. (a) The commission may
issue seasonal permits in the same manner that it issues regular
permits. The provisions of this chapter governing issuance of
regular permits apply to issuance of seasonal permits.
(b) The right to take, use, or divert water under seasonal
permit is limited to the portion or portions of the calendar year
stated in the permit.
(c) In a seasonal permit, the commission shall specify the
conditions necessary to fully protect prior appropriations or
vested rights on the stream.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 11.138. TEMPORARY PERMITS. (a) The commission may
issue temporary permits for beneficial purposes to the extent that
they do not interfere with or adversely affect prior appropriations
or vested rights on the stream from which water is to be diverted
under such temporary permit. The commission may, by appropriate
order, authorize any member of the commission to approve and issue
temporary permits without notice and hearing if it appears to such
issuing party that sufficient water is available at the proposed
point of diversion to satisfy the requirements of the temporary
permit as well as all existing rights. No temporary permit issued
without notice and hearing shall authorize more than 10 acre-feet
of water, nor may it be for a term in excess of one year.
(b) The commission may prescribe rules governing notice and
procedure for the issuance of temporary permits.
