Texas Administrative Code › Title 30 - ENVIRONMENTAL QUALITY › Part 1 - TEXAS COMMISSION ON ENVIRONMENTAL QUALITY › Chapter 297 - WATER RIGHTS, SUBSTANTIVE › Subchapter B - CLASSES OF WATER RIGHTS › Section 297.17 - Emergency Authorization (Texas Water Code, Section)

Current through Reg. 49, No. 28; July 12, 2024
(a) An
				  authorization under this section may be for an emergency appropriation of water
				  or the emergency use of water appropriated by someone other than the
				  applicant.
(b) An emergency
				  authorization provides for the use of state water for an initial period of not
				  more than 120 days if the commission finds emergency conditions to 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. Feasible,
				  practicable alternatives include, but are not limited to, the implementation of
				  water conservation and drought contingency measures or the purchase of water or
				  water rights at a reasonable and affordable price to the applicant.
(c) If the commission finds the applicant's
				  statements required under §
										295.91 of
				  this title (relating to Application for Emergency Authorization) to be correct,
				  the commission may grant the emergency authorization after notice has been
				  provided in accordance with §
										295.156
				  of this title (relating to Notice for Emergency Water Use).
(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
				  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. Additionally, in
				  the case of an emergency transfer of water, the commission shall also issue an
				  order notifying water right holders from which the water is being transferred
				  of the emergency transfer and directing them to limit the exercise of their
				  water rights to the extent necessary to provide for the emergency transfer of
				  water.
(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 (c) - (e) 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 by subsections (d) and (e) of this section. The
				  application requirements of §
										295.91 of
				  this title (relating to Application for Emergency Authorization) must be
				  satisfied before action is taken by the executive director on the request for
				  emergency authorization.
(g) The
				  commission or executive director may grant an emergency authorization under
				  this section for the temporary transfer of all or part of a water right for
				  other than domestic or municipal use to a retail or wholesale water supplier
				  for public health and safety purposes.
(h) The commission or executive director may
				  direct the applicant to timely pay the amounts for which the applicant may be
				  potentially liable under subsections (k) and (l) 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 or the executive director may also order
				  bond or other surety in a form acceptable to the commission or the executive
				  director as a condition for such emergency authorization.
(i) It shall be a condition of granting an
				  emergency authorization under this section that the applicant develop and
				  implement water conservation and drought contingency plans meeting applicable
				  requirements of Chapter 288 of this title (relating to Water Conservation
				  Plans, Drought Contingency Plans and Guidelines and Requirements), unless the
				  applicant has already done so.
(j)
				  The commission or executive director will not grant an emergency authorization
				  under this section which would cause a violation of a federal
				  regulation.
(k) Before considering
				  an emergency transfer of water, the commission or executive director shall
				  first determine whether there is sufficient available unappropriated water to
				  meet the emergency needs of the applicant as provided under Texas Water Code
				  §
										11.1381 and, if so,
				  make the applicant aware of this option. In transferring the amount of the
				  water requested by the applicant, the executive director or the commission
				  shall allocate the requested amount among two or more water rights for other
				  than domestic or municipal use. In determining the water rights from which the
				  water will be transferred, the commission shall be guided by the applicable
				  approved regional water plan and statutory preferences of use provided by Texas
				  Water Code, §
										11.024,
				  and shall also look first to water rights that are unperfected or are not
				  otherwise being used and for which the transfer would not jeopardize existing
				  financial commitments made for the water to be transferred. Nothing in this
				  section is intended to limit a person from demonstrating that the person is an
				  affected person for the purposes of this section.
(l) The person granted an emergency transfer
				  authorization under this section is liable to the affected water right holder
				  and the holder'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 shall use dispute resolution procedures provided under Chapter 40 of
				  this title (relating to Alternative Dispute Resolution Procedure) for a
				  complaint filed under this subsection. 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.
(m) The commission designation of affected
				  water right holders under this section does not preclude other water right
				  holders from establishing the impact by the transfer to them through commission
				  proceedings or other appropriate legal means.
(n) After exhausting all administrative
				  remedies under subsections (l) and (m) of this section, a water right holder
				  from which the use is transferred may file suit to recover or determine the
				  amount due in state 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 attorneys fees.
(o) An emergency authorization does not vest
				  in the grantee any continuing right to the diversion, impoundment or use of
				  water and shall expire and be canceled in accordance with its terms. An
				  emergency transfer authorization may be suspended upon notice, as applicable,
				  in order to protect senior water rights. An emergency transfer authorization
				  shall comply with the conditions contained in the water right or rights for
				  which the water is being transferred, including any conditions to protect
				  environmental flow needs.