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S.B. 3 is an ambitious water bill...
The major water legislation for 2005 was introduced three months into the 140-day session of the Texas Legislature. S.B. 3 continues the revamping of the state's water policy begun by S.B. 1 in 1997 and S.B. 2 in 2001. The legislation is a result of a special interim study mandated by Lt. Gov. David Dewhurst to surface the water issues that have not been resolved by the previous major water initiatives.
S.B. 3 is an ambitious bill. It attempts to tackle the protection of environmental flows for Texas' river systems; financing of water infrastructure; water conservation planning; consistent management by groundwater conservation districts over common aquifers; protection for domestic and agricultural wells statewide; and the allocation of groundwater rights based on historical use.
The bill establishes a new process for determining and protecting the amount of surface water that is needed for the environment. For river systems and the bays and estuaries to remain healthy for fish and wildlife, a certain water flow is necessary. There is currently little protection of these flows. S.B.3 would create a commission to study each river basin and recommend the minimum level of flows necessary to maintain the health of the basin. The Texas Commission on Environmental Quality (TCEQ) will review the recommendation of the commission and then establish the minimum flow. The bill does not negatively impact any existing water right holders. It focuses on restrictions for new permits and permit amendments, and voluntary initiatives for existing water rights, to protect the minimum flow.
The state water plan has identified over $90 billion in infrastructure needs for the future. However, there is no funding mechanism to raise revenue to finance these projects. S.B. 3 proposes a fee of 13 cents per 1,000 gallons of water consumed by the customers of retail water utilities. The bill exempts the first 5,000 gallons of water from being assessed the fee. This number is based upon the typical amount of water used by a family of four on a monthly basis for essential needs. The bill also requires "water marketers" to apply for a license and pay a fee to the state. The revenue raised by these fees would be available to finance water projects, including agricultural conservation.
During the 2003 session of the Texas Legislature, a law was passed to create a Water Conservation Task Force to study water conservation. The recommendations of this task force have been included in S.B. 3. Of note, the bill requires municipalities to submit water conservation plans to the state that are based upon the best management practices established by the task force. The bill would also create a statewide water conservation awareness program to educate Texans about the importance of water conservation. The bill does not mandate conservation measures.
The most controversial part of S.B. 3 is likely to be the provisions regarding groundwater management. It has often been said that groundwater doesn't stop at the county line. Regional entities called Groundwater Management Area Councils are created by the bill to ensure groundwater districts in a common area are working toward common management goals. Critics will assert these councils take away the local control of groundwater conservation districts.
However, the membership of the councils are comprised of a representative from each groundwater conservation district, along with four groundwater stakeholders: agriculture, water supplier, regional planning group member, and, if one exists in the area, a groundwater exporter. All of the stakeholders must reside in one of the districts in the groundwater management area.
The bill modifies the rule of capture regarding high capacity nonagricultural wells. S.B. 3 allows the owner of a domestic or agricultural well to file a complaint with TCEQ if a high capacity nonagricultural well damages their domestic or agricultural well. TCEQ has the authority to mitigate the damage to the well.
A controversy has arisen over the property right of landowners in some areas where the local groundwater conservation districts have allocated groundwater rights based on historical use. In these areas, landowners without historical use have been denied the right to produce groundwater, except for domestic and livestock purposes. This restricts the property right of these landowners to access the groundwater beneath their property. The policy of the Texas Farm Bureau, as adopted by our membership, is that historical use should be considered by districts to protect the current livelihood of these landowners. However, our membership decided that historical use should be tied to the purpose for which you used the water—i.e. irrigation, municipal, industrial, etc. Our policy states, that if the purpose of use changes, then that historical user should not retain the full historical groundwater right. This allows the landowners who did not have historical use to have the opportunity to get back some of their groundwater right that was restricted to benefit the historical user. The language in S.B. 3 would implement this policy of our organization.
S.B. 3 has a long journey to make through the legislative process in a very short amount of time. Texas Farm Bureau will work with the legislature to ensure the legislation will not harm the water resources of agriculture or rural Texas.
