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.