Water Code
SUBTITLE B. WATER RIGHTS
CHAPTER 11. WATER RIGHTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 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.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, Sec. 1.01; Acts
1985, 69th Leg., ch. 795, Sec. 1.003, eff. Sept. 1, 1985.
Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.057,
eff. Aug. 12, 1991; Acts 1997, 75th Leg., ch. 1010, Sec. 2.02,
eff. Sept. 1, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.004. Commission to Receive Certified Copies of Judgments, Etc/statutes
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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.003, eff.
Sept. 1, 1985.
Sec. 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. Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
SUBCHAPTER B. RIGHTS IN STATE WATER
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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) 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) irrigation;
(4) mining and recovery of minerals;
(5) hydroelectric power;
(6) navigation;
(7) recreation and pleasure;
(8) stock raising;
(9) public parks; and
(10) 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 2.03, eff. Sept.
1, 1997.
Sec. 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) 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) irrigation;
(4) mining and recovery of minerals;
(5) hydroelectric power;
(6) navigation;
(7) recreation and pleasure; and
(8) other beneficial uses.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1983, 68th Leg., p. 5460, ch. 1026, Sec. 1,
eff. Aug. 29, 1983.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 2.04, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.003, eff.
Sept. 1, 1985.
Amended by Acts 1989, 71st Leg., ch. 427, Secs. 1, 2, eff. Sept.
1, 1989.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.004, eff.
Sept. 1, 1985.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 2.05, eff. Sept.
1, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, Sec. 1.10.
Sec. 11.038. Rights of Owners of Land Adjoining Canal, Etc/statutes
(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 irrigation of the
land and for mining, milling, manufacturing, development of
power, and stock raising, in accordance with the terms of his
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 mining, milling,
manufacturing, development of power, or stock raising, then the
party owning or controlling the water, if he 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.039. Distribution of Water During Shortage.
(a) If a shortage of water in a water supply results from
drouth, 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) Nothing in Subsection (a) of this section 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.005, eff.
Sept. 1, 1985.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.006, eff.
Sept. 1, 1985.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 2.06, eff. Sept.
1, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 939, ch. 353, Sec. 1,
eff. Aug. 31, 1981.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 2.07, eff. Sept.
1, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.050. Tidewater Gates, Etc/statutes
(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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
SUBCHAPTER C. UNLAWFUL USE, DIVERSION, WASTE, ETC.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 3, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,
eff. June 17, 1981.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 3.01, eff. Sept.
1, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 4, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 5, eff. Sept. 1,
1997.
Sec. 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, Sec. 3.02, eff. Sept. 1,
1997.
Sec. 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, Sec. 3.02, eff. Sept. 1,
1997.
Sec. 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, Sec. 3.02, eff. Sept. 1,
1997.
Sec. 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) For the purposes of this section, a basin is designated as
provided in accordance with Section 16.051 of this code. A 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 2.08, eff. Sept.
1, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 60(a)(1),
eff. Sept. 1, 1997.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.007, eff.
Sept. 1, 1985.
Amended by Acts 1997, 75th Leg., ch. 1072, Secs. 6, 60(a)(1),
eff. Sept. 1, 1997.
Sec. 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, Sec. 1, eff. May
13, 1981.
Sec. 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 irrigation, milling,
mining, manufacturing, the development of power, domestic
purposes, 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 7, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 8, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 9, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 10, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 11, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 12, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff. Sept. 1,
1987.
SUBCHAPTER D. PERMITS TO USE STATE WATER
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1987, 70th Leg., ch. 544, Sec. 1, eff. Aug.
31, 1987.
Amended by Acts 1995, 74th Leg., ch. 183, Sec. 1, eff. May 23,
1995.
Sec. 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.
(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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.008, eff.
Sept. 1, 1985.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 1.03, eff. Sept.
1, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1987, 70th Leg., ch. 405, Sec. 3, eff. Sept.
1, 1987.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 2.09, eff. June
19, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3155, ch. 828, Sec. 2,
eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.009,
eff. Sept. 1, 1985.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 961, ch. 367, Sec. 1,
eff. June 10, 1981.
Sec. 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) The commission shall adopt rules establishing criteria and
deadlines for submission of water conservation plans.
Added by Acts 1985, 69th Leg., ch. 133, Sec. 1.08.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 1.03, eff. Sept.
1, 1997.
Sec. 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.
Added by Acts 1997, 75th Leg., ch. 1010, Sec. 1.03, eff. Sept. 1,
1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.009, eff.
Sept. 1, 1985.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.010, eff.
Sept. 1, 1985.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 3.004, eff.
Sept. 1, 1985; Acts 1987, 70th Leg., ch. 977, Sec. 4, eff. June
19, 1987.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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 effects of any hydrological connection
between surface water and groundwater; and
(E) addresses a water supply need in a manner that is
consistent with the state water plan and an 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,
of this code.
(c) Beginning September 1, 2001, 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) of this code unless the commission determines that
conditions warrant waiver of this requirement.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, Sec. 1.09.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.01, eff. Sept.
1, 1997.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.011, eff.
Sept. 1, 1985.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 2.10, eff. June
19, 1997.
Sec. 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, Sec. 1, eff. Sept. 1,
1987.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977; Acts 1987, 70th Leg., ch. 149, Sec. 45, eff. Sept.
1, 1987.
Sec. 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, Sec. 1, eff.
Sept. 1, 1977.
Sec. 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.
(c) As between temporary permits, the one applied for first has
priority.
(d) The commission may not issue a temporary permit for a
period exceeding three calendar years.
(e) A temporary permit does not vest in its holder a permanent
right to the use of water.
(f) A temporary permit expires and shall be cancelled by the
commission in accordance with the terms of the permit.
(g) The commission may prescribe by rule the fees to be paid
for issuance of temporary permits, but no fee for issuance or
extension of a temporary permit shall exceed $500.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 978, ch. 367, Secs. 5,
42, eff. June 10, 1981; Acts 1985, 69th Leg., ch. 795, Sec.
1.012, eff. Sept. 1, 1985.
Sec. 11.1381. Term Permits.
(a) Until a water right is perfected to the full extent
provided by Section 11.026 of this code, the commission may issue
permits for a term of years for use of state water to which a
senior water right has not been perfected.
(b) The commission shall refuse to grant an application for a
permit under this section if the commission finds that there is a
substantial likelihood that the issuance of the permit will
jeopardize financial commitments made for water projects that
have been built or that are being built to optimally develop the
water resources of the area.
(c) The commission shall refuse to grant an application for a
term permit if the holder of the senior appropriative water right
can demonstrate that the issuance of the term permit would
prohibit the senior appropriative water right holder from
beneficially using the senior rights during the term of the term
permit. Such demonstration will be made using reasonable
projections based on accepted methods.
(d) A permit issued under this section is subordinate to any
senior appropriative water rights.
Added by Acts 1987, 70th Leg., ch. 405, Sec. 1, eff. Sept. 1,
1987.
Sec. 11.139. Emergency Authorizations.
(a) Except as provided by Section 11.148 of this code, the
commission may grant an emergency permit, order, or amendment to
an existing permit, certified filing, or certificate of
adjudication after notice to the governor for an initial period
of not more than 120 days if the commission finds that emergency
conditions exist which present an imminent threat to the public
health and safety and which override the necessity to comply with
established statutory procedures and there are no feasible
practicable alternatives to the emergency authorization. Such
emergency action may be renewed once for not longer than 60 days.
(b) A person desiring to obtain an emergency authorization
under this section shall submit to the commission a sworn
application containing the following information:
(1) a description of the condition of emergency justifying
the granting of the emergency authorization;
(2) a statement setting forth facts which support the
findings required under this section;
(3) an estimate of the dates on which the proposed
authorization should begin and end;
(4) a description of the action sought and the activity
proposed to be allowed, mandated, or prohibited; and
(5) any other statements or information required by the
commission.
(c) If the commission finds the applicant's statement made
under Subsection (b) of this section to be correct, the
commission may grant emergency authorizations under this section
without notice and hearing or with such notice and hearing as the
commission considers practicable under the circumstances.
(d) If the commission grants an emergency authorization under
this section without a hearing, the authorization shall fix a
time and place for a hearing to be held before the commission.
The hearing shall be held as soon after the emergency
authorization is granted as is practicable but not later than 20
days after the emergency authorization is granted.
(e) At the hearing, the commission shall affirm, modify, or set
aside the emergency authorization. Any hearing on an emergency
authorization shall be conducted in accordance with Chapter 2001,
Government Code, and rules of the commission.
(f) If an imminent threat to the public health and safety
exists which requires emergency action before the commission can
take action as provided by Subsections (a) through (c) of this
section and there are no feasible alternatives, the executive
director may grant an emergency authorization after notice to the
governor. If the executive director issues an emergency
authorization under this subsection, the commission shall hold a
hearing as provided for in Subsections (d) and (e) of this
section. The requirements of Subsection (b) of this section
shall be satisfied by the applicant before action is taken by the
executive director on the request for emergency authorization.
(g) The requirements of Section 11.132 of this code relating to
the time for notice, newspaper notice, and method of giving a
person notice do not apply to a hearing held on an application
for an emergency authorization under this section, but such
general notice of the hearing shall be given as the commission,
under Subsections (c) and (e) of this section, considers
practicable under the circumstances.
(h) The commission may grant an emergency authorization under
this section for the temporary transfer and use of all or part of
a permit, certified filing, or certificate of adjudication for
other than domestic or municipal use to a retail or wholesale
water supplier for public health and safety purposes. In
addition to the requirements contained in Subsection (b) of this
section, the commission may direct that the applicant will timely
pay the amounts for which the applicant may be potentially liable
under Subsection (j) of this section and to the extent authorized
by law will fully indemnify and hold harmless the state, the
executive director, and the commission from any and all liability
for the authorization sought. The commission may order bond or
other surety in a form acceptable to the commission as a
condition for such emergency authorization. The commission may
not grant an emergency authorization under this section which
would cause a violation of a federal regulation.
(i) In transferring the amount of water requested by the
applicant, the executive director or the commission shall
allocate the requested amount among two or more permits,
certified filings, or certificates of adjudication for other than
domestic or municipal use.
(j) The person granted an emergency authorization under
Subsection (h) of this section is liable to the owner and the
owner's agent or lessee from whom the use is transferred for the
fair market value of the water transferred as well as for any
damages caused by the transfer of use. If, within 60 days of the
termination of the authorization, the parties do not agree on the
amount due, or if full payment is not made, either party may file
a complaint with the commission to determine the amount due. The
commission may use dispute resolution procedures for a complaint
filed under this subsection. After exhausting all administrative
remedies under this subsection, an owner from whom the use is
transferred may file suit to recover or determine the amount due
in a district court in the county where the owner resides or has
its headquarters. The prevailing party in a suit filed under
this subsection is entitled to recover court costs and reasonable
attorney's fees.
(k) The commission may prescribe rules and adopt fees which are
necessary to carry out the provisions of this section.
(l) An emergency authorization does not vest in the grantee any
right to the diversion, impoundment, or use of water and shall
expire and be cancelled in accordance with its terms.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.013, eff.
Sept. 1, 1985.
Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 3.03, eff. June
19, 1997.
Sec. 11.140. Permits for Storage for Project Development.
The commission may issue permits for storage solely for the
purpose of optimum development of projects. The commission may
convert these permits to permits for beneficial use if
application to have them converted is made to the commission.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.141. Date of Priority.
When the commission issues a permit, the priority of the
appropriation of water and the claimant's right to use the water
date from the date of filing of the application.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.142. Permit Exemptions.
(a) Without obtaining a permit, a person may construct on his
own property a dam or reservoir with normal storage of not more
than 200 acre-feet of water for domestic and livestock purposes.
(b) Without obtaining a permit, a person who is drilling and
producing petroleum and conducting operations associated with
drilling and producing petroleum may take for those purposes
state water from the Gulf of Mexico and adjacent bays and arms of
the Gulf of Mexico in an amount not to exceed one acre-foot
during each 24-hour period.
(c) Without obtaining a permit, a person may construct or
maintain a reservoir for the sole purpose of sediment control as
part of a surface coal mining operation under the Texas Surface
Coal Mining and Reclamation Act (Article 5920-11, Vernon's Texas
Civil Statutes).
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 718, Sec. 1, eff. June
14, 1985.
Amended by Acts 1995, 74th Leg., ch. 335, Sec. 1, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1010, Sec. 2.11, eff. Sept. 1,
1997.
Sec. 11.1421. Permit Exemption for Mariculture Activities.
(a) In this section, "mariculture" means the propagation and
rearing of aquatic species, including shrimp, other crustaceans,
finfish, mollusks, and other similar creatures in a controlled
environment using brackish or marine water.
(b) Without obtaining a permit and subject to the requirements
and limitations provided by Subsections (c) through (e) of this
section, a person who is engaged in mariculture operations on
land may take for that purpose state water from the Gulf of
Mexico and adjacent bays and arms of the Gulf of Mexico in an
amount appropriate to those mariculture activities.
(c) Before a person first takes water under Subsection (b) of
this section, the person must give notice to the commission of
the proposed appropriation.
(d) Each appropriation of water made under Subsection (b) of
this section shall be reported to the commission in the manner
provided by the commission's rules.
(e) After notice and hearing, if the commission determines that
as a result of low freshwater inflows appropriation of water
under Subsection (b) of this section would interfere with natural
productivity of bays and estuaries, the commission shall issue an
order requiring interruption or reduction of the appropriation.
Added by Acts 1987, 70th Leg., ch. 544, Sec. 2, eff. Aug. 31,
1987.
Sec. 11.1422. Permit Exemption for Historic Cemeteries.
(a) Without obtaining a permit, a tax-exempt nonprofit
corporation that owns a cemetery may divert from a river not more
than 200 acre-feet of water each year to irrigate the grounds of
the cemetery if the cemetery:
(1) borders the river; and
(2) is more than 100 years old.
(b) The executive director or a watermaster who has
jurisdiction over the river from which a cemetery diverts water
under this section by order may restrict a diversion authorized
by this section if the executive director or watermaster
determines the diversion will harm a person downstream of the
cemetery who acquired a water right before the date this section
took effect. The executive director or watermaster shall limit
the restriction to the extent of the harm and to the period of
the harm.
Added by Acts 1995, 74th Leg., ch. 183, Sec. 2, eff. May 23,
1995.
Sec. 11.143. Domestic and Livestock Reservoir--Use for Other Purposes.
(a) The owner of a dam or reservoir exempted under Section
11.142 of this code who desires to use water from the dam or
reservoir for purposes other than domestic or livestock use shall
obtain a permit to do so. He may obtain a regular permit, a
seasonal permit, or a permit for a term of years. He may elect
to obtain the permit by proceeding under this section or under
the other provisions of this chapter governing issuance of
permits.
(b) If the applicant elects to proceed under this section, he
shall submit to the commission a sworn application, on a form
furnished by the commission, containing the following
information:
(1) the name and post-office address of the applicant;
(2) the nature and purpose of the use and the amount of
water to be used annually for each purpose;
(3) the major watershed and the tributary (named or unnamed)
on which the dam or reservoir is located;
(4) the county in which the dam or reservoir is located;
(5) the approximate distance and direction from the county
seat of the county to the location of the dam or reservoir;
(6) the survey or the portion of the survey on which the dam
or reservoir is located and, to the best of the applicant's
knowledge and belief, the distance and direction of the
midpoint of the dam or reservoir from a corner of the survey,
which information the executive director may require to be
marked on an aerial photograph or map furnished by the
commission;
(7) the approximate surface area, to the nearest acre, of
the reservoir when it is full and the average depth in feet
when it is full; and
(8) the approximate number of square miles in the drainage
area above the dam or reservoir.
(c) If the permit is sought for irrigation, the application
must also specify:
(1) the total number of irrigable acres in the area;
(2) the number of acres to be irrigated within the area in
any one year; and
(3) the approximate distance and direction of the land to be
irrigated from the midpoint of the dam or reservoir.
(d) Except as otherwise specifically provided by this
subsection, before the commission may approve the application and
issue the permit, it shall give notice and hold a hearing as
prescribed by this section. 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 each person
whose claim or appropriation has been filed with the commission
and whose diversion point is downstream from that described in
the application; and
(3) within 30 days after the date of the newspaper
publication of the commission's notice, a public hearing is not
requested in writing by a commissioner, the executive director,
or an affected person who objects to the application.
(e) In the notice, the commission shall:
(1) state the name and post-office 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 stored; and
(5) specify the time and place of the hearing.
(f) The notice shall be published only once, at least 20 days
before the date stated in the notice for the hearing on the
application, in a newspaper having general circulation in the
county where the dam or reservoir is located. At least 15 days
before the date set for the hearing, the commission shall
transmit a copy of the notice by first-class mail to each person
whose claim or appropriation has been filed with the commission
and whose diversion point is downstream from that described in
the application.
(g) If on the date specified in the notice prescribed by
Subsection (d) 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.
(h) The applicant shall pay the filing fee prescribed by
Section 12.111(b) of this code at the time he files the
application.
(i) The commission shall approve the application and issue the
permit as applied for in whole or part if it determines that:
(1) there is unappropriated water in the source of supply;
(2) the applicant has met the requirements of this section;
(3) the water is to be used for a beneficial purpose;
(4) the proposed use is not detrimental to the public
welfare or to the welfare of the locality; and
(5) the proposed use will not impair existing water rights.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Secs. 1.014, 3.003,
eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 977, Sec. 5, eff.
June 19, 1987.
Sec. 11.144. Approval for Alterations.
All holders of permits and certified filings shall obtain the
approval of the commission before making any alterations,
enlargements, extensions, or other changes to any reservoir, dam,
main canal, or diversion work on which a permit has been granted
or a certified filing recorded. A detailed statement and plans
for alterations or changes shall be filed with the commission and
approved by the executive director before the alterations or
changes are made. This section does not apply to the ordinary
maintenance or emergency repair of the facility.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,
eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.015,
eff. Sept. 1, 1985.
Sec. 11.145. When Construction Must Begin.
(a) If a permit is for appropriation by direct diversion,
construction of the proposed facilities shall begin within the
time fixed by the commission, which shall not exceed two years
after the date the permit is issued. The appropriator shall work
diligently and continuously to the completion of the
construction. The commission may, by entering an order of
record, extend the time for beginning construction. The
commission may establish fees, not to exceed $1,000, for
extending the time to begin construction of the proposed
facilities.
(b) If the permit contemplates construction of a storage
reservoir, construction shall begin within the time fixed by the
commission, not to exceed two years after the date the permit is
issued. The commission, by entering an order of record, may
extend the time for beginning construction. The commission may
fix fees, not to exceed $1,000, for extending the time to begin
construction of reservoirs.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3155, ch. 828, Sec. 3,
eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.015,
eff. Sept. 1, 1985.
Sec. 11.146. Forfeitures and Cancellation of Permit for Inaction.
(a) If a permittee fails to begin construction within the time
specified in Section 11.145 of this code, he forfeits all rights
to the permit, subject to notice and hearing as prescribed by
this section.
(b) After beginning construction if the appropriator fails to
work diligently and continuously to the completion of the work,
the appropriation is subject to cancellation in whole or part,
subject to notice and hearing as prescribed by this section.
(c) If the commission believes that an appropriation or permit
should be declared forfeited under this section or any other
sections of this code, it should give the appropriator or
permittee 30 days notice and provide him with an opportunity to
be heard.
(d) After the hearing, the commission by entering an order of
record may cancel the appropriation in whole or part. The
commission shall immediately transmit a certified copy of the
cancellation order by certified mail to the county clerk of the
county in which the permit is recorded. The county clerk shall
record the cancellation order.
(e) Except as provided by Section 11.1381 of this code, if a
permit has been issued for the use of water, the water is not
subject to a new appropriation until the permit has been
cancelled in whole or part as provided by this section.
(f) Except as provided by Subchapter E of this chapter, none of
the provisions of this code may be construed as intended to
impair, cause, or authorize or may impair, cause, or authorize
the forfeiture of any rights acquired by any declaration of
appropriation or by any permit if the appropriator has begun or
begins the work and development contemplated by his declaration
of appropriation or permit within the time provided by the law
under which the declaration of appropriation was made or the
permit was granted and has prosecuted or continues to prosecute
it with all reasonable diligence toward completion.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1987, 70th Leg., ch. 405, Sec. 2, eff. Sept.
1, 1987.
Sec. 11.147. Effects of Permit on Bays and Estuaries and Instream Uses.
(a) In this section, "beneficial inflows" means a salinity,
nutrient, and sediment loading regime adequate to maintain an
ecologically sound environment in the receiving bay and estuary
system that is necessary for the maintenance of productivity of
economically important and ecologically characteristic sport or
commercial fish and shellfish species and estuarine life upon
which such fish and shellfish are dependent.
(b) In its consideration of an application for a permit to
store, take, or divert water, the commission shall assess the
effects, if any, of the issuance of the permit on the bays and
estuaries of Texas. For permits issued within an area that is
200 river miles of the coast, to commence from the mouth of the
river thence inland, the commission shall include in the permit,
to the extent practicable when considering all public interests,
those conditions considered necessary to maintain beneficial
inflows to any affected bay and estuary system.
(c) For the purposes of making a determination under Subsection
(b) of this section, the commission shall consider among other
factors:
(1) the need for periodic freshwater inflows to supply
nutrients and modify salinity to preserve the sound environment
of the bay or estuary, using any available information,
including studies and plans specified in Section 11.1491 of
this code and other studies considered by the commission to be
reliable; together with existing circumstances, natural or
otherwise, that might prevent the conditions imposed from
producing benefits;
(2) the ecology and productivity of the affected bay and
estuary system;
(3) the expected effects on the public welfare of not
including in the permit some or all of the conditions
considered necessary to maintain the beneficial inflows to the
affected bay or estuary system;
(4) the quantity of water requested and the proposed use of
water by the applicant, as well as the needs of those who would
be served by the applicant;
(5) the expected effects on the public welfare of the
failure to issue all or part of the permit being considered;
and
(6) for purposes of this section, the declarations as to
preferences for competing uses of water as found in Sections
11.024 and 11.033, Water Code, as well as the public policy
statement in Section 1.003, Water Code.
(d) In its consideration of an application to store, take, or
divert water, the commission shall consider the effect, if any,
of the issuance of the permit on existing instream uses and water
quality of the stream or river to which the application applies.
(e) The commission shall also consider the effect, if any, of
the issuance of the permit on fish and wildlife habitats.
(f) On receipt of an application for a permit to store, take,
or divert water, the commission shall send a copy of the permit
application and any subsequent amendments to the Parks and
Wildlife Department. At its option, the Parks and Wildlife
Department may be a party in hearings on applications for permits
to store, take, or divert water. In making a final decision on
any application for a permit, the commission, in addition to
other information, evidence, and testimony presented, shall
consider all information, evidence, and testimony presented by
the Parks and Wildlife Department and the board.
(g) The failure of the Parks and Wildlife Department to appear
as a party does not relieve the commission of the requirements of
this section.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 133, Sec. 4.01; Acts
1987, 70th Leg., ch. 419, Sec. 3, eff. Sept. 1, 1987; Acts 1987,
70th Leg., ch. 977, Sec. 5, eff. June 19, 1987.
Sec. 11.148. Emergency Suspension of Permit Conditions.
(a) Permit conditions relating to beneficial inflows to
affected bays and estuaries and instream uses may be suspended by
the commission if the commission finds that an emergency exists
and cannot practically be resolved in other ways.
(b) Before the commission suspends a permit under Subsection
(a) of this section, it must give written notice to the Parks and
Wildlife Department of the proposed suspension. The commission
shall give the Parks and Wildlife Department an opportunity to
submit comments on the proposed suspension within 72 hours from
such time and the commission shall consider those comments before
issuing its order imposing the suspension.
(c) The commission may suspend the permit without notice to any
other interested party other than the Parks and Wildlife
Department as provided by Subsection (b) of this section.
However, all affected persons shall be notified immediately by
publication, and a hearing to determine whether the suspension
should be continued shall be held within 15 days of the date on
which the order to suspend is issued.
Added by Acts 1985, 69th Leg., ch. 133, Sec. 4.02.
Sec. 11.1491. Evaluation of Bays and Estuaries Data.
(a) The Parks and Wildlife Department and the commission shall
have joint responsibility to review the studies prepared under
Section 16.058 of this code, to determine inflow conditions
necessary for the bays and estuaries, and to provide information
necessary for water resources management. Each agency shall
designate an employee to share equally in the oversight of the
program. Other responsibilities shall be divided between the
Parks and Wildlife Department and the commission to maximize
present in-house capabilities of personnel and to minimize costs
to the state. Each agency shall have reasonable access to all
information produced by the other agency. Publication of reports
completed under this section shall be submitted for comment to
both the commission and the Parks and Wildlife Department.
(b) For purposes of guiding data collection and studies
specified under Subsection (a) of this section, an advisory
council may be established by the executive directors of the
commission and the Parks and Wildlife Department and the
executive administrator of the Water Development Board for each
principal bay and estuary. Each advisory council shall be
composed of representatives of the commission, Parks and Wildlife
Department, the Water Development Board, Texas Department of
Health, General Land Office, one representative of commercial
fishing groups, one representative of recreational fishing and
hunting groups, one representative of conservation groups, and
representatives of conservation and reclamation districts or
river authorities having responsibilities and operations in river
basins or watersheds contributing to the bay or estuary. The
advisory councils may develop recommendations to the executive
directors and to entities and organizations having operational
responsibilities or holding major water rights in the
contributing watersheds regarding alternative water management
methods that may be used in maintaining the sound environment of
the bays and estuaries.
(c) The board may authorize the use of money from the research
and planning fund established by Chapter 15 of this code to
accomplish the purposes of this section. These funds shall be
used by the commission in cooperation with the Parks and Wildlife
Department for interagency contracts with cooperating agencies
and universities, and contracts with private sector
establishments, as necessary, to accomplish the purposes of this
section.
Added by Acts 1985, 69th Leg., ch. 133, Sec. 4.02. Renumbered
from Sec. 11.149 and amended by Acts 1987, 70th Leg., ch. 419,
Sec. 1, eff. Sept. 1, 1987.
Sec. 11.150. Effects of Permits on Water Quality.
In consideration of an application for a permit under this
subchapter, the commission shall assess the effects, if any, of
the issuance of the permit on water quality in this state.
Added by Acts 1985, 69th Leg., ch. 795, Sec. 3.001, eff. Sept. 1,
1985.
Sec. 11.1501. Consideration and Revision of Plans.
In considering an application for a permit to store, take, or
divert surface water, or for an amendment to a permit, certified
filing, or certificate of adjudication, the commission shall
consider the state water plan and any approved regional water
plan for the area or areas in which the water is proposed to be
stored, diverted, or used.
Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.02, eff. Sept. 1,
1997.
Sec. 11.151. Effects of Permits on Groundwater.
In considering an application for a permit to store, take, or
divert surface water, the commission shall consider the effects,
if any, on groundwater or groundwater recharge.
Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.02, eff. Sept. 1,
1997.
Sec. 11.152. Effects of Permits on Fish and Wildlife Habitats .
In its consideration of an application for a permit to store,
take, or divert water in excess of 5,000 acre feet per year, the
commission shall assess the effects, if any, on the issuance of
the permit on fish and wildlife habitats and may require the
applicant to take reasonable actions to mitigate adverse impacts
on such habitat. In determining whether to require an applicant
to mitigate adverse impacts on a habitat, the commission may
consider any net benefit to the habitat produced by the project.
The commission shall offset against any mitigation required by
the U.S. Fish and Wildlife Service pursuant to 33 C.F.R. Sections
320-330 any mitigation authorized by this section.
Added by Acts 1985, 69th Leg., ch. 795, Sec. 3.001, eff. Sept. 1,
1985. Renumbered from Sec. 11.149 by Acts 1987, 70th Leg., ch.
167, Sec. 5.01(a)(56), eff. Sept. 1, 1987.
Sec. 11.153. Projects for Storage of Appropriated Water in Aquifers.
(a) The commission shall investigate the feasibility of storing
appropriated water in various types of aquifers around the state
by encouraging the issuance of temporary or term permits for
demonstration projects for the storage of appropriated water for
subsequent retrieval and beneficial use.
(b) A permit described by Subsection (a) must be for only the
duration of the pilot project to provide the commission and the
board further opportunity to evaluate the storage of appropriated
water in aquifers for subsequent retrieval and beneficial use.
(c) At the conclusion of a pilot project, a permit holder may
file an appropriate application for a permit or permit amendment.
After considering the success of the project and the criteria set
out in Section 11.154, the commission shall determine whether to
issue a permit or permit amendment authorizing the continued
storage of appropriated water in the aquifer.
(d) The commission shall only issue a final order granting a
permit or amendment to a permit authorizing the storage of
appropriated water in aquifers for subsequent beneficial use
where completed pilot projects or historically demonstrated
projects have been shown to be feasible under the criteria
provided in Sections 11.154(c) and (d).
(e) The board shall participate in the study of the pilot
projects authorized by Subsection (a). The pilot projects are
eligible for grants from the water loan assistance fund
established by Section 15.101. The board may authorize use of
money from the research and planning fund established by Section
15.402 to participate in the study of pilot projects.
Added by Acts 1995, 74th Leg., ch. 309, Sec. 2, eff. June 5,
1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.03, eff.
Sept. 1, 1997.
Sec. 11.154. Permits to Store Appropriated Water in Aquifers.
(a) An application filed with the commission to undertake a
project under Section 11.153 must include:
(1) the information required for an application for a permit
or permit amendment to appropriate state water;
(2) all information required for an application for a permit
for a Class V injection well without requiring a separate
hearing or notice; and
(3) a map or plat showing the injection facility and the
aquifer in which the water will be stored.
(b) If the application is for a permit or permit amendment to
store appropriated water in a groundwater reservoir or a
subdivision of a groundwater reservoir, as defined by Chapter 36,
that is under the jurisdiction of a groundwater conservation
district:
(1) the applicant shall:
(A) provide a copy of the application to each
groundwater conservation district that has jurisdiction over
the reservoir or subdivision;
(B) cooperate with each district that has jurisdiction
over the reservoir or subdivision to ensure compliance with
the rules of each district;
(C) cooperate with each district that has jurisdiction
over the reservoir or subdivision to develop rules regarding
the injection, storage, and withdrawal of appropriated water
stored in the aquifer; and
(D) comply with the rules governing the injection,
storage, and withdrawal of appropriated water stored in the
reservoir or subdivision that are adopted by each district
that has jurisdiction over the reservoir or subdivision; and
(2) the commission shall require that any agreement the
applicant reaches with a district that has jurisdiction over
the reservoir or subdivision regarding the terms for the
injection, storage, and withdrawal of appropriated water be
included as a condition of the permit or permit amendment.
(c) On receipt of an application for a permit or an amendment
to an existing permit from an applicant with a completed pilot or
historically demonstrated project, the commission shall evaluate
the success of the project for purposes of issuing a final order
granting a permit or permit amendment authorizing the storage of
appropriated water incident to a beneficial use. The commission
shall consider whether:
(1) the introduction of water into the aquifer will alter
the physical, chemical, or biological quality of native
groundwater to a degree that the introduction would:
(A) render groundwater produced from the aquifer harmful
or detrimental to people, animals, vegetation, or property;
or
(B) require treatment of the groundwater to a greater
extent than the native groundwater requires before being
applied to that beneficial use;
(2) the water stored in the receiving aquifer can be
successfully harvested from the aquifer for beneficial use; and
(3) reasonable diligence will be used to protect the water
stored in the receiving aquifer from unauthorized withdrawals
to the extent necessary to maximize the permit holder's ability
to retrieve and beneficially use the stored water without
experiencing unreasonable loss of appropriated water.
(d) In making its evaluation under Subsection (c), the
commission may consider all relevant facts, including:
(1) the location and depth of the aquifer in which the
stored water is located;
(2) the nature and extent of the surface development and
activity above the stored water;
(3) the permit holder's ability to prevent unauthorized
withdrawals by contract or the exercise of the power of eminent
domain;
(4) the existence of an underground water conservation
district with jurisdiction over the aquifer storing the water
and the district's ability to adopt rules to protect stored
water; and
(5) the existence of any other political subdivision or
state agency authorized to regulate the drilling of wells.
(e) A permit to store appropriated water in a groundwater
reservoir or subdivision, as defined by Chapter 36, shall provide
as a condition to the permit that the permit holder shall:
(1) register the permit holder's injection and recovery
wells with a groundwater conservation district that has
jurisdiction over the reservoir or subdivision, if any; and
(2) each calendar month, provide the district, if any, with
a written report showing for the previous calendar month:
(A) the amount of water injected for storage; and
(B) the amount of water recaptured for use.
Added by Acts 1995, 74th Leg., ch. 309, Sec. 2, eff. June 5,
1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.04, eff.
Sept. 1, 1997.
Sec. 11.155. Aquifer Storage Pilot Project Reports.
(a) On completion of each pilot project, the board and the
commission jointly shall:
(1) prepare a report evaluating the success of the project;
and
(2) provide copies of the report to the governor, lieutenant
governor, and speaker of the house of representatives.
(b) The board shall make other studies, investigations, and
surveys of the aquifers in the state as it considers necessary to
determine the occurrence, quantity, quality, and availability of
other aquifers in which water may be stored and subsequently
retrieved for beneficial use. The board shall undertake the
studies, investigations, and surveys in the following order of
priority:
(1) the aquifers described in Section 11.153(a);
(2) areas designated by the commission as "priority
groundwater management areas" under Section 35.008; and
(3) other areas of the state in a priority to be determined
by the board's ranking of where the greatest need exists.
(c) Not later than January 1 of each odd-numbered year, the
board shall prepare and provide to the legislature a report that
includes at least the following information:
(1) the progress of the pilot projects authorized under this
subchapter and of any related project;
(2) the results of the board's studies of the other aquifers
of the state during the preceding biennium; and
(3) the anticipated appropriation from general revenues
necessary to investigate other aquifers in the state during the
upcoming biennium.
Added by Acts 1995, 74th Leg., ch. 309, Sec. 2, eff. June 5,
1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 4.05, eff.
Sept. 1, 1997.
SUBCHAPTER E. CANCELLATION OF PERMITS, CERTIFIED FILINGS, AND
CERTIFICATES OF ADJUDICATION FOR NONUSE
Sec. 11.171. Definitions.
As used in this subchapter:
(1) "Other interested person" means any person other than a
record holder who is interested in the permit or certified filing
or any person whose direct interest would be served by the
cancellation of the permit or certified filing in whole or part.
(2) "Certified filing" means a declaration of appropriation or
affidavit that was filed with the State Board of Water Engineers
under the provisions of Section 14, Chapter 171, General Laws,
Acts of the 33rd Legislature, 1913, as amended.
(3) "Certificate of adjudication" means a certificate issued by
the commission under Section 11.323 of this code.
(4) "Permit" means an authorization by the commission granting a
person the right to use water.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1991, 72nd Leg., ch. 309, Sec. 1, eff. Sept. 1,
1991.
Sec. 11.172. General Principle.
A permit, certified filing, or certificate of adjudication is
subject to cancellation in whole or part for 10 years nonuse as
provided by this subchapter.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.173. Cancellation in Whole or in Part.
(a) Except as provided by Subsection (b) of this section, if
all or part of the water authorized to be appropriated under a
permit, certified filing, or certificate of adjudication has not
been put to beneficial use at any time during the 10-year period
immediately preceding the cancellation proceedings authorized by
this subchapter, then the permit, certified filing, or
certificate of adjudication is subject to cancellation in whole
or in part, as provided by this subchapter, to the extent of the
10 years nonuse.
(b) A permit, certified filing, or certificate of adjudication
or a portion of a permit, certified filing, or certificate of
adjudication is exempt from cancellation under Subsection (a) of
this section:
(1) to the extent of the owner's participation in the
Conservation Reserve Program authorized by the Food Security
Act, Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354,
1509-1514 (1985) or a similar governmental program; or
(2) if any portion of the water authorized to be used
pursuant to a permit, certified filing, or certificate of
adjudication has been used in accordance with a regional water
plan approved pursuant to Section 16.053 of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1986, 69th Leg., 3rd C.S., ch. 33, Sec. 1,
eff. Oct. 15, 1986.
Amended by Acts 1991, 72nd Leg., ch. 309, Sec. 2, eff. Sept. 1,
1991; Acts 1997, 75th Leg., ch. 1010, Sec. 4.06, eff. Sept. 1,
1997.
Sec. 11.174. Commission May Initiate Proceedings.
When the commission finds that its records do not show that
some portion of the water has been used during the past 10 years,
the executive director may initiate proceedings, terminated by
public hearing, to cancel the permit, certified filing, or
certificate of adjudication in whole or in part.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.016, eff.
Sept. 1, 1985.
Amended by Acts 1991, 72nd Leg., ch. 309, Sec. 3, eff. Sept. 1,
1991.
Sec. 11.175. Notice.
(a) At least 45 days before the date of the hearing, the
commission shall send notice of the hearing to the holder of the
permit, certified filing, or certificate of adjudication being
considered for cancellation in whole or in part. Notice shall be
sent by certified mail, return receipt requested, to the last
address shown by the records of the commission. The commission
shall also send notice by regular mail to all other holders of
permits, certified filings, certificates of adjudication, and
claims of unadjudicated water rights filed pursuant to Section
11.303 of this code in the same watershed.
(b) The commission shall also have the notice of the hearing
published once a week for two consecutive weeks, at least 30 days
before the date of the hearing, in a newspaper published in each
county in which diversion of water from the source of supply was
authorized or proposed to be made and in each county in which the
water was authorized or proposed to be used, as shown by the
records of the commission. If in any such county no newspaper is
published, then the notice may be published in a newspaper having
general circulation in the county.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1991, 72nd Leg., ch. 309, Sec. 4, eff. Sept. 1,
1991.
Sec. 11.176. Hearing.
(a) Except as provided by Subsection (b) of this section, the
commission shall hold a hearing and shall give the holder of the
permit, certified filing, or certificate of adjudication and
other interested persons an opportunity to be heard and to
present evidence on any matter pertinent to the questions at
issue.
(b) A hearing on the cancellation of a permit, certified
filing, or certificate of adjudication as provided by this
chapter is unnecessary if the right to such hearing is expressly
waived by the affected holder of a permit, certified filing, or
certificate of adjudication.
(c) A permit, certified filing, or certificate of adjudication
for a term does not vest in the holder of a permit, certified
filing, or certificate of adjudication any right to the
diversion, impoundment, or use of water for longer than the term
of the permit, certified filing, or certificate of adjudication
and shall expire and be cancelled in accordance with its terms
without further need for notice or hearing.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1991, 72nd Leg., ch. 309, Sec. 5, eff. Sept. 1,
1991; Acts 1997, 75th Leg., ch. 1010, Sec. 2.12, eff. Sept. 1,
1997.
Sec. 11.177. Commission Finding; Action.
(a) At the conclusion of the hearing, the commission shall
cancel the permit, certified filing, or certificate of
adjudication in whole or in part to the extent that it finds
that:
(1) the water or any portion of the water appropriated under
the permit, certified filing, or certificate of adjudication
has not been put to an authorized beneficial use during the
10-year period; and
(2) the holder has not used reasonable diligence in applying
the water or the unused portion of the water to an authorized
beneficial use or is otherwise unjustified in the nonuse.
(b) In determining what constitutes reasonable diligence or a
justified nonuse as used in Subsection (a)(2) of this section,
the commission shall give consideration to:
(1) whether sufficient water is available in the source of
supply to meet all or part of the appropriation during the
10-year period of nonuse;
(2) whether the nonuse is justified by the holder's
participation in the federal Conservation Reserve Program or a
similar governmental program as provided by Section
11.173(b)(1) of this code;
(3) whether the permit, certified filing, or certificate of
adjudication was obtained to meet demonstrated long-term public
water supply or electric generation needs as evidenced by a
water management plan developed by the holder and consistent
with projections of future water needs contained in the state
water plan;
(4) whether the permit, certified filing, or certificate of
adjudication was obtained as the result of the construction of
a reservoir funded, in whole or in part, by the holder of the
permit, certified filing, or certificate of adjudication as
part of the holder's long-term water planning;
(5) whether the existing or proposed authorized purpose and
place of use are consistent with an approved regional water
plan as provided by Section 16.053 of this code;
(6) whether the permit, certified filing, or certificate of
adjudication has been deposited into the Texas Water Bank as
provided by Sections 15.7031 and 15.704 of this code or whether
it can be shown that the water right or water available under
the right is currently being made available for purchase
through private marketing efforts; or
(7) whether the permit, certified filing, or certificate of
adjudication has been reserved to provide for instream flows or
bay and estuary inflows.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1991, 72nd Leg., ch. 309, Sec. 6, eff. Sept. 1,
1991; Acts 1997, 75th Leg., ch. 1010, Sec. 2.12, eff. Sept. 1,
1997.
Sec. 11.183. Reservoir.
If the holder of a permit, certified filing, or certificate of
adjudication has facilities for the storage of water in a
reservoir, the commission may allow him to retain the impoundment
to the extent of the conservation storage capacity of the
reservoir for domestic, livestock, or recreation purposes.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.184. Municipal Certified Filing.
Regardless of other provisions of this subchapter, no portion
of a certified filing held by a city, town, village, or municipal
water district, authorizing the use of water for municipal
purposes, shall be cancelled if water has been put to use under
the certified filing for municipal purposes at any time during
the 10-year period immediately preceding the institution of
cancellation proceedings.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.185. Effect of Inaction.
Failure to initiate cancellation proceedings under this
subchapter does not validate or improve the status of any permit,
certified filing, or certificate of adjudication in whole or in
part.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.186. Subsequent Proceedings on Same Water Right.
Once cancellation proceedings have been initiated against a
particular permit, certified filing, or certificate of
adjudication and a hearing has been held, further cancellation
proceedings shall not be initiated against the same permit,
certified filing, or certificate of adjudication within the
five-year period immediately following the date of the hearing.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
SUBCHAPTER F. ARTESIAN WELLS
Sec. 11.201. Artesian Well Defined.
An artesian well is an artificial water well in which the water,
when properly cased, will rise by natural pressure above the
first impervious stratum below the surface of the ground.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.202. Right to Drill Artesian Well.
(a) Except as provided by this section, a person is entitled to
drill an artesian well for domestic purposes or for stock raising
without complying with the general provisions of this code
regulating the use of water.
(b) The artesian well must be on that person's own land and
must be properly and securely cased.
(c) When water is reached containing mineral or other
substances injurious to vegetation or agriculture, the artesian
well must be securely capped or its flow controlled so as not to
injure another person's land or properly plugged so as to prevent
the water from rising above the first impervious stratum below
the surface of the ground.
(d) Except as provided by Subsection (e) of this section, after
September 1, 1991, and before January 1, 1994, a person may not
drill and operate a free-flowing artesian well in a sole or
principal source aquifer as designated by 40 C.F.R., Part 149,
pursuant to Section 1424(e), Safe Drinking Water Act (42 U.S.C.
300h-3(e)) that will result in a flow of more than 5,000 gallons
per minute or that is within 1,000 feet of another well if the
combined flows would exceed 5,000 gallons per minute.
(e) The commission may grant for a well an exemption from the
prohibition provided by Subsection (d) of this section for any
beneficial use that does not waste water. The commission by rule
may delegate the authority to grant exemptions under this
subsection to a local water district.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1991, 72nd Leg., 2nd C.S., ch. 4, Sec. 1, eff.
Aug. 29, 1991.
Sec. 11.203. Artesian Well: Drilling Record.
A person who drills an artesian well or has one drilled shall
keep a complete and accurate record of the depth, thickness, and
character of the different strata penetrated and when the well is
completed shall transmit a copy of the record to the commission
by registered mail.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.017, eff.
Sept. 1, 1985.
Amended by Acts 1997, 75th Leg., ch. 1072, Sec. 13, eff. Sept. 1,
1997.
Sec. 11.204. Report of New Artesian Well.
Within one year after an artesian well is drilled, the owner or
operator shall transmit to the commission a sworn report stating
the result of the drilling operation, the use to which the water
will be applied, and the contemplated extent of the use.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.018, eff.
Sept. 1, 1985.
Sec. 11.205. Wasting Water From Artesian Well.
Unless the water from an artesian well is used for a purpose
and in a manner in which it may be lawfully used on the owner's
land, it is waste and unlawful to wilfully cause or knowingly
permit the water to run off the owner's land or to percolate
through the stratum above which the water is found.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1991, 72nd Leg., 2nd C.S., ch. 4, Sec. 2, eff.
Aug. 29, 1991; Acts 1997, 75th Leg., ch. 1072, Sec. 14, eff.
Sept. 1, 1997.
Sec. 11.206. Improperly Cased Well: Nuisance.
An artesian well that is not tightly cased, capped, and
furnished with mechanical appliances that readily and effectively
prevent water from flowing out of the well and running over the
surface of the ground above the well or wasting through the
strata through which it passes is a public nuisance and subject
to abatement by the executive director.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,
eff. June 17, 1981.
Sec. 11.207. Annual Report.
(a) Not later than March 1 of each year, a person who during
any part of the preceding calendar year owned or operated an
artesian well for any purpose other than domestic use shall file
a report to the commission on a form supplied by the commission.
(b) The report shall state:
(1) the quantity of water which was obtained from the well;
(2) the nature of the uses to which the water was applied;
(3) the change in the level of the well's water table; and
(4) other information required by the commission.
(c) If water from the well was used for irrigation, the report
shall also state the acreage and yield of each crop irrigated.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.019, eff.
Sept. 1, 1985; Acts 1987, 70th Leg., ch. 977, Sec. 6, eff. June
19, 1987.
SUBCHAPTER G. WATER RIGHTS ADJUDICATION ACT
Sec. 11.301. Short Title.
This subchapter may be cited as the Water Rights Adjudication
Act.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.302. Declaration of Policy.
The conservation and best utilization of the water resources of
this state are a public necessity, and it is in the interest of
the people of the state to require recordation with the
commission of claims of water rights which are presently
unrecorded, to limit the exercise of these claims to actual use,
and to provide for the adjudication and administration of water
rights to the end that the surface-water resources of the state
may be put to their greatest beneficial use. Therefore, this
subchapter is in furtherance of the public rights, duties, and
functions mentioned in this section and in response to the
mandate expressed in Article XVI, Section 59 of the Texas
Constitution and is in the exercise of the police powers of the
state in the interest of the public welfare.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 961, ch. 367, Sec. 1,
eff. June 10, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.020,
eff. Sept. 1, 1985.
Sec. 11.303. Recordation and Limitation of Certain Water Rights Claims.
(a) This section applies to:
(1) claims of riparian water rights;
(2) claims under Section 11.143 of this code to impound,
divert, or use state water for other than domestic or livestock
purposes, for which no permit has been issued;
(3) claims of water rights under the Irrigation Acts of 1889
and 1895 which were not filed with the State Board of Water
Engineers in accordance with the Irrigation Act of 1913, as
amended; and
(4) other claims of water rights except claims under permits
or certified filings.
(b) Any claim to which this section applies shall be recognized
only if valid under existing law and only to the extent of the
maximum actual application of water to beneficial use without
waste during any calendar year from 1963 to 1967, inclusive.
However, in any case where a claimant of a riparian right has
prior to August 28, 1967, commenced or completed the construction
of works designed to apply a greater quantity of water to
beneficial use, the right shall be recognized to the extent of
the maximum amount of water actually applied to beneficial use
without waste during any calendar year from 1963 to 1970,
inclusive.
(c) On or before September 1, 1969, every person claiming a
water right to which this section applies shall file with the
commission a statement setting forth:
(1) the name and address of the claimant;
(2) the location and the nature of the right claimed;
(3) the stream or watercourse and the river basin in which
the right is claimed;
(4) the date of commencement of works;
(5) the dates and volumes of use of water; and
(6) other information the commission may require to show the
nature and extent of the claim.
(d) A person who files a statement as provided in this section
shall certify under oath that the statements made in support of
his claim are true and correct to the best of his knowledge and
belief.
(e) A claimant who desires recognition of a right based on use
from 1968 to 1970, inclusive, as provided in Subsection (b) of
this section shall file an additional sworn statement on or
before July 1, 1971.
(f) The commission shall prescribe forms for the sworn
statements required by this section, but use of the commission
forms is not mandatory.
(g) On or before January 1, 1968, and June 1, 1969, the
commission shall cause notice of the requirements of this section
to be published once each week for two consecutive weeks in
newspapers having general circulation in each county of the state
and by first-class mail to each user of surface water who has
filed a report of water use with the commission.
(h) On sworn petition, notice, and hearing as prescribed for
applications for permits and upon finding of extenuating
circumstances and good cause shown for failure to timely file,
the commission may authorize the filing of the sworn statement or
statements required by this section until entry of a preliminary
determination of claims of water rights in accordance with
Section 11.309 of this code which includes the area described in
the petition or, if a preliminary determination has not been
entered, until September 1, 1974.
(i) Since the filing of all claims to use public water is
necessary for the conservation and best utilization of the water
resources of the state, failure to file a sworn statement in
substantial compliance with this section extinguishes and bars
any claim of water rights to which this section applies.
(j) A sworn statement submitted under this section is binding
on the person submitting it and his successors in interest, but
is not binding on the commission or any other person in interest.
(k) Nothing in this section shall be construed to recognize any
water right which did not exist before August 28, 1967.
(l) This section does not apply to use of water for domestic or
livestock purposes.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 978, ch. 367, Sec. 2,
eff. June 10, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.021,
eff. Sept. 1, 1985.
Sec. 11.304. Adjudication of Water Rights.
The water rights in any stream or segment of a stream may be
adjudicated as provided in this subchapter:
(1) on the commission's own motion;
(2) on petition to the commission signed by 10 or more
claimants of water rights from the source of supply; or
(3) on petition of the executive director.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 961, ch. 367, Sec. 1,
eff. June 10, 1981.
Sec. 11.305. Investigation.
(a) Promptly after a petition is filed under Section 11.304 of
this Code, the commission shall consider whether the adjudication
would be in the public interest. If the commission finds that an
adjudication would be in the public interest, it shall enter an
order to that effect, designating the stream or segment to be
adjudicated. The executive director shall have an investigation
made of the area involved in order to gather relevant data and
information essential to the proper understanding of the claims
of water rights involved. The results of the investigation shall
be reduced to writing and made a matter of record in the
commission office.
(b) In connection with the investigation, the executive
director shall have a map or plat made showing with substantial
accuracy the course of the stream or segment and the location of
reservoirs, diversion works, and places of use, including lands
which are being irrigated or have facilities for irrigation.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 978, ch. 367, Sec. 3,
eff. June 10, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.022,
eff. Sept. 1, 1985.
Sec. 11.306. Notice of Adjudication.
(a) The commission shall prepare a notice of adjudication which
describes the stream or segment to be adjudicated and the date by
which all claims of water rights in the stream or segment shall
be filed with the commission. The date shall not be less than 90
days after the date the notice is issued.
(b) The notice shall be published once a week for two
consecutive weeks in one or more newspapers having general
circulation in the counties in which the stream or segment is
located.
(c) The notice shall also be sent by first-class mail to each
claimant of water rights whose diversion is within the stream or
segment to be adjudicated, to the extent that the claimants can
reasonably be ascertained from the records of the commission.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 978, ch. 367, Sec. 4,
eff. June 10, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.023,
eff. Sept. 1, 1985.
Sec. 11.307. Filing of Sworn Claims.
(a) Every person claiming a water right of any nature, except
for domestic or livestock purposes, from the stream or segment
under adjudication shall file a sworn claim with the commission
within the time prescribed in the notice of adjudication,
including any extensions of the prescribed time, setting forth:
(1) the name and post-office address of the claimant;
(2) the location and nature of the right claimed, including
a description of any permit or certified filing under which the
claim is made;
(3) the purpose of the use;
(4) a description of works and irrigated land; and
(5) all other information necessary to show the nature and
extent of the claim.
(b) The commission shall prescribe forms for claims, but use of
the commission forms is not mandatory.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 961, ch. 367, Sec. 1,
eff. June 10, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.024,
eff. Sept. 1, 1985.
Sec. 11.308. Hearings on Claims; Notice.
The commission shall set a time and a place for hearing all
claims. Not less than 30 days before commencement of the
hearings, the commission shall give notice of the hearings by
certified mail to all persons who have filed claims in accordance
with Section 11.307 of this code, or this notice may be included
in the notice of adjudication provided in Section 11.306 of this
code. The hearings shall be conducted as provided in Section
11.337 of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.309. Preliminary Determination of Claims.
(a) On completion of the hearings, the commission shall make a
preliminary determination of the claims to water rights under
adjudication.
(b) One copy of the preliminary determination shall be
furnished without charge to each person who filed a claim in
accordance with Section 11.307 of this code. Additional copies
of the preliminary determination shall be made available for
public inspection at convenient locations throughout the river
basin, as designated by the commission. Copies shall also be
made available to other interested persons at a reasonable price,
based on the cost of reproduction.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.310. Evidence Open to Inspection.
All evidence presented to or considered by the commission shall
be open to public inspection for a period of not less than 60
days, as fixed by the commission, after the notice prescribed in
Section 11.312 of this code is issued.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.311. Date for Filing Contests.
The commission shall set a date for filing contests on the
preliminary determination, which date shall not be less than 30
days after the period for public inspection of the evidence has
closed.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.312. Notice of Preliminary Determination; Copies.
(a) Promptly after the preliminary determination is made as
provided in Section 11.309 of this code, the commission shall
publish notice of the determination once a week for two
consecutive weeks in one or more newspapers having general
circulation in the river basin in which the stream or segment
that is the subject of the adjudication is located.
(b) The commission shall also send notice by first-class mail
to each claimant of water rights within the river basin in which
the stream or segment is located, to the extent that the
claimants can be reasonably ascertained from the records of the
commission.
(c) Each notice shall state:
(1) the place and the period of time that the preliminary
determination and evidence presented to or considered by the
commission will be open for public inspection;
(2) the locations throughout the river basin where copies of
the preliminary determination will be available for public
inspection;
(3) the method of ordering copies of the preliminary
determination and the charge for copies;
(4) the date by which contests on the preliminary
determination must be filed.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.025, eff.
Sept. 1, 1985.
Sec. 11.313. Filing Contests.
(a) Any water right claimant affected by the preliminary
determination, including any claimant to water rights within the
river basin but outside the stream or segment under adjudication,
who disputes the preliminary determination may within the time
for filing contests prescribed by the commission in the notice,
including any extension of the time, file a written contest with
the commission, stating with reasonable certainty the grounds of
his contest.
(b) The statement filed to contest a preliminary determination
must be verified by an affidavit of the contestant, his agent, or
his attorney.
(c) If the contest is directed against the preliminary
determination of the water rights of other claimants, a copy
shall be served on each of these claimants or his attorney by
certified mail, and proof of service shall be filed with the
commission.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.314. Hearing on Contest; Notice.
After the time for filing contests has expired, the commission
shall prepare a notice setting forth the part of the preliminary
determination to which each contest is directed and the time and
place of a hearing on the contest. The notice shall be sent to
each claimant of water rights within the river basin in which the
stream or segment is located, to the extent that the claimants
can be reasonably ascertained from the records of the commission.
The hearing shall be conducted as provided in Section 11.337 of
this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 961, ch. 367, Sec. 1,
eff. June 10, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.026,
eff. Sept. 1, 1985.
Sec. 11.315. Final Determination.
On completion of the hearings on all contests, the commission
shall make a final determination of the claims to water rights
under adjudication. The commission shall send a copy of the
final determination and any modification of the final
determination to each claimant whose rights are adjudicated and
to each contesting party.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.316. Application for Rehearing.
Within 30 days from the date of the final determination, any
affected party may apply to the commission for a rehearing.
Applications for rehearing which in the opinion of the commission
are without merit may be denied without notice to other parties,
but no application for rehearing shall be granted without notice
to each claimant whose rights are adjudicated and to each
contesting party.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.317. Filing Final Determination With District Court.
(a) As soon as practicable after the disposition of all
applications for rehearing, the commission shall file a certified
copy of the final determination, together with all evidence
presented to or considered by the commission, in a district court
of any county in which the stream or segment under adjudication
is located. However, if the stream or segment under adjudication
includes all or parts of three or more counties and if 10 or more
affected persons who appeared in the proceedings petition the
commission to do so, the commission shall file the action in a
convenient district court of a judicial district which is not
within the river basin of the stream or segment under
adjudication.
(b) The commission shall obtain an order from the court fixing
a time not less than 30 days from the date of the order for the
filing of exceptions to the final determination and also fixing a
time not less than 60 days from the date of the order for the
commencement of hearings on exceptions.
(c) The commission shall immediately give written notice of the
court order by certified mail to all parties who appeared in the
proceedings before the commission. The commission shall file
proof of the service with the court.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.318. Exceptions to Final Determination.
(a) Any affected person who appeared in the proceeding before
the commission may file exceptions to the final determination.
An exception must state with a reasonable degree of certainty the
grounds for the exception and must specify the particular
paragraphs and pages of the determination to which the exception
is taken.
(b) Three copies of the exceptions shall be filed in court, and
a copy shall be served on the commission. The commission shall
make copies of all exceptions available at a reasonable price,
based on the cost of reproduction.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.319. Hearings on Exceptions.
(a) The court shall hear any exceptions that have been filed.
The commission and all affected persons who appeared in the
proceedings before the commission are entitled to appear and be
heard on the exceptions. The court may permit other parties in
interest to appear and be heard for good cause shown.
(b) The court may conduct nonjury hearings and proceedings at
any convenient location within the state. Actual expenses
incurred by the court outside its judicial district shall be
taxed as costs.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.320. Scope of Judicial Review.
(a) In passing on exceptions, the court shall determine all
issues of law and fact independently of the commission's
determination. The substantial evidence rule shall not be used.
The court shall not consider any exception which was not brought
to the commission's attention by application for rehearing. The
court shall not consider any issue of fact raised by an exception
unless the record of evidence before the commission reveals that
the question was genuinely in issue before the commission.
(b) A party in interest may demand a jury trial of any issue of
fact, but the court may in its discretion have a separate trial
with a separate jury of any such issue.
(c) The legislature declares that the provisions of this
section are not severable from the remainder of this subchapter
and that this subchapter would not have been passed without the
inclusion of this section. If this section is for any reason
held invalid, unconstitutional, or inoperative in any way, the
holding applies to the entire subchapter so that the entire
subchapter is null and void.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.321. Evidence.
Any exception heard by the court without a jury may be resolved
on the record of evidence before the commission, or the court may
take additional evidence or direct that additional evidence be
heard by the commission.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.322. Final Decree.
(a) After the final hearing, the court shall enter a decree
affirming or modifying the order of the commission.
(b) The court may assess the costs as it deems just.
(c) An appeal may be taken from the decree of the court in the
same manner and with the same effect as in other civil cases.
(d) The final decree in every water right adjudication is final
and conclusive as to all existing and prior rights and claims to
the water rights in the adjudicated stream or segment of a
stream. The decree is binding on all claimants to water rights
outside the adjudicated stream or segment of a stream.
(e) Except for domestic and livestock purposes or rights
subsequently acquired by permit, a water right is not recognized
in the adjudicated stream or segment of a stream unless the right
is included in the final decree of the court.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.323. Certificate of Adjudication.
(a) When a final determination of the rights to the waters of a
stream has been made in accordance with the procedure provided in
this subchapter and the time for a rehearing has expired, the
commission shall issue to each person adjudicated a water right a
certificate of adjudication, signed by the chairman and bearing
the seal of the commission.
(b) In the certificate, the commission shall include:
(1) a reference to the final decree;
(2) the name and post-office address of the holder of the
adjudicated right;
(3) the priority, extent, and purpose of the adjudicated
right and, if the right is for irrigation, a description of the
irrigated land; and
(4) all other information in the decree relating to the
adjudicated right.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.324. Recordation of Certificate.
(a) The commission shall transmit the certificate of
adjudication or a true copy to the county clerk of each county in
which the appropriation is made.
(b) On receipt of the recording fee from the holder of the
certificate, the county clerk shall file and record the
certificate in a well-bound book provided and kept for that
purpose only. The clerk shall index the certificate
alphabetically under the name of the holder of the certificate of
adjudication and under the name of the stream or source of water
supply.
(c) When a certificate of adjudication is filed and recorded as
provided in this section, the county clerk shall deliver the
certificate on demand to the holder.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.325. Water Divisions.
The commission shall divide the state into water divisions for
the purpose of administering adjudicated water rights. Water
divisions may be created from time to time as the necessity
arises. The divisions shall be constituted to secure the best
protection to the holders of water rights and the most economical
supervision on the part of the state.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.027, eff.
Sept. 1, 1985.
Sec. 11.326. Appointment of Watermaster.
(a) The executive director may appoint one watermaster for each
water division.
(b) A watermaster holds office until a successor is appointed.
The executive director may remove a watermaster at any time.
(c) The executive director may employ assistant watermasters
and other employees necessary to aid a watermaster in the
discharge of his duties.
(d) In a water division in which the office of watermaster is
vacant, the executive director has the powers of a watermaster.
(e) The executive director shall supervise and generally direct
the watermaster in the performance of his duties as defined in
Section 11.327. A watermaster is responsible to the executive
director for the proper performance of his duties.
(f) A person dissatisfied with any action of a watermaster may
apply to the executive director for relief.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 696, Sec. 1, eff. Sept. 1,
1997.
Sec. 11.3261. Watermaster Advisory Committee.
(a) The executive director shall establish a watermaster
advisory committee consisting of a minimum of nine members, but
no more than 15 members, who are holders of water rights or
representatives of holders of water rights in the water division
of a watermaster. In appointing members of the advisory
committee the executive director shall consider geographic
representation, amount of water rights held, different types of
holders of water rights and users such as water districts,
municipal suppliers, irrigators, and industrial users, and
experience and knowledge in water management practices.
(b) An advisory committee member is not entitled to
reimbursement of expenses incurred or to compensation.
(c) An advisory committee member shall serve a term of two
years from the date of initial appointment by the executive
director and hold office until a successor is appointed.
(d) The advisory committee shall meet within 30 days following
initial appointment by the executive director and elect a
presiding officer who shall serve on an annual basis. Following
the first meeting, the committee shall meet regularly as
necessary.
(e) The advisory committee's duties include:
(1) providing recommendations to the executive director
regarding activities of benefit to the holders of water rights
in the administration and distribution of water to holders of
water rights;
(2) review and comment to the executive director on the
annual budget of the watermaster operations; and
(3) other duties as may be requested by the executive
director with regard to the watermaster operations or as
requested by holders of water rights in a water division which
the committee deems of benefit to the administration of water
rights in water divisions.
Added by Acts 1997, 75th Leg., ch. 696, Sec. 2, eff. Sept. 1,
1997.
Sec. 11.327. Duties of Watermaster.
(a) A watermaster shall divide the water of the streams or
other sources of supply of his division in accordance with the
adjudicated water rights.
(b) A watermaster shall regulate or cause to be regulated the
controlling works of reservoirs and diversion works in time of
water shortage, as is necessary because of the rights existing in
the streams of his division, or as is necessary to prevent the
waste of water or its diversion, taking, storage, or use in
excess of the quantities to which the holders of water rights are
lawfully entitled.
(c) A watermaster may regulate the distribution of water from
any system of works that serves users whose rights have been
separately determined.
(d) A watermaster's duties shall not include activities which
relate to other programs of the commission, except in situations
of imminent threat to public health and safety or the
environment.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Amended by Acts 1997, 75th Leg., ch. 696, Sec. 3, eff. Sept. 1,
1997.
Sec. 11.328. Watermaster's Notice Posted.
If, in the performance of his duties, a watermaster regulates
diversion works or the controlling works of reservoirs, he shall
attach to the works a written notice, properly dated and signed,
stating that the works have been properly regulated and are
wholly under his control. The notice is legal notice to all
parties interested in the diversion and distribution of the water
served by the diversion works or reservoir.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.329. Compensation and Expenses of Watermaster.
(a) The commission shall pay the compensation and necessary
expenses of a watermaster, assistant watermasters, and other
necessary employees, but the holders of water rights that have
been determined or adjudicated and are to be administered by the
watermaster shall reimburse the commission for the compensation
and expenses. Necessary expenses shall be limited to costs
associated with streamflow measurement and monitoring, water
accounting, assessment billing and collection associated with a
watermaster's operation, and other duties a watermaster may be
required to perform under this subchapter.
(b) After the adjudication decree becomes final, and each
fiscal year thereafter, the executive director shall provide
notice to each holder of water rights under the decree, at least
30 days prior to the commission's holding a public hearing as
provided in Subsection (c), of the proposed budget for their
watermaster operations showing the amount of compensation and
expenses that will be required annually for the administration of
the water rights so determined. This budget shall be furnished
to the watermaster advisory committee for comment at least 30
days prior to notification to each holder of water rights.
(c) The commission shall hold a public hearing on the proposed
fiscal year budget for each watermaster operation. The
commission shall determine the apportionment of the costs of
administration of adjudicated water rights among the holders of
the rights. After a public hearing, the commission shall issue
an order assessing the annual cost against the holders of water
rights to whom the water will be distributed under the final
decree. The commission shall equitably apportion the costs. The
executive director may provide for payments in installments and
shall specify the dates by which payments shall be made to the
commission. At the request of the watermaster advisory committee
the commission may modify a fiscal year budget for any water
division.
Text of subsec. (d) as amended by Acts 1997, 75th Leg., ch. 333,
Sec. 3
(d) The executive director shall deposit all collections under
this section to the credit of the watermaster administration
account.
Text of subsec. (d) as amended by Acts 1997, 75th Leg., ch. 696,
Sec. 4
(d) The executive director shall collect the assessments and
shall account for assessments separately for each water division
and shall deposit assessments collected to a special fund known
as the watermaster fund established and governed by Section
11.3291.
(e) No water shall be diverted, taken, or stored by, or
delivered to, any person while he is delinquent in the payment of
his assessed costs.
(f) An order of the commission assessing costs remains in
effect until the commission issues a further order. The
commission may modify, revoke, or supersede an order assessing
costs with a subsequent order. The commission may issue
supplementary orders from time to time to apply to new
diversions.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.028, eff.
Sept. 1, 1985; Acts 1987, 70th Leg., ch. 118, Sec. 1, eff. Aug.
31, 1987.
Amended by Acts 1997, 75th Leg., ch. 333, Sec. 3, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 696, Sec. 4, eff. Sept. 1, 1997;
Acts 1997, 75th Leg., ch. 1423, Sec. 20.01, eff. Sept. 1, 1997.
Sec. 11.3291. Watermaster Fund.
(a) The watermaster fund is created as a special fund in the
state treasury and shall be administered by the commission under
this subchapter and rules adopted by the commission.
(b) The legislature hereby appropriates without further
legislative action any funds deposited in the watermaster's fund
as provided in this subchapter. The watermaster fund shall be
used: (1) to pay the compensation and expenses of the
watermaster in each water division; (2) to pay expenditures for
equipment, facilities, and capital expenditures necessary to the
watermaster operation when recommended by the watermaster
advisory committee and the executive director and approved by the
commission when hearings are required as provided in Section
11.329; and (3) to pay into the general revenue fund for use
without further appropriation for purposes of providing overhead
and administrative expenses of the commission in an amount not
greater than 10 percent times the approved annual budget under
this subchapter in a water division. Any amounts not used in one
fiscal year shall be carried over and used for the following
fiscal year's operational expenses of the watermaster.
(c) The watermaster fund shall be accounted for separately
according to the appropriate water division from which the
watermaster's assessment is collected.
(d) The watermaster fund shall consist of:
(1) fees collected in each water division;
(2) money from gifts, grants, or donations to the fund for
designated or general lawful use; and
(3) money from any other source designated by the
legislature or the commission.
(e) The commission may invest, reinvest, and direct the
investment of any available money in the fund as provided by law
for the investment of money under Section 404.024, Government
Code.
Added by Acts 1997, 75th Leg., ch. 696, Sec. 5, eff. Sept. 1,
1997.
Sec. 11.330. Outlet for Free Passage of Water.
The owner of any works for the diversion or storage of water
shall maintain a substantial headgate at the point of diversion,
or a gate on each discharge pipe of a pumping plant, constructed
so that it can be locked at the proper place by the watermaster,
or a suitable outlet in a dam to allow the free passage of water
that the owner of the dam is not entitled to divert or impound.
The commission shall adopt rules, and the executive director
shall enforce the rules, governing the type and location of the
headgates or gates and the outlets to allow the free passage of
water.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,
eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.029,
eff. Sept. 1, 1985.
Sec. 11.331. Measuring Devices.
The commission, by rule, may require the owner of any works for
the diversion, taking, storage, or distribution of water to
construct and maintain suitable measuring devices at points that
will enable the watermaster to determine the quantities of water
to be diverted, taken, stored, released, or distributed in order
to satisfy the rights of the respective users.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,
eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.029,
eff. Sept. 1, 1985.
Sec. 11.332. Installation of Flumes.
The commission, by rule, may require flumes to be installed
along the line of any ditch if necessary for the protection of
water rights or other property.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,
eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.029,
eff. Sept. 1, 1985.
Sec. 11.333. Failure to Comply With Commission Rules.
If the owner of waterworks using state water refuses or
neglects to comply with the rules adopted pursuant to Section
11.330, 11.331, or 11.332 of this code, the executive director,
after 10 days notice or after a period of additional time that is
reasonable under the circumstances, may direct the watermaster to
make adjustments of the control works to prevent the owner of the
works from diverting, taking, storing, or distributing any water
until he has fully complied with the rules.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,
eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.029,
eff. Sept. 1, 1985.
Sec. 11.334. Suit Against Commission for Injury.
Any person who is injured by an act of the commission under
this subchapter may bring suit against the commission to review
the action or to obtain an injunction. If the water right
involved has been adjudicated as provided in this subchapter, the
court shall issue an injunction only if it is shown that the
commission has failed to carry into effect the decree
adjudicating the water right.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.029, eff.
Sept. 1, 1985.
Sec. 11.335. Administration of Water Rights Not Adjudicated.
(a) If any area in which water rights of record in the office
of the commission have not been adjudicated, the claimants of the
rights and the commission may enter into a written agreement for
their administration.
(b) An agreement made under authority of this section shall
provide:
(1) the basis and manner of distribution of the water to
which the agreement relates;
(2) the services of a special watermaster, and assistants if
necessary, to carry out the agreement; and
(3) the allocation, collection, and payment of the annual
costs of administration.
(c) An agreement to administer unadjudicated water rights shall
be recorded in the offices of the commission and of the county
clerk of each county in which any of the works or lands affected
by the agreement are located.
(d) The administration of water rights by agreement is governed
by the provisions of this subchapter except as regards allocation
and payment of the expenses of the administration.
(e) No agreement authorized by this section impairs any vested
right to the use of water or creates any additional rights to the
use of water.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.030, eff.
Sept. 1, 1985.
Sec. 11.336. Administration of Permits Issued After Adjudication.
Permits, other than temporary permits, that are issued by the
commission to appropriate water from an adjudicated stream or
segment are subject to administration in the same manner as is
provided in this subchapter for adjudicated water rights.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.337. Hearings: Notice and Procedure.
(a) The commission shall give notice of a hearing or other
proceeding it orders under this subchapter in the manner
prescribed in the procedural rules of the commission, unless this
subchapter specifically provides otherwise.
(b) In any proceeding in any part of the state, the commission
may:
(1) take evidence, including the testimony of witnesses;
(2) administer oaths;
(3) issue subpoenas and compel the attendance of witnesses
in the same manner as subpoenas are issued out of the courts of
the state;
(4) compel witnesses to testify and give evidence; and
(5) order the taking of depositions and issue commissions
for the taking of depositions in the same manner as depositions
are obtained in civil actions.
(c) Evidence may be taken by a duly appointed reporter before
the commission or before an authorized representative who has the
power to administer oaths.
(d) If a person neglects or refuses to comply with an order or
subpoena issued by the commission or refuses to testify on any
matter about which he may be lawfully interrogated, the
commission may apply to a district court of the county in which
the proceeding is held to punish him in the manner provided by
law for such disobedience in civil actions.
(e) The commission may adjourn its proceedings from time to
time and from place to place.
(f) When a proceeding before the commission is concluded, the
commission shall render a decision as to the matters concerning
which the proceeding was held.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.338. Cancellation of Water Rights.
Nothing in this subchapter recognizes any abandoned or
cancelled water right or impairs in any way the power of the
commission under general law to forfeit, cancel, or find
abandoned any water right, including adjudicated water rights.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.339. Underground Water Not Affected.
This subchapter does not apply to underground water as defined
in Chapter 52 of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.340. Abatement of Certain Civil Suits.
(a) Nothing in this subchapter prevents or precludes a person
who claims the right to divert water from a stream from filing
and prosecuting to a conclusion a suit against other claimants of
the right to divert or use water from the same stream. However,
if the commission has ordered a determination of water rights as
provided in this subchapter or if the commission orders such a
determination within 90 days after notice of the filing of a
suit, the suit shall be abated on the motion of the commission or
any party in interest as to any issues involved in the water
rights determination.
(b) If a suit is abated as provided in Subsection (a) of this
section, the court may grant or continue any temporary relief
necessary to preserve the status quo pending a final
determination of the water rights involved.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.341. Limitation on Actions.
This subchapter does not affect any action or proceeding
instituted before August 28, 1967, or any right accrued before
that date except those specifically provided for in this
subchapter.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
SUBCHAPTER H. COURT-APPOINTED WATERMASTER
Sec. 11.401. Scope of Subchapter.
The provisions of this subchapter apply to a suit if:
(1) the state is a party;
(2) the purpose of the suit is to determine the right of the
parties to divert or use water of a surface stream; and
(3) rights are asserted to use water in, or divert water to, not
more than four counties.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.402. Appointment and Authority of Watermaster.
(a) A court having jurisdiction over a suit described in
Section 11.401 of this code may appoint a watermaster with power
to allocate and distribute, under the supervision of the court,
the water taken into judicial custody.
(b) The court may not appoint a watermaster with authority to
act both upstream and downstream from an existing reservoir on
any surface stream of the state. However, once a watermaster is
appointed, the construction of a new reservoir does not
invalidate his appointment or restrict his authority over that
portion of the stream contemplated by the original order of
appointment.
(c) Under terms and conditions prescribed by the court, the
watermaster may incur necessary expenses, appoint necessary
deputies and assistants, and perform duties and assume
responsibilities delegated to him by the court.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.403. Compensation of Watermaster.
The court shall fix the compensation of the watermaster and his
staff.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.404. Expenses and Assessment of Costs of Watermaster.
(a) The trial court shall assess the costs and expenses of the
watermaster and his staff against all persons receiving an
allocation of the water in judicial custody. The court shall
assess the costs and expenses monthly or at other time intervals
ordered by the court.
(b) The court shall assess the costs and expenses on the basis
of:
(1) acreage;
(2) acre-feet of allocated water;
(3) per capita; or
(4) any other formula the court, after notice and hearing,
determines to be the most equitable.
(c) During the pendency of an appeal, the trial court, in its
discretion, may assess costs against some parties on one basis
and against other parties on another basis.
(d) The costs and expenses are not to be taxed as ordinary
court costs, but are to be considered costs necessary to protect
the rights and privileges of the parties receiving allocations of
water during the litigation and are to be paid by those parties.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.405. Failure to Pay Assessed Costs.
If the costs and expenses assessed are not paid within the time
prescribed by the court, the court after notice and hearing may
withdraw or limit allocations of water to any party failing or
refusing to pay his share until all costs and expenses assessed
against him are paid in full.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.406. Judicial Custody of Water During Appeal.
If a party appeals the judgment of the trial court, that court
may retain custody of the water which it has previously taken
into judicial custody and over which it has appointed a
watermaster. Until final judgment is entered in the case, the
trial court has exclusive jurisdiction to administer, allocate,
and distribute the water retained in its custody, as provided in
Section 11.407 of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.407. Allocation and Distribution of Water During Appeal.
During the pendency of an appeal, the trial court shall limit
the allocation and distribution of the water in its custody to
the parties adjudicated to have a valid right to use the water.
However, if any party prosecutes an appeal and files a
supersedeas bond, the trial court shall make any necessary
adjustments in the water allocations and allocate to that party
the same amount of water that he received during the proceedings
in the trial court.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.408. Retention of Watermaster During Appeal.
During the pendency of an appeal, the trial court may retain
the watermaster in office with the same authority he had during
the trial proceedings.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 11.409. Violations of Court Orders.
If a party violates any order of the trial court either during
trial proceedings or during an appeal, the trial court may limit
or withdraw his allocation of water until he corrects the
violation to the satisfaction of the court.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
SUBCHAPTER I. COMMISSION-APPOINTED WATERMASTER
Sec. 11.451. Commission Authority.
On petition of 25 or more holders of water rights in a river
basin or segment of a river basin or on its own motion the
commission may authorize the executive director to appoint a
watermaster for a river basin or segment of a river basin if the
commission finds that the rights of senior water rights holders
in the basin or segment of the basin are threatened.
Added by Acts 1987, 70th Leg., ch. 779, Sec. 1, eff. Sept. 1,
1987.
Sec. 11.452. Procedure for Determination.
(a) On receiving a petition for appointment of a watermaster or
on its own motion, the commission shall call and hold a hearing
to determine if a need exists for appointment of a watermaster
for the river basin or segment of the river basin.
(b) At the hearing persons who hold water rights in the river
basin or segment of the river basin may appear before the
commission and submit testimony and evidence relating to the need
for appointment of a watermaster.
(c) After the hearing, the commission shall make a written
determination as to whether a threat exists to the rights of
senior water rights holders in the river basin or segment of the
river basin and shall issue an order either finding that a threat
exists and directing appointment of a watermaster or denying
appointment of a watermaster.
Added by Acts 1987, 70th Leg., ch. 779, Sec. 1, eff. Sept. 1,
1987.
Sec. 11.453. Appointment of Watermaster.
(a) On issuance of an order under Section 11.452 of this
chapter directing appointment of a watermaster, the executive
director shall appoint a watermaster for the river basin or
segment of the river basin covered by the commission order.
(b) A person appointed as a watermaster under this section may
not be:
(1) the holder of a water right in the river basin or
segment of the river basin to be under his jurisdiction as
watermaster;
(2) a purchaser of water from the holder of a water right in
the river basin or segment of the river basin under his
jurisdiction as watermaster; or
(3) a landowner of any land adjacent to the river or segment
of the river under his jurisdiction as watermaster.
(c) A watermaster holds office until a successor is appointed.
The executive director may remove a watermaster at any time.
(d) The executive director may employ assistant watermasters
and other employees necessary to aid a watermaster in the
discharge of his duties.
(e) In a segment or basin in which the office of watermaster is
vacant, the executive director has the powers of a watermaster.
(f) The executive director shall supervise and generally direct
the watermaster in the performance of his duties. A watermaster
is responsible to the executive director for the proper
performance of his duties.
(g) A person dissatisfied with any action of a watermaster may
apply to the executive director for relief.
Added by Acts 1987, 70th Leg., ch. 779, Sec. 1, eff. Sept. 1,
1987.
Sec. 11.454. Duties and Authority of the Watermaster.
A watermaster as the agent of the commission and under the
executive director's supervision shall:
(1) divide the water of the streams or other sources of
supply of his segment or basin in accordance with the
authorized water rights;
(2) regulate or cause to be regulated the controlling works
of reservoirs and diversion works in time of water shortage, as
is necessary because of the rights existing in the streams of
his segment or basin, or as is necessary to prevent the waste
of water or its diversion, taking, storage, or use in excess of
the quantities to which the holders of water rights are
lawfully entitled; and
(3) perform any other duties and exercise any authority
directed by the commission.
Added by Acts 1987, 70th Leg., ch. 779, Sec. 1, eff. Sept. 1,
1987.
Sec. 11.455. Assessments.
The commission may assess the costs of the watermaster against
all persons who hold water rights in the river basin or segment
of the river basin under the watermaster's jurisdiction in
accordance with Section 11.329 of this code.
Added by Acts 1987, 70th Leg., ch. 779, Sec. 1, eff. Sept. 1,
1987.
Sec. 11.456. Maintaining Current Status.
(a) To protect water rights holders in a river basin or segment
of a river basin during the proceedings under Section 11.452 of
this code, the commission may issue an order or orders at the
beginning of the proceedings under Section 11.452 of this code or
may request the attorney general to seek injunctive relief to
protect the water rights holders during the proceedings.
(b) On request of the commission, the attorney general shall
seek injunctive relief to carry out the purpose of Subsection (a)
of this section.
(c) The commission is not required to comply with the
requirements of Chapter 2001, Government Code in issuing orders
under Subsection (a) of this section and there is no right of
appeal from those orders.
Added by Acts 1987, 70th Leg., ch. 779, Sec. 1, eff. Sept. 1,
1987.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff.
Sept. 1, 1995.
Sec. 11.457. Assistance to Watermaster.
The executive director shall provide the watermaster with such
staff and facilities as are necessary to carry out this
subchapter.
Added by Acts 1987, 70th Leg., ch. 779, Sec. 1, eff. Sept. 1,
1987.
Sec. 11.458. Application of Subchapter.
This subchapter shall not apply to any river basin or segment
of a river basin in which a watermaster has been appointed
pursuant to Subchapter G or H of this chapter.
Added by Acts 1987, 70th Leg., ch. 779, Sec. 1, eff. Sept. 1,
1987.
SUBCHAPTER J. WETLANDS
Sec. 11.501. Title of Act.
This Act shall be known and may be cited as the "Wetlands Act."
Added by Acts 1989, 71st Leg., ch. 1202, Sec. 1, eff. Aug. 28,
1989.
Sec. 11.502. Definition.
(1) The definition of the term "wetlands" within the State
of Texas, for purposes of the Clean Water Act, 33 U.S.C. 1311,
1344; the Erodible Land and Wetland Conservation and Reserve
Program, 16 U.S.C. 3801-3845; the Emergency Wetlands Resources
Act of 1986, 16 U.S.C. 3901-3932; the National Environmental
Policy Act of 1969, 42 U.S.C. 4321-4370a, all statutory
foundation for the Federal Wildlife Service's National Wetlands
Inventory mapping, including the Water Bank Program for
Wetlands Preservation, 16 U.S.C. 1301-1311; the Water Resources
development project (wetland areas), 42 U.S.C. 1962d-5e; and
the Migratory Bird Conservation Act, 16 U.S.C. 715-715r; and
all Texas laws, rules, and regulations adopted pursuant to
Chapter 2001, Government Code and interpretation and
implementation of any kind whatsoever of both federal and state
laws by agencies of the state, including any amendment or
revision thereto, relating to wetlands, means an area
(including a swamp, marsh, bog, prairie pothole, or similar
area) having a predominance of hydric soils that are inundated
or saturated by surface or groundwater at a frequency and
duration sufficient to support and that under normal
circumstances supports the growth and regeneration of
hydrophytic vegetation.
(2) The term "hydric soil" means soil that, in its undrained
condition, is saturated, flooded, or ponded long enough during
a growing season to develop an anaerobic condition that
supports the growth and regeneration of hydrophytic vegetation.
(3) The term "hydrophytic vegetation" means a plant growing
in: water or a substrate that is at least periodically
deficient in oxygen during a growing season as a result of
excessive water content.
(4) The term "wetlands" does not include:
(A) irrigated acreage used as farmland;
(B) man-made wetlands of less than one acre; or
(C) man-made wetlands not constructed with wetland
creation as a stated objective, including but not limited to
impoundments made for the purpose of soil and water
conservation which have been approved or requested by soil
and water conservation districts.
Added by Acts 1989, 71st Leg., ch. 1202, Sec. 1, eff. Aug. 28,
1989. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
eff. Sept. 1, 1995.
Sec. 11.503. Applicability to Man-Made Wetlands.
Section 11.502(4)(C) applies only to man-made wetlands, the
construction or creation of which commences on or after the
effective date of this Act.
Added by Acts 1989, 71st Leg., ch. 1202, Sec. 1, eff. Aug. 28,
1989.
Sec. 11.504. Applicability to Surface Mining and Reclamation .
This Act shall not apply to surface mining and reclamation.
Added by Acts 1989, 71st Leg., ch. 1202, Sec. 1, eff. Aug. 28,
1989.
Sec. 11.505. Applicability to State Revolving Loan Fund Program .
This Act shall not apply to the state revolving loan fund
program.
Added by Acts 1989, 71st Leg., ch. 1202, Sec. 1, eff. Aug. 28,
1989.
Sec. 11.506. Conflict Between State and Federal Definitions .
If the state definition conflicts with the federal definition
in any manner, the federal definition prevails.
Added by Acts 1989, 71st Leg., ch. 1202, Sec. 1, eff. Aug. 28,
1989