Texas Register, Volume 36, Number 44, Pages 7417-7610, November 4, 2011 Page: 7,465
7417-7610 p. ; 28 cm.View a full description of this periodical.
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conservation plans and drought contingency plans established
by TWC, Chapter 11, as required in 36.5(c)(4). The executive
director shall consider whether the plans were approved by the
TCEQ and the Texas Water Development Board, and whether
they were implemented, and if the executive director does not
adjust or suspend a junior water right for public welfare reasons
he may require implementation of higher levels of the plans if
required to maximize beneficial use, avoid waste, and minimize
impacts. This section is necessary to provide how the executive
director will consider this factor required by TWC, 11.053.
Section 36.8, Notice of and Opportunity for Hearing on the Is-
suance of a Suspension or Adjustment Order, provides proce-
dures for notice, hearing, and appeal of an order to the commis-
sion under this chapter. This procedure follows the procedure
for other emergency orders issued by the commission. The or-
der may be issued by the executive director without notice, but
there must be a hearing to affirm, modify, or set aside the order
before the commission. Notice of the hearing shall be given to
all water rights that were suspended or adjusted under the order.
This section is required by TWC, 11.053.
Fiscal Note: Costs to State and Local Government
Jeffrey Horvath, Analyst in Strategic Planning and Assessment,
has determined that for the first five-year period the proposed
rules are in effect, no significant fiscal implications are antici-
pated for the agency and no fiscal implications are anticipated
for other units of state or local government as a result of admin-
istration or enforcement of the proposed rules.
HB 2694 provides that the executive director may temporarily
suspend or adjust water rights during times of drought or other
emergency shortages of water. The commission is required to
adopt rules to implement this provision, define a drought or other
emergency shortage of water, and specify the conditions under
which the executive director may issue such an order under, in-
cluding the maximum duration of a temporary suspension or ad-
justment. The rules must also set out procedures for notice, op-
portunity for a hearing, and the appeal to the commission of an
order issued under this section.
No significant fiscal implications are anticipated for the commis-
sion to implement and administer these new requirements of HB
2694. The adoption of rules, the issuance of any orders, and any
work related to appeals to the commission would be absorbed
by water rights and enforcement staff using existing agency re-
sources.
The purpose of the rulemaking is to mitigate the impact to wa-
ter rights caused by drought or an emergency shortage of water,
based on the priority doctrine. Under current law, senior wa-
ter rights may make calls on water rights junior to them if they
cannot get all the water that they need under an authorized wa-
ter right. Since the TCEQ is presently protecting senior water
rights, the proposed rules are not expected to significantly affect
current practices with regard to water rights. The commission
would be able to consider other factors, such as preferences of
use if it is "practicable," but this action would likely allow some
water rights, such as municipalities, to continue to take water
under their water rights as needed for human health and safety
concerns such as for drinking water. Some junior water rights
may be impacted by these actions, but the commission is not
able to determine whether water would have been available to
the junior water right holder even if the right had not been sus-
pended.Units of local government who are junior water right holders may
be affected by the provisions in the proposed rule relating to
the potential suspension or curtailment of water rights during a
drought or emergency shortage of water. However, under cur-
rent law, senior water rights may make calls on water rights junior
to them if they cannot get all the water that they need under an
authorized water right. Since the TCEQ is presently protecting
senior water rights, the proposed rule is not expected to signifi-
cantly affect current practices with regard to water rights. Like-
wise, local governments who are senior water right holders may
be affected by provisions in the proposed rule which would allow
them to receive water that they potentially would not have re-
ceived without the executive director suspension or adjustment.
Public Benefits and Costs
Mr. Horvath has also determined that for each year of the first
five years the proposed rules are in effect, the public benefit an-
ticipated from the changes seen in the proposed rules will be
compliance with state law and specification of the conditions that
would be considered when water right suspensions and adjust-
ments are ordered and the appeal process for those orders.
The proposed rulemaking may have fiscal implications for in-
dividuals or businesses. Some junior water rights may be im-
pacted by these actions, but the commission is not able to de-
termine whether water would have been available to the junior
water right holder even if the right had not been suspended. The
proposed rulemaking does not affect or change the law of "first
in time, first in right," otherwise known as the priority doctrine.
The proposed rulemaking implements sections of HB 2694 and
provides specification of the conditions that would be considered
when water right suspensions and adjustments are ordered and
the appeal process for those orders.
Businesses and individuals who are junior water right holders
may be affected by the provisions in the proposed rules relating
to the potential suspension or curtailment of water rights during
a drought or emergency shortage of water. However, under cur-
rent law, senior water rights may make calls on water rights junior
to them if they cannot get all the water that they need under an
authorized water right. Since the TCEQ is presently protecting
senior water rights, the proposed rules are not expected to affect
current practices with regard to water rights. Likewise, individu-
als or businesses who are senior water right holders are not ex-
pected to be affected by provisions in the proposed rules which
would allow them to receive water that they potentially would not
have received without the executive director suspension or ad-
justment.
Small Business and Micro-Business Assessment
No adverse fiscal implications are anticipated for small or mi-
cro-businesses as a result of the proposed rules. A small busi-
ness is expected to experience the same fiscal impact as that
experienced by individuals or large business under the proposed
rules.
Small Business Regulatory Flexibility Analysis
The commission has reviewed this proposed rulemaking and de-
termined that a small business regulatory flexibility analysis is not
required because the proposed rules are required to comply with
state law and do not adversely affect a small or micro-business
in a material way for the first five years that the proposed rules
are in effect.
Local Employment Impact StatementPROPOSED RULES November 4, 2011
36 TexReg 7465
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Texas. Secretary of State. Texas Register, Volume 36, Number 44, Pages 7417-7610, November 4, 2011, periodical, November 4, 2011; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth193249/m1/47/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.