CHAPTER 35. GROUNDWATER STUDIES

WATER CODE

TITLE 2. WATER ADMINISTRATION

SUBTITLE E. GROUNDWATER MANAGEMENT

CHAPTER 35. GROUNDWATER STUDIES

Sec. 35.001. PURPOSE. In order to provide for the conservation,

preservation, protection, recharging, and prevention of waste of

the groundwater, and of groundwater reservoirs or their

subdivisions, and to control subsidence caused by withdrawal of

water from those groundwater reservoirs or their subdivisions,

consistent with the objectives of Section 59, Article XVI, Texas

Constitution, groundwater management areas may be created as

provided by this chapter.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995.

Sec. 35.002. DEFINITIONS. In this chapter:

(1) "District" means any district or authority created under

Section 52, Article III, or Section 59, Article XVI, Texas

Constitution, that has the authority to regulate the spacing of

water wells, the production from water wells, or both.

(2) "Commission" means the Texas Natural Resource Conservation

Commission.

(3) "Executive director" means the executive director of the

commission.

(4) "Executive administrator" means the executive administrator

of the Texas Water Development Board.

(5) "Groundwater" means water percolating below the surface of

the earth.

(6) "Groundwater reservoir" means a specific subsurface

water-bearing reservoir having ascertainable boundaries

containing groundwater.

(7) "Subdivision of a groundwater reservoir" means a definable

part of a groundwater reservoir in which the groundwater supply

will not be appreciably affected by withdrawing water from any

other part of the reservoir, as indicated by known geological and

hydrological conditions and relationships and on foreseeable

economic development at the time the subdivision is designated or

altered.

(8) "Subsidence" means the lowering in elevation of the land

surface caused by withdrawal of groundwater.

(9) "Board" means the board of directors of a district.

(10) "Director" means a member of a board.

(11) "Management area" means an area designated and delineated

by the Texas Water Development Board as an area suitable for

management of groundwater resources.

(12) "Priority groundwater management area" means an area

designated and delineated by the commission as an area that is

experiencing or is expected to experience critical groundwater

problems.

(13) "Political subdivision" means a county, municipality, or

other body politic or corporate of the state, including a

district or authority created under Section 52, Article III, or

Section 59, Article XVI, Texas Constitution, a state agency, or a

nonprofit water supply corporation created under Chapter 76, Acts

of the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,

Vernon's Texas Civil Statutes).

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.10, eff.

Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, Sec. 2.21, eff.

Sept. 1, 2001.

Sec. 35.003. SURFACE WATER LAWS NOT APPLICABLE. The laws and

administrative rules relating to the use of surface water do not

apply to groundwater.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995.

Sec. 35.004. DESIGNATION OF GROUNDWATER MANAGEMENT AREAS. (a)

The Texas Water Development Board, with assistance and

cooperation from the commission, shall designate groundwater

management areas covering all major and minor aquifers in the

state. The initial designation of groundwater management areas

shall be completed not later than September 1, 2003. Each

groundwater management area shall be designated with the

objective of providing the most suitable area for the management

of the groundwater resources. To the extent feasible, the

groundwater management area shall coincide with the boundaries of

a groundwater reservoir or a subdivision of a groundwater

reservoir. The Texas Water Development Board also may consider

other factors, including the boundaries of political

subdivisions.

(b) The commission may designate a groundwater management area

after September 1, 2001, for a petition filed and accepted by the

commission according to its rules in effect before September 1,

2001. The commission shall act on the designation in accordance

with this section.

(c) The Texas Water Development Board may alter the boundaries

of designated management areas as required by future conditions

and as justified by factual data. An alteration of boundaries

does not invalidate the previous creation of any district.

(d) The Texas Water Development Board shall designate

groundwater management areas using the procedures applicable to

rulemaking under Chapter 2001, Government Code.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 2001, 77th Leg., ch. 966, Sec. 2.22, eff.

Sept. 1, 2001.

Sec. 35.007. IDENTIFYING, DESIGNATING, AND DELINEATING PRIORITY

GROUNDWATER MANAGEMENT AREAS. (a) The executive director and

the executive administrator shall meet periodically to identify,

based on information gathered by the commission and the Texas

Water Development Board, those areas of the state that are

experiencing or that are expected to experience, within the

immediately following 25-year period, critical groundwater

problems, including shortages of surface water or groundwater,

land subsidence resulting from groundwater withdrawal, and

contamination of groundwater supplies. Not later than September

1, 2005, the commission, with assistance and cooperation from the

Texas Water Development Board, shall complete the initial

designation of priority groundwater management areas across all

major and minor aquifers of the state for all areas that meet the

criteria for that designation. The studies may be prioritized

considering information from the regional planning process,

information from the Texas Water Development Board groundwater

management areas and from groundwater conservation districts, and

any other information available. After the initial designation of

priority groundwater management areas, the commission and the

Texas Water Development Board shall annually review the need for

additional designations as provided by this subsection.

(b) If the executive director concludes that an area of the

state should be considered for designation as a priority

groundwater management area, the executive director shall prepare

a report to the commission.

(c) Before the executive director requests a study from the

executive administrator under Subsection (d), the executive

director shall provide notice to the persons listed in Section

35.009(c) of areas being considered for identification as

experiencing or expected to experience critical groundwater

problems and shall consider any information or studies submitted

under this subsection. Not later than the 45th day after the date

of the notice, a person required to receive notice under this

subsection may submit to the executive director information or

studies that address the potential effects on an area of being

identified as experiencing or expected to experience critical

groundwater problems.

(d) The executive director shall begin preparation of a priority

groundwater management area report by requesting a study from the

executive administrator. The study must:

(1) include an appraisal of the hydrogeology of the area and

matters within the Texas Water Development Board's planning

expertise relevant to the area;

(2) assess the area's immediate, short-term, and long-term water

supply and needs; and

(3) be completed and delivered to the executive director on or

before the 180th day following the date of the request. If the

study is not delivered within this 180-day period, the executive

director may proceed with the preparation of the report.

(e) The executive director shall request a study from the

executive director of the Parks and Wildlife Department for the

purpose of preparing the report required by this section. The

Department of Agriculture may also provide input to the executive

director for purposes of the report. The study must:

(1) evaluate the potential effects of the designation of a

priority groundwater management area on an area's natural

resources; and

(2) be completed and delivered to the executive director on or

before the 180th day following the date of the request. If the

study is not delivered within this 180-day period, the executive

director may proceed with the preparation of the report.

(f) The report shall include:

(1) the recommended delineation of the boundaries of any

proposed priority groundwater management area in the form of an

order to be considered for adoption by the commission;

(2) the reasons and supporting information for or against

designating the area as a priority groundwater management area;

(3) a recommendation regarding whether one or more districts

should be created in the priority groundwater management area,

whether the priority groundwater management area should be added

to an existing district, or whether a combination of those

actions should be taken;

(4) a recommendation as to actions that should be considered to

conserve natural resources;

(5) an evaluation of information or studies submitted to the

executive director under Subsection (c); and

(6) any other information that the executive director considers

helpful to the commission.

(g) The executive director must complete the report and file it

with the commission on or before the 240th day following the date

on which the executive administrator was requested to produce a

study. The executive director shall make the report available for

public inspection by providing a copy of the report to at least

one public library and the county clerk's office in each county

in which the proposed priority groundwater management area is

located and to all districts adjacent to the area of the proposed

priority groundwater management area.

(h) To carry out this section, the executive director may make

necessary studies, hold hearings, solicit and collect

information, and use information already prepared by the

executive director or the executive administrator for other

purposes.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.11, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 456, Sec. 10, eff. June

18, 1999; Acts 1999, 76th Leg., ch. 979, Sec. 12, eff. June 18,

1999; Acts 2001, 77th Leg., ch. 966, Sec. 2.23, eff. Sept. 1,

2001.

Sec. 35.008. PROCEDURES FOR DESIGNATION OF PRIORITY GROUNDWATER

MANAGEMENT AREA; CONSIDERATION OF CREATION OF NEW DISTRICT OR

ADDITION OF LAND IN PRIORITY GROUNDWATER MANAGEMENT AREA TO

EXISTING DISTRICT; COMMISSION ORDER. (a) The commission shall

designate priority groundwater management areas using the

procedures provided by this chapter in lieu of those provided by

Subchapter B, Chapter 2001, Government Code.

(b) The commission shall call an evidentiary hearing to

consider:

(1) the designation of a priority groundwater management area;

and

(2) whether one or more districts should be created over all or

part of a priority groundwater management area, all or part of

the land in the priority groundwater management area should be

added to an existing district, or a combination of those actions

should be taken. Consideration of this issue shall include a

determination of whether a district is feasible and practicable.

(c) Evidentiary hearings shall be held at a location in one of

the counties in which the priority groundwater management area is

located, or proposed to be located, or in the nearest convenient

location if adequate facilities are not available in those

counties.

(d) At the hearing, the commission shall hear testimony and

receive evidence from affected persons. Affected persons shall

include landowners, well owners, and other users of groundwater

in the proposed priority groundwater management area. The

commission shall consider the executive director's report and

supporting information and the testimony and evidence received at

the hearing. If the commission considers further information

necessary, the commission may request such information from any

source.

(e) Any evidentiary hearing shall be concluded not later than

the 75th day after the date notice of the hearing is published.

(f) At the conclusion of the hearing and the commission's

considerations, the commission shall issue an order stating its

findings and conclusions, including whether a priority

groundwater management area should be designated in the area and

recommendations regarding district creation as set forth in

Subsection (g).

(g) The commission's order designating a priority groundwater

management area must recommend that the area be covered by a

district in any of the following ways:

(1) creation of one or more new districts;

(2) addition of the land in the priority groundwater management

area to one or more existing districts; or

(3) a combination of actions under Subdivisions (1) and (2).

(h) In recommending the boundaries of a district or districts

under Subsection (g), the commission shall give preference to

boundaries that are coterminous with those of the priority

groundwater management area, but may recommend district

boundaries along existing political subdivision boundaries at the

discretion of the commission to facilitate district creation and

confirmation.

(i) The designation of a priority groundwater management area

may not be appealed nor may it be challenged under Section 5.351

of this code or Section 2001.038, Government Code.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.12, eff.

Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, Sec. 2.24, eff.

Sept. 1, 2001.

Sec. 35.009. NOTICE AND HEARING. (a) The commission shall have

notice of the hearing published in at least one newspaper with

general circulation in the county or counties in which the area

proposed for designation as a priority groundwater management

area is located. Notice must be published not later than the 30th

day before the date set for the hearing.

(b) The notice must include:

(1) if applicable, a statement of the general purpose and effect

of designating the proposed priority groundwater management area;

(2) if applicable, a statement of the general purpose and effect

of creating a new district in the priority groundwater management

area;

(3) if applicable, a statement of the general purpose and effect

of adding all or part of the land in the priority groundwater

management area to an existing district;

(4) a map generally outlining the boundaries of the area being

considered for priority groundwater management area designation

or notice of the location at which a copy of the map may be

examined or obtained;

(5) a statement that the executive director's report concerning

the priority groundwater management area or proposed area is

available at the commission's main office in Austin, Texas, and

at regional offices of the commission for regions which include

territory within the priority groundwater management area or

proposed priority groundwater management area and that the report

is available for inspection during regular business hours;

(6) a description or the name of the locations in the affected

area at which the commission has provided copies of the executive

director's report to be made available for public inspection;

(7) the name and address of each public library, each county

clerk's office, and each district to which the commission has

provided copies of the executive director's report; and

(8) the date, time, and place of the hearing.

(c) The commission shall also give written notice of the date,

time, place, and purpose of the hearing to the governing body of

each county, regional water planning group, adjacent groundwater

district, municipality, river authority, water district, or other

entity which supplies public drinking water, including each

holder of a certificate of convenience and necessity issued by

the commission, and of each irrigation district, located either

in whole or in part in the priority groundwater management area

or proposed priority groundwater management area. The notice must

be given before the 30th day preceding the date set for the

hearing.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.13, eff.

Sept. 1, 1997; Acts 2001, 77th Leg., ch. 966, Sec. 2.25, eff.

Sept. 1, 2001.

Sec. 35.012. CREATION OF DISTRICT IN PRIORITY GROUNDWATER

MANAGEMENT AREA. (a) Following the issuance of a commission

order under Section 35.008 designating a priority groundwater

management area and recommending the creation of one or more

districts, or the addition of land to an existing district, the

landowners in the priority groundwater management area may:

(1) create one or more districts under Subchapter B, Chapter 36;

(2) have the area annexed to a district that adjoins the area;

or

(3) create one or more districts through the legislative

process.

(b) Within two years, but no sooner than 120 days, from the date

on which the commission issues an order under Section 35.008

designating a priority groundwater management area, for those

areas that are not within a district, the commission shall:

(1) create one or more new districts under Section 36.0151;

(2) recommend that the areas, or a portion of the areas, be

added to an existing district under Section 35.013; or

(3) take any combination of the actions under Subdivisions (1)

and (2).

(c) Following the issuance of a commission order under Section

35.008, the Texas Agricultural Extension Service shall begin an

educational program within such areas with the assistance and

cooperation of the Texas Water Development Board, the commission,

the Department of Agriculture, other state agencies, and existing

districts to inform the residents of the status of the area's

water resources and management options including possible

formation of a district. The county commissioners court of each

county in the priority groundwater management area shall form a

steering committee to provide assistance to the Texas

Agricultural Extension Service in accomplishing the goals of the

education program within the area.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.14, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 456, Sec. 11, eff. June

18, 1999; Acts 1999, 76th Leg., ch. 979, Sec. 13, eff. June 18,

1999; Acts 2001, 77th Leg., ch. 966, Sec. 2.26, eff. Sept. 1,

2001.

Sec. 35.013. ADDING PRIORITY GROUNDWATER MANAGEMENT AREA TO

EXISTING DISTRICT. (a) If the commission in its order under

Section 35.008 recommends that the priority groundwater

management area or a portion of the priority groundwater

management area be added to an existing district, the commission

shall give notice to the board of the existing district

recommended in its order and to any other existing districts

adjacent to the priority groundwater management area.

(b) The commission shall submit a copy of the order to the board

of the district to which it is recommending the priority

groundwater management area be added. The board shall vote on the

addition of the priority groundwater management area to the

district and shall advise the commission of the outcome.

(c) If the board votes to accept the addition of the priority

groundwater management area to the district, the board:

(1) may request the Texas Agricultural Extension Service, the

commission, and the Texas Water Development Board, with the

cooperation and assistance of the Department of Agriculture and

other state agencies, to administer an educational program to

inform the residents of the status of the area's water resources

and management options including possible annexation into a

district;

(2) shall call an election within the priority groundwater

management area, or portion of the priority groundwater

management area, as delineated by the commission to determine if

the priority groundwater management area will be added to the

district; and

(3) shall designate election precincts and polling places for

the elections in the order calling an election under this

subsection.

(d) The board shall give notice of the election and the

proposition to be voted on. The board shall publish notice of the

election at least one time in one or more newspapers with general

circulation within the boundaries of the priority groundwater

management area. The notice must be published before the 30th day

preceding the date set for the election.

(e) The ballots for the election shall be printed to provide for

voting for or against the proposition: "The inclusion of

_________________________ (briefly describe priority groundwater

management area) in the ______________ District." If the district

has outstanding debts or taxes, the proposition shall include the

following language: "and assumption by the described area of a

proportional share of the debts or taxes of the district."

(f) Immediately after the election, the presiding judge of each

polling place shall deliver the returns of the election to the

board, and the board shall canvass the returns for the election

within the priority groundwater management area and declare the

results. If a majority of the voters in the priority groundwater

management area voting on the proposition vote in favor of the

proposition, the board shall declare that the priority

groundwater management area is added to the district. If a

majority of the voters in the priority groundwater management

area voting on the proposition vote against adding the priority

groundwater management area to the district, the board shall

declare that the priority groundwater management area is not

added to the district. The board shall file a copy of the

election results with the commission.

(g) If the voters approve adding the priority groundwater

management area to the district, the board of the district to

which the priority groundwater management area is added shall

provide reasonable representation on that board compatible with

the district's existing scheme of representation. Not later than

the 30th day after the date on which the board declares that the

priority groundwater management area is added to the district,

the board of the existing district shall appoint a person or

persons to represent the area until the next regularly scheduled

election or appointment of directors.

(h) If the proposition is defeated, or if the board of the

existing district votes not to accept the addition of the area to

the district, then the commission shall, except as provided under

Subsection (i), create under Section 36.0151 one or more

districts covering the priority groundwater management area not

later than the first anniversary of the date on which the

proposition is defeated or the board votes not to accept the

area.

(i) For an area that is not feasible for the creation of one or

more districts as determined in the commission's findings under

Section 35.008, the commission shall include in its report under

Section 35.018 recommendations for the future management of the

priority groundwater management area.

(j) Another election to add the priority groundwater management

area to an existing district may not be called before the first

anniversary of the date on which the election on the proposition

was held.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.15, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 456, Sec. 12, eff. June

18, 1999; Acts 1999, 76th Leg., ch. 979, Sec. 14, eff. June 18,

1999; Acts 2001, 77th Leg., ch. 966, Sec. 2.27, eff. Sept. 1,

2001.

Sec. 35.014. COSTS OF ELECTIONS. (a) The costs of an election

to create a district at which a district is authorized to be

created shall be paid by the district.

(b) The costs of an election to add a priority groundwater

management area to an existing district at which the voters

approve adding the priority groundwater management area to the

district shall be paid by the existing district.

(c) The costs of an election to create a district or add a

priority groundwater management area to an existing district at

which the proposition fails shall be paid by the commission.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.16, eff.

Sept. 1, 1997.

Sec. 35.015. STATE ASSISTANCE. A political subdivision located

in an area delineated as a priority groundwater management area,

and in which qualified voters approve the creation of a district

or annexation into an existing district, shall be given

consideration to receive financial assistance from the state

under Chapter 17 for funds to be used in addressing issues

identified in the priority groundwater management area report in

the manner provided by Sections 17.124 and 17.125.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.17, eff.

Sept. 1, 1997.

Sec. 35.017. STATE-OWNED LAND. If state-owned land or a portion

of state-owned land is located in a priority groundwater

management area, the state agency that has management and control

over that land under the constitution or by statute may elect by

written agreement with the commission and the district to include

the state-owned land in the district. The agreement shall be

entered into as provided by the Texas Intergovernmental

Cooperation Act, Chapter 741, Government Code, and may include

provisions for the payment by the state agency of reasonable fees

to the district. If the state does not elect to enter into the

agreement to include the state-owned land in the district, the

state agency must establish a groundwater management plan that

will conserve, protect, and prevent the waste of groundwater on

that state-owned land.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.18, eff.

Sept. 1, 1997.

Sec. 35.018. REPORTS. (a) No later than January 31 of each

odd-numbered year, the commission in conjunction with the Texas

Water Development Board shall prepare and deliver to the

governor, the lieutenant governor, and the speaker of the house

of representatives a comprehensive report concerning activities

during the preceding two years relating to the designation of

priority groundwater management areas by the commission and the

creation and operation of districts.

(b) The report must include:

(1) the names and locations of all priority groundwater

management areas and districts created or attempted to be created

on or after November 5, 1985, the effective date of Chapter 133

(H.B. No. 2), Acts of the 69th Legislature, Regular Session,

1985;

(2) the authority under which each priority groundwater

management area and district was proposed for creation;

(3) a detailed analysis of each election held to confirm the

creation of a district, including analysis of election results,

possible reasons for the success or failure to confirm the

creation of a district, and the possibility for future voter

approval of districts in areas in which attempts to create

districts failed;

(4) a detailed analysis of the activities of each district

created, including those districts which are implementing

management plans certified under Section 36.1072;

(5) a report on audits performed on districts under Section

36.302 and remedial actions taken under Section 36.303;

(6) recommendations for changes in this chapter and Chapter 36

that will facilitate the creation of priority groundwater

management areas and the creation and operation of districts;

(7) a report on educational efforts in newly designated priority

groundwater management areas; and

(8) any other information and recommendations that the

commission considers relevant.

(c) If the commission determines that a district created under

Chapter 36 is not appropriate for, or capable of, the protection

of the groundwater resources for a particular management area or

priority groundwater management area, the commission may

recommend in its report to the legislature the creation of a

special district or amendment of an existing district.

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.19, eff. Sept. 1,

1997. Amended by Acts 2001, 77th Leg., ch. 966, Sec. 2.28, eff.

Sept. 1, 2001.

Sec. 35.019. WATER AVAILABILITY. (a) The commissioners court

of a county in a priority groundwater management area may adopt

water availability requirements in an area where platting is

required if the court determines that the requirements are

necessary to prevent current or projected water use in the county

from exceeding the safe sustainable yield of the county's water

supply.

(b) The commissioners court of a county in a priority

groundwater management area may:

(1) require a person seeking approval of a plat required by

Subchapter A, Chapter 232, Local Government Code, to show:

(A) compliance with the water availability requirements adopted

by the court under this section; and

(B) that an adequate supply of water of sufficient quantity and

quality is available to supply the number of lots proposed for

the platted area;

(2) adopt standards or formulas to determine whether an adequate

water supply exists for the platted area; and

(3) adopt procedures for submitting the information necessary to

determine whether an adequate water supply exists for the platted

area.

(c) The water availability requirements established by a

commissioners court under this section may require that:

(1) a person seeking approval of a plat or attempting to sell a

lot in a subdivision:

(A) notify a purchaser of a lot in the subdivision if an

approved water supply for the subdivision does not exist; or

(B) if the person attempts to build a water supply system to

serve one or more lots within the subdivision:

(i) comply with federal, state, and local law; and

(ii) establish an entity to construct and operate the system; or

(2) a planned or operating water supply system serving one or

more lots within a subdivision be built and operated in

compliance with federal, state, and local laws and rules related

to public drinking water.

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.19, eff. Sept. 1,

1997.

Sec. 35.020. PUBLIC PARTICIPATION IN GROUNDWATER MANAGEMENT

PROCESS. It is the policy of the state to encourage public

participation in the groundwater management process in areas

within a groundwater management area not represented by a

groundwater conservation district.

Added by Acts 2007, 80th Leg., R.S., Ch.

1430, Sec. 2.20, eff. September 1, 2007.