§ 36.122 — TRANSFER OF GROUNDWATER OUT OF DISTRICT.

Texas § 36.122

• Jurisdiction: Texas
• Code WA: Water Code

Text

Sec. 36.122. TRANSFER OF GROUNDWATER OUT OF DISTRICT. (a) If an application for a permit or an amendment to a permit under Section 36.113 proposes the transfer of groundwater outside of a district's boundaries, the district may also consider the provisions of this section in determining whether to grant or deny the permit or permit amendment.
(b) A district may promulgate rules requiring a person to obtain a permit or an amendment to a permit under Section 36.113 from the district for the transfer of groundwater out of the district to:
(1) increase, on or after March 2, 1997, the amount of groundwater to be transferred under a continuing arrangement in effect before that date; or
(2) transfer groundwater out of the district on or after March 2, 1997, under a new arrangement.
(c) Except as provided in Section 36.113 (e), the district may not impose more restrictive permit conditions on transporters than the district imposes on existing in-district users.
(d) The district may impose a reasonable fee for processing an application under this section. The fee may not exceed fees that the district imposes for processing other applications under Section 36.113 . An application filed to comply with this section shall be considered and processed under the same procedures as other applications for permits under Section 36.113 and shall be combined with applications filed to obtain a permit for in-district water use under Section 36.113 from the same applicant.
(e) Except as provided by Subsection (e-1), the district may impose an export fee or surcharge using one of the following methods:
(1) a fee negotiated between the district and the exporter;
(2) for a tax-based district, a rate not to exceed 20 cents for each thousand gallons of water exported from the district; or
(3) for a fee-based district, a rate not to exceed the greater of 20 cents for each thousand gallons or a 50 percent surcharge, in addition to the district's production fee, for water exported from the district.
(e-1) Effective January 1, 2024, the maximum allowable rate a district may impose for an export fee or surcharge under Subsection (e)(2) or (e)(3) increases by three percent each calendar year.
(e-2) A district governed by a special law in regard to an export fee or surcharge on water exported from the district may charge an export fee or surcharge in accordance with that special law or in accordance with Subsections (e) and (e-1).
(e-3) An export fee or surcharge imposed under Subsection (e) or an increase in an imposed export fee or surcharge is not valid unless it is approved by the board after a public hearing.
(f) In reviewing a proposed transfer of groundwater out of the district, the district shall consider:
(1) the availability of water in the district and in the proposed receiving area during the period for which the water supply is requested;
(2) the projected effect of the proposed transfer on aquifer conditions, depletion, subsidence, or effects on existing permit holders or other groundwater users within the district; and
(3) the approved regional water plan and approved district management plan.
(g) The district may not deny a permit based on the fact that the applicant seeks to transfer groundwater outside of the district but may limit a permit issued under this section if conditions in Subsection (f) warrant the limitation, subject to Subsection (c).
(h) In addition to conditions provided by Section 36.1131 , the permit shall specify:
(1) the amount of water that may be transferred out of the district; and
(2) the period for which the water may be transferred.
(i) The period specified by Subsection (h)(2) shall be:
(1) at least three years if construction of a conveyance system has not been initiated prior to the issuance of the permit; or
(2) at least 30 years if construction of a conveyance system has been initiated prior to the issuance of the permit.
(j) A term under Subsection (i)(1) shall automatically be extended to the terms agreed to under Subsection (i)(2) if construction of a conveyance system is begun before the expiration of the initial term.
(j-1) A district shall extend a term under Subsection (i)(2) or (j) on or before its expiration in the manner prescribed by Section 36.1145 :
(1) to a term that is not shorter than the term of an operating permit for the production of water to be transferred that is in effect at the time of the extension; and
(2) for each additional term for which that operating permit for production is renewed under Section 36.1145 or remains in effect under Section 36.1146 .
(j-2) A permit extended under Subsection (j-1) continues to be subject to conditions contained in the permit as issued before the extension.
(k) Notwithstanding the period specified under Subsection (i), (j), or (j-1) during which water may be transferred under a permit, a district may periodically review the amount of water that may be transferred under the permit and may limit the amount if additional factors considered in Subsection (f) warrant the limitation, subject to Subsection (c). The review described by this subsection may take place not more frequently than the period provided for the review or renewal of regular permits issued by the district. In its determination of whether to renew a permit issued under this section, the district shall consider relevant and current data for the conservation of groundwater resources and shall consider the permit in the same manner it would consider any other permit in the district.
(l) A district is prohibited from using revenues obtained under Subsection (e) to prohibit the transfer of groundwater outside of a district. A district is not prohibited from using revenues obtained under Subsection (e) for paying expenses related to enforcement of this chapter or district rules.
(m) A district may not prohibit the export of groundwater if the purchase was in effect on or before June 1, 1997.
(n) This section applies only to a transfer of water that is permitted after September 1, 1997.
(o) A district shall adopt rules as necessary to implement this section but may not adopt rules expressly prohibiting the export of groundwater.
(p) Subsections (e), (e-1), and (e-2) do not apply to a district that is collecting an export fee or surcharge on March 1, 2001.
(q) In applying this section, a district must be fair, impartial, and nondiscriminatory.
(r) The district may grant or deny an application to extend a term under Subsection (i)(2) or (j) submitted under this section only using rules that were in effect at the time the application was submitted.
(s) An application to extend a term under Subsection (i)(2) or (j) is governed solely by district rules consistent with Subsection (j-1).

Legislative History

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.33, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 966, Sec. 2.52, eff. Sept. 1, 2001. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 17 (S.B. 727 ), Sec. 6, eff. April 29, 2011. Acts 2015, 84th Leg., R.S., Ch. 415 (H.B. 2767 ), Sec. 8, eff. June 10, 2015. Acts 2019, 86th Leg., R.S., Ch. 96 (H.B. 1066 ), Sec. 1, eff. September 1, 2019. Acts 2023, 88th Leg., R.S., Ch. 773 (H.B. 3059 ), Sec. 1, eff. September 1, 2023.