WATER CODE
CHAPTER 12. PROVISIONS GENERALLY APPLICABLE TO WATER RIGHTS
SUBCHAPTER A. GENERAL PROVISIONS
§ 12.001. DEFINITIONS. The definitions contained in
Subchapter A, Chapter 11 of this code apply to this chapter.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
SUBCHAPTER B. GENERAL POWERS AND DUTIES RELATING TO WATER RIGHTS
§ 12.011. PERMIT APPLICATIONS. The commission shall
receive, administer, and act on all applications for permits and
permit amendments:
(1) to appropriate public water for beneficial use or
storage; or
(2) to construct works for the impoundment, storage,
diversion, or transportation of public water.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.031, eff.
Sept. 1, 1985.
§ 12.012. EVALUATION OF OUTSTANDING PERMITS. The
commission shall actively and continually evaluate outstanding
permits and certified filings and shall carry out measures to
cancel wholly or partially the certified filings and permits that
are subject to cancellation.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.031, eff.
Sept. 1, 1985.
§ 12.013. RATE-FIXING POWER. (a) The commission shall
fix reasonable rates for the furnishing of raw or treated water for
any purpose mentioned in Chapter 11 or 12 of this code.
(b) The term "political subdivision" when used in this
section means incorporated cities, towns or villages, counties,
river authorities, water districts, and other special purpose
districts.
(c) The commission in reviewing and fixing reasonable rates
for furnishing water under this section may use any reasonable
basis for fixing rates as may be determined by the commission to be
appropriate under the circumstances of the case being reviewed;
provided, however, the commission may not fix a rate which a
political subdivision may charge for furnishing water which is less
than the amount required to meet the debt service and bond coverage
requirements of that political subdivision's outstanding debt.
(d) The commission's jurisdiction under this section
relating to incorporated cities, towns, or villages shall be
limited to water furnished by such city, town, or village to another
political subdivision on a wholesale basis.
(e) The commission may establish interim rates and compel
continuing service during the pendency of any rate proceeding.
(f) The commission may order a refund or assess additional
charges from the date a petition for rate review is received by the
commission of the difference between the rate actually charged and
the rate fixed by the commission, plus interest at the statutory
rate.
(g) No action or proceeding commenced prior to January 1,
1977, before the Texas Water Rights Commission shall be affected by
the enactment of this section.
(h) Nothing herein contained shall affect the jurisdiction
of the Public Utility Commission.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 12.014. USE OF COMMISSION SURVEYS; POLICY. The
commission shall make use of surveys, studies, and investigations
conducted by the staff of the commission in order to ascertain the
character of the principal requirements of the district regional
division of the watershed areas of the state for beneficial uses of
water, to the end that distribution of the right to take and use
state water may be more equitably administered in the public
interest, that privileges granted for recognized uses may be
economically coordinated so as to achieve the maximum of public
value from the state's water resources, and that the distinct
regional necessities for water control and conservation and for
control of harmful floods may be recognized.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.031, eff.
Sept. 1, 1985.
§ 12.015. POWER TO CONDEMN WORKS. (a) The commission
may condemn existing works if their existence or operation may, in
the judgment of the commission, become a public menace or dangerous
to life and property.
(b) In all cases of proposed condemnation, the commission
shall notify the interested party of the contemplated action and
shall specify a time for him to appear and be heard.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 12.016. POWER TO INSPECT. The executive director or
his authorized agent may inspect any impoundment, diversion, or
distribution works during construction to determine whether or not
they are being constructed in a safe manner and whether or not they
are being constructed according to the order of the commission.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
§ 12.017. POWER TO ENTER LAND. Any member or employee
of the commission may enter any person's land, natural waterway, or
artificial waterway for the purpose of making an investigation that
would, in the judgment of the executive director, assist the
commission in the discharge of its duties.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.031, eff.
Sept. 1, 1985.
SUBCHAPTER C. PROJECTS
§ 12.051. FEDERAL PROJECTS. (a) In this section:
(1) "Federal project" means an engineering
undertaking or work to construct, enlarge, or extend a dam, lake,
reservoir, or other water-storage or flood-control work or a
drainage, reclamation, or canalization undertaking or any
combination of these financed in whole or in part with funds of the
United States.
(2) "Engineering report" means the plans, data,
profiles, maps, estimates, and drawings prepared in connection with
a federal project.
(3) "Federal agency" means the Corps of Engineers of
the United States Army, the Bureau of Reclamation of the Department
of Interior, the Soil Conservation Service of the Department of
Agriculture, the United States Section of the International
Boundary and Water Commission, or any other agency of the United
States, the function of which includes the conservation,
development, retardation by impounding, control, or study of the
water resources of Texas or the United States.
(b) When the governor receives an engineering report
submitted by a federal agency seeking the governor's approval of a
federal project, he shall immediately forward the report to the
board for its study concerning the feasibility of the federal
project.
(c) The board shall hold a public hearing to receive the
views of persons and groups who might be affected by the proposed
federal project. The board shall publish notice of the time, date,
place, nature, and purpose of the public hearing once each week for
two consecutive weeks before the date stated in the notice in a
newspaper having general circulation in the section of the state
where the federal project is to be located or the work done.
(d) After hearing all the evidence both for and against
approval of the federal project, the board shall enter its order
approving or disapproving the feasibility of the federal project,
and the order shall include the board's reasons for approval or
disapproval.
(e) In determining feasibility, the board shall consider,
among other relevant factors:
(1) the effect of the federal project on water users on
the stream as certified by the commission;
(2) the public interest to be served;
(3) the development of damsites to the optimum
potential for water conservation;
(4) the integration of the federal project with other
water conservation activities;
(5) the protection of the state's interests in its
water resources; and
(6) the engineering practicality of the federal
project, including cost of construction, operation, and
maintenance.
(f) The board shall forward to the governor a certified copy
of its order. The board's finding that the federal project is
either feasible or not feasible is final, and the governor shall
notify the federal agency that the federal project has been either
approved or disapproved.
(g) The provisions of this section do not apply to the state
soil conservation board as long as that board is designated by the
governor as the authorized state agency having supervisory
responsibility to approve or disapprove of projects designed to
effectuate watershed-protection and flood-prevention programs
initiated in cooperation with the United States Department of
Agriculture.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.032, eff.
Sept. 1, 1985; Acts 1987, 70th Leg., ch. 20, § 1, eff. Sept. 1,
1987.
§ 12.052. DAM SAFETY. (a) The commission shall make
and enforce rules and orders and shall perform all other acts
necessary to provide for the safe construction, maintenance,
repair, and removal of dams located in this state.
(b) Rules and orders made by the commission shall be made
after proper notice and hearing as provided in the rules of the
commission.
(c) If the owner of a dam that is required to be constructed,
reconstructed, repaired, or removed in order to comply with the
rules and orders promulgated under Subsection (a) of this section
wilfully fails or refuses to comply within the 30-day period
following the date of the commission's final, nonappealable order
to do so or if a person wilfully fails to comply with any rule or
other order issued by the commission under this section within the
30-day period following the effective date of the order, he is
liable to a penalty of not more than $5,000 a day for each day he
continues to violate this section. The state may recover the
penalty by suit brought for that purpose in the district court of
Travis County.
(d) If the commission determines that the existing
condition of the dam is creating or will cause extensive or severe
property damage or economic loss to others or is posing an immediate
and serious threat to human life or health and that other procedures
available to the commission to remedy or prevent the occurrence of
the situation will result in unreasonable delay, the commission may
issue an emergency order, either mandatory or prohibitory in
nature, directing the owner of a dam to repair, modify, maintain,
dewater, or remove the dam which the commission determines is
unsafe. The emergency order may be issued without notice to the dam
owner or with notice the commission considers practicable under the
circumstances. The notice does not have to comply with Chapter
2001, Government Code.
(e) If the commission issues an emergency order under
authority of this section without notice to the dam owner, the
commission shall fix a time and place for a hearing which shall be
held as soon as practicable to affirm, modify, or set aside the
emergency order. The notice does not have to comply with Chapter
2001, Government Code. If the nature of the commission's action
requires further proceedings, those proceedings shall be conducted
as appropriate under the Administrative Procedure and Texas
Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
Statutes).
(f) Nothing in this section or in rules or orders made by the
commission shall be construed to relieve an owner or operator of a
dam or reservoir of the legal duties, obligations, or liabilities
incident to ownership or operation.
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 1985, 69th Leg., ch. 795, § 1.033, eff.
Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, § 5.95(63), eff.
Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1010, § 3.04, eff.
Sept. 1, 1997.
SUBCHAPTER D. WATER DISTRICTS
§ 12.081. CONTINUING RIGHT OF SUPERVISION OF DISTRICTS
AND AUTHORITIES CREATED UNDER ARTICLE III, SECTION 52 AND ARTICLE
XVI, SECTION 59 OF THE TEXAS CONSTITUTION. (a) The powers and
duties of all districts and authorities created under Article III,
Section 52 and Article XVI, Section 59 of the Texas Constitution are
subject to the continuing right of supervision of the State of Texas
by and through the commission or its successor, and this
supervision may include but is not limited to the authority to:
(1) inquire into the competence, fitness, and
reputation of the officers and directors of any district or
authority;
(2) require, on its own motion or on complaint by any
person, audits or other financial information, inspections,
evaluations, and engineering reports;
(3) issue subpoenas for witnesses to carry out its
authority under this subsection;
(4) institute investigations and hearings using
examiners appointed by the commission;
(5) issue rules necessary to supervise the districts
and authorities, except that such rules shall not apply to water
quality ordinances adopted by any river authority which meet or
exceed minimum requirements established by the commission; and
(6) the right of supervision granted herein shall not
apply to matters relating to electric utility operations.
(b) The commission shall prepare and submit to the governor,
lieutenant governor, and speaker of the house a report of any
findings made under this section.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.034, eff.
Sept. 1, 1985; Acts 1989, 71st Leg., ch. 196, § 2, eff. Aug. 28,
1989; Acts 1995, 74th Leg., ch. 76, § 11.283, eff. Sept. 1,
1995.
§ 12.082. DUTY TO INVESTIGATE FRESH WATER SUPPLY
DISTRICT PROJECTS. (a) In this section:
(1) "District" means fresh water supply district.
(2) "Designated agent" means any licensed engineer
selected by the executive director to perform the functions
specified in this section.
(b) The commission shall investigate and report on the
organization and feasibility of all districts created under Chapter
53 of this code which issue bonds under the provisions of that
chapter.
(c) A district that wants to issue bonds for any purpose
shall submit to the commission a written application for
investigation, together with a copy of the engineer's report and a
copy of the data, profiles, maps, plans, and specifications made in
connection with the engineer's report.
(d) The executive director or his designated agent shall
examine the application and other information and shall visit the
project and carefully inspect it. The executive director or his
designated agent may ask for and shall be supplied with additional
data and information requisite to a reasonable and careful
investigation of the project and proposed improvements.
(e) The executive director or his designated agent shall
file with the commission written suggestions for changes and
improvements and shall furnish a copy of the suggestions to the
board of the district. If the commission finally approves or
refuses to approve the project or the issuance of bonds for the
improvements it shall make a full written report, file it in its
office, and furnish a copy of the report to the board of the
district.
(f) During the course of construction of the project and
improvements, no substantial alterations shall be made in the plans
and specifications without the approval of the executive director.
The executive director or his designated agent has full authority
to inspect the improvements at any time during construction to
determine if the project is being constructed in accordance with
approved plans and specifications.
(g) If the executive director finds that the project is not
being constructed in accordance with the approved plans and
specifications, the executive director immediately shall notify in
writing by certified mail each member of the board of the district
and its manager. If, within 10 days after the notice is mailed, the
board of the district does not take steps to insure that the project
is being constructed in accordance with the approved plans and
specifications, the executive director shall give written notice of
that fact to the attorney general.
(h) After the attorney general receives the notice, he may
bring an action for injunctive relief, or he may bring quo warranto
proceedings against the directors. Venue for either of these
actions is exclusively in the district of Travis County.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.035, eff.
Sept. 1, 1985.
§ 12.083. DISTRICTS; CREATION, INVESTIGATIONS AND
BONDS. (a) The commission succeeds to the duties and
responsibilities of the Texas Water Rights Commission with regard
to the creation of districts as defined by Section 50.001(1) of this
code and to approve or disapprove the issuance of the bonds of all
such districts.
(b) The executive director shall investigate and report on
the organization and feasibility of all districts as defined by
Section 50.001(1) of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977.
SUBCHAPTER E. FEES
§ 12.112. FEES: EXEMPTIONS. (a) The commission, the
board, and the Parks and Wildlife Commission are exempted from
payment of any filing, recording, or use fees required by this code.
(b) The board is exempt from payment of any other fees
required by this code or any other statute relating to applications
for water rights or amendments thereto or relating to water
resources administration to the extent the board has not contracted
for the sale of water under a water right on which such fees are
based.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.036, eff.
Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 647, § 4, eff. Aug. 30,
1993.
§ 12.113. DISPOSITION OF FEES, ETC. (a) The
commission shall immediately deposit in the State Treasury the fees
and charges it collects.
(b) The commission shall deposit all costs collected under
Subchapter G, Chapter 11 of this code in the State Treasury to the
credit of the watermaster administration account, from which the
commission shall pay all expenses necessary to efficiently
administer and perform the duties described in Sections 11.325
through 11.335 of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.036, eff.
Sept. 1, 1985; Acts 1997, 75th Leg., ch. 333, § 4, eff. Sept. 1,
1997.
§ 12.114. DISPOSITION OF FEES PENDING
DETERMINATION. The commission shall hold all fees, except filing
fees, which are paid with an application until the commission
finally determines whether the application should be granted. If
the application is not granted, the commission shall return the
fees to the applicant.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, § 1.036, eff.
Sept. 1, 1985.
