Bill Text: TX HB31 | 2017-2018 | 85th Legislature | Comm Sub
Bill Title: Relating to the regulation of groundwater.
Spectrum: Partisan Bill (Republican 3-0)
Status: (Engrossed - Dead) 2017-05-24 - Placed on intent calendar [HB31 Detail]
Download: Texas-2017-HB31-Comm_Sub.html
By: Larson, et al. (Senate Sponsor - Perry) | H.B. No. 31 | |
(In the Senate - Received from the House April 26, 2017; | ||
May 15, 2017, read first time and referred to Committee on | ||
Agriculture, Water & Rural Affairs; May 19, 2017, reported | ||
adversely, with favorable Committee Substitute by the following | ||
vote: Yeas 5, Nays 0; May 19, 2017, sent to printer.) | ||
COMMITTEE SUBSTITUTE FOR H.B. No. 31 | By: Perry |
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relating to the regulation of groundwater. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 35.018(b), Water Code, is amended to | ||
read as follows: | ||
(b) The report must include: | ||
(1) the names and locations of all priority | ||
groundwater management areas and districts created or attempted to | ||
be created on or after November 5, 1985, the effective date of | ||
Chapter 133 (H.B. No. 2), Acts of the 69th Legislature, Regular | ||
Session, 1985; | ||
(2) the authority under which each priority | ||
groundwater management area and district was proposed for creation; | ||
(3) a detailed analysis of each election held to | ||
confirm the creation of a district, including analysis of election | ||
results, possible reasons for the success or failure to confirm the | ||
creation of a district, and the possibility for future voter | ||
approval of districts in areas in which attempts to create | ||
districts failed; | ||
(4) a detailed analysis of the activities of each | ||
district created, including those districts which are implementing | ||
management plans certified under Section 36.1072; | ||
(5) a report on [ |
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(6) recommendations for changes in this chapter and | ||
Chapter 36 that will facilitate the creation of priority | ||
groundwater management areas and the creation and operation of | ||
districts; | ||
(7) a report on educational efforts in newly | ||
designated priority groundwater management areas; and | ||
(8) any other information and recommendations that the | ||
commission considers relevant. | ||
SECTION 2. Sections 36.001(2) and (7), Water Code, are | ||
amended to read as follows: | ||
(2) "Commission" means the Texas [ |
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successor. | ||
(7) "Subdivision of a groundwater reservoir" means a | ||
definable part of a groundwater reservoir in which the groundwater | ||
supply will not be appreciably affected by withdrawing water from | ||
any other part of the reservoir, as indicated by known geological | ||
and hydrological conditions and relationships [ |
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altered. | ||
SECTION 3. Sections 36.002(a) and (b), Water Code, are | ||
amended to read as follows: | ||
(a) A [ |
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groundwater below the surface of the landowner's land as real | ||
property. | ||
(b) The groundwater ownership and rights described by this | ||
section entitle the landowner, including a landowner's lessees, | ||
heirs, or assigns, to: | ||
(1) drill for and produce the groundwater below the | ||
surface of real property, subject to Subsection (d), without | ||
causing waste or malicious drainage of other property or | ||
negligently causing subsidence; [ |
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(2) the right to use groundwater for a beneficial use | ||
without causing waste; and | ||
(3) [ |
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law. | ||
SECTION 4. Section 36.020(a), Water Code, is amended to | ||
read as follows: | ||
(a) At an election to create a district, the temporary | ||
directors may include a proposition for the issuance of bonds or | ||
notes, the levy of taxes to retire all or part of the bonds or notes, | ||
and the levy of a maintenance tax. The maintenance tax rate may not | ||
exceed 37.5 [ |
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SECTION 5. Section 36.061(b), Water Code, is amended to | ||
read as follows: | ||
(b) The state auditor may conduct a financial audit [ |
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audit is necessary. | ||
SECTION 6. Section 36.062, Water Code, is amended to read as | ||
follows: | ||
Sec. 36.062. OFFICES AND MEETING PLACES. (a) The board | ||
shall designate from time to time and maintain one or more regular | ||
offices for conducting the business of the district and maintaining | ||
the records of the district. Such offices must be reasonably | ||
accessible to members of the public who reside in the district and | ||
may be located either inside or outside the district's boundaries | ||
as determined in the discretion of the board. | ||
(b) The board shall designate one or more places reasonably | ||
accessible to members of the public who reside in the district | ||
inside or outside the district for conducting the meetings of the | ||
board. | ||
SECTION 7. Section 36.101(c), Water Code, is amended to | ||
read as follows: | ||
(c) The board shall compile its rules and make them | ||
available for use and inspection at each of the district's offices | ||
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SECTION 8. Sections 36.1071(e) and (f), Water Code, are | ||
amended to read as follows: | ||
(e) In the management plan described under Subsection (a), | ||
the district shall: | ||
(1) identify the performance standards and management | ||
objectives under which the district will operate to achieve the | ||
management goals identified under Subsection (a); | ||
(2) specify, in as much detail as possible, the | ||
actions, procedures, performance, and avoidance that are or may be | ||
necessary to effect the plan, including specifications and proposed | ||
rules; and | ||
(3) include estimates of the following: | ||
(A) modeled available groundwater in the | ||
district based on the desired future condition established under | ||
Section 36.108; | ||
(B) the amount of groundwater being used within | ||
the district on an annual basis; | ||
(C) the annual amount of recharge from | ||
precipitation, if any, to the groundwater resources within the | ||
district; | ||
(D) for each aquifer, the estimated annual volume | ||
of water that discharges: | ||
(i) from the aquifer to springs and any | ||
surface water bodies, including lakes, streams, and rivers; and | ||
(ii) through evaporation or transpiration; | ||
and | ||
(E) the annual volume of lateral and vertical | ||
flow into and out of the district within each aquifer and between | ||
aquifers in the district[ |
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(f) The district shall adopt rules necessary to implement | ||
the management plan. Prior to the development of the management | ||
plan and its approval under Section 36.1072, the district may not | ||
adopt rules other than rules pertaining to the registration and | ||
interim permitting of new and existing wells and rules governing | ||
spacing and procedure before the district's board; however, the | ||
district may not adopt any rules limiting the production of wells, | ||
except rules requiring that groundwater produced from a well be put | ||
to a nonwasteful, beneficial use. A newly created [ |
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may accept applications for permits under Section 36.113, provided | ||
the district does not act on any such application until the | ||
district's initial management plan is approved as provided in | ||
Section 36.1072. | ||
SECTION 9. Section 36.1072(f), Water Code, is amended to | ||
read as follows: | ||
(f) If the executive administrator does not approve the | ||
district's management plan, the executive administrator shall | ||
provide to the district, in writing, the reasons for the | ||
action. Not later than the 180th day after the date a district | ||
receives notice that its management plan has not been approved, the | ||
district may submit a revised management plan for review and | ||
approval. The executive administrator's decision may be appealed | ||
to the development board. If the development board decides not to | ||
approve the district's management plan on appeal, the district may | ||
request that the conflict be mediated. The district and the board | ||
may seek the assistance of the Center for Public Policy Dispute | ||
Resolution at The University of Texas School of Law or an | ||
alternative dispute resolution system established under Chapter | ||
152, Civil Practice and Remedies Code, in obtaining a qualified | ||
impartial third party to mediate the conflict. The cost of the | ||
mediation services must be specified in the agreement between the | ||
parties and the Center for Public Policy Dispute Resolution or the | ||
alternative dispute resolution system. If the parties do not | ||
resolve the conflict through mediation, the decision of the | ||
development board not to approve the district's management plan may | ||
be appealed to a district court in Travis County. Costs for the | ||
appeal shall be set by the court hearing the appeal. An appeal | ||
under this subsection is by trial de novo. The commission shall | ||
not take enforcement action against a district under Subchapter I | ||
until the latest of the expiration of the 180-day period, the date | ||
the development board has taken final action withholding approval | ||
of a revised management plan, the date the mediation is completed, | ||
or the date a final judgment upholding the board's decision is | ||
entered by a district court. An enforcement action may not be | ||
taken against a district by the commission [ |
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under Subchapter I because the district's management plan and the | ||
approved regional water plan are in conflict while the parties are | ||
attempting to resolve the conflict before the development board, in | ||
mediation, or in court. Rules of the district continue in full | ||
force and effect until all appeals under this subsection have been | ||
exhausted and the final judgment is adverse to the district. | ||
SECTION 10. Section 36.108(d), Water Code, is amended to | ||
read as follows: | ||
(d) Not later than September 1, 2010, and every five years | ||
thereafter, the districts shall consider groundwater monitoring | ||
data, groundwater availability models, and other data or | ||
information for the management area and shall propose for adoption | ||
desired future conditions for the relevant aquifers within the | ||
management area. Before voting on the proposed desired future | ||
conditions of the aquifers under Subsection (d-2), the districts | ||
shall consider: | ||
(1) aquifer uses or conditions within the management | ||
area, including conditions that differ substantially from one | ||
geographic area to another; | ||
(2) the water supply needs and water management | ||
strategies included in the state water plan; | ||
(3) hydrological conditions, including for each | ||
aquifer in the management area the total estimated recoverable | ||
storage as provided by the executive administrator, and the average | ||
annual recharge, inflows, and discharge; | ||
(4) other environmental impacts, including impacts on | ||
spring flow and other interactions between groundwater and surface | ||
water; | ||
(5) the impact on subsidence; | ||
(6) socioeconomic impacts reasonably expected to | ||
occur; | ||
(7) the impact on the interests and rights in private | ||
property, including ownership and the rights of management area | ||
landowners and their lessees and assigns in groundwater as | ||
recognized under Section 36.002; | ||
(8) the feasibility of achieving the desired future | ||
condition and the degree to which any previously adopted desired | ||
future condition is being achieved; and | ||
(9) any other information relevant to the specific | ||
desired future conditions. | ||
SECTION 11. Section 36.113, Water Code, is amended by | ||
amending Subsections (c) and (d) and adding Subsection (d-1) to | ||
read as follows: | ||
(c) A district may require that only the following be | ||
included in the permit or permit amendment application, as | ||
applicable under the rules of the district: | ||
(1) the name and mailing address of the applicant and | ||
the owner of the land on which the well will be located; | ||
(2) if the applicant is other than the owner of the | ||
property, documentation establishing the applicable authority to | ||
construct and operate a well for the proposed use; | ||
(3) a statement of the nature and purpose of the | ||
proposed use and the amount of water to be used for each purpose; | ||
(4) a water conservation plan or a declaration that | ||
the applicant will comply with the district's management plan; | ||
(5) the location of each well and the estimated rate at | ||
which water will be withdrawn; | ||
(6) a water well closure plan or a declaration that the | ||
applicant will comply with well plugging guidelines and report | ||
closure to the commission; [ |
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(7) a drought contingency plan; and | ||
(8) other information: | ||
(A) included in a rule of the district in effect | ||
on the date the application is submitted that specifies what | ||
information must be included in an application for a determination | ||
of administrative completeness; and | ||
(B) reasonably related to an issue that a | ||
district is authorized to consider under this chapter. | ||
(d) This subsection does not apply to the renewal of an | ||
operating permit issued under Section 36.1145. Before granting or | ||
denying a permit, or a permit amendment issued in accordance with | ||
Section 36.1146, the district shall consider whether: | ||
(1) the application conforms to the requirements | ||
prescribed by this chapter and is accompanied by the prescribed | ||
fees; | ||
(2) the proposed use of water unreasonably affects: | ||
(A) existing groundwater and surface water | ||
resources; [ |
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(B) existing permit holders; or | ||
(C) registered wells that are exempt from the | ||
requirement to obtain a permit under this chapter or district | ||
rules; | ||
(3) the proposed use of water is dedicated to any | ||
beneficial use; | ||
(4) the proposed use of water is consistent with the | ||
district's approved management plan; | ||
(5) if the well will be located in the Hill Country | ||
Priority Groundwater Management Area, the proposed use of water | ||
from the well is wholly or partly to provide water to a pond, lake, | ||
or reservoir to enhance the appearance of the landscape; | ||
(6) the applicant has agreed to avoid waste and | ||
achieve water conservation; and | ||
(7) the applicant has agreed that reasonable diligence | ||
will be used to protect groundwater quality and that the applicant | ||
will follow well plugging guidelines at the time of well closure. | ||
(d-1) The district's consideration of the effect the | ||
proposed use of water has on a registered well described by | ||
Subsection (d)(2)(C) does not affect the registered well's permit | ||
exemption under this chapter or district rules. | ||
SECTION 12. Section 36.114(h), Water Code, is amended to | ||
read as follows: | ||
(h) An application is administratively complete if it | ||
contains the [ |
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require that additional information be included in an application | ||
for a determination of administrative completeness. | ||
SECTION 13. Subchapter D, Chapter 36, Water Code, is | ||
amended by adding Section 36.1147 to read as follows: | ||
Sec. 36.1147. LIMITATION ON APPLICABILITY OF RULES. The | ||
rules of a district in effect on the date an application for a | ||
permit or a permit amendment is submitted to the district are the | ||
only district rules that may govern the district's decision to | ||
grant or deny the application. | ||
SECTION 14. The heading to Section 36.122, Water Code, is | ||
amended to read as follows: | ||
Sec. 36.122. EXPORT [ |
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DISTRICT. | ||
SECTION 15. Section 36.122, Water Code, is amended by | ||
amending Subsections (a), (b), (c), (d), (f), and (k) and adding | ||
Subsections (f-1) and (f-2) to read as follows: | ||
(a) This section applies to [ |
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or an amendment to a permit under Section 36.113 that proposes the | ||
export [ |
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boundaries[ |
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(b) A district may promulgate rules requiring a person to | ||
obtain an operating [ |
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permit under Section 36.113 from the district to produce and export | ||
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separate permit for the export of groundwater for use outside [ |
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of the district [ |
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(c) Except as provided in Subsection (e) [ |
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conditions on exporters [ |
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solely because the applicant intends to export groundwater for use | ||
outside of the district. | ||
(d) The district may impose a reasonable fee for processing | ||
an application under this section. The fee may not exceed fees that | ||
the district imposes for processing other applications under | ||
Section 36.113. An application filed under [ |
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section shall be considered and processed under the same procedures | ||
as other applications for permits under Section 36.113 [ |
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(f) In reviewing a proposed transfer of groundwater out of | ||
the district, the district shall consider: | ||
(1) the availability of water in the district [ |
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supply is requested; and | ||
(2) the projected effect of the proposed transfer on | ||
aquifer conditions, depletion, subsidence, or effects on existing | ||
permit holders or other groundwater users within the district[ |
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(f-1) A term for a permit issued under this section that | ||
existed on May 29, 2017, shall automatically be extended on or | ||
before its expiration: | ||
(1) to a term that is not shorter than the term of an | ||
operating permit for the production of water to be exported that is | ||
in effect at the time of the extension; and | ||
(2) for each additional term for which that operating | ||
permit for production is renewed under Section 36.1145 or remains | ||
in effect under Section 36.1146. | ||
(f-2) A term automatically extended under Subsection (f-1) | ||
continues to be subject to conditions contained in the permit as | ||
issued before the automatic extension. | ||
(k) A [ |
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district may periodically review the amount of water that may be | ||
transferred under the permit and may limit the amount if additional | ||
factors considered in Subsection (f) warrant the limitation, | ||
subject to Subsection (c). The review described by this subsection | ||
may take place not more frequently than the period provided for the | ||
review or renewal of regular permits issued by the district. In its | ||
determination of whether to renew a permit issued under this | ||
section, the district shall consider relevant and current data for | ||
the conservation of groundwater resources and shall consider the | ||
permit in the same manner it would consider any other permit in the | ||
district. | ||
SECTION 16. Section 36.201(b), Water Code, is amended to | ||
read as follows: | ||
(b) The board may annually levy taxes to pay the maintenance | ||
and operating expenses of the district at a rate not to exceed 37.5 | ||
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SECTION 17. Section 36.303(a), Water Code, is amended to | ||
read as follows: | ||
(a) If Section 36.301 or [ |
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applies, the commission, after notice and hearing in accordance | ||
with Chapter 2001, Government Code, shall take action the | ||
commission considers appropriate, including: | ||
(1) issuing an order requiring the district to take | ||
certain actions or to refrain from taking certain actions; | ||
(2) dissolving the board in accordance with Sections | ||
36.305 and 36.307 and calling an election for the purpose of | ||
electing a new board; | ||
(3) requesting the attorney general to bring suit for | ||
the appointment of a receiver to collect the assets and carry on the | ||
business of the groundwater conservation district; or | ||
(4) dissolving the district in accordance with | ||
Sections 36.304, 36.305, and 36.308. | ||
SECTION 18. Sections 36.4051(a) and (d), Water Code, are | ||
amended to read as follows: | ||
(a) The board may take action on any uncontested application | ||
at a properly noticed public meeting held at any time after the | ||
public hearing at which the application is scheduled to be heard. | ||
The board may issue a written order to: | ||
(1) grant the application; | ||
(2) grant the application with special conditions | ||
provided that the applicant agrees to the conditions before the | ||
issuance of the order; or | ||
(3) deny the application. | ||
(d) An applicant may, not later than the 20th day after the | ||
date the board issues an order granting or denying the application, | ||
demand a contested case hearing [ |
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SECTION 19. Chapter 36, Water Code, is amended by adding | ||
Subchapter M-1 to read as follows: | ||
SUBCHAPTER M-1. MORATORIUM ON ISSUING PERMIT | ||
Sec. 36.426. PROCEDURE FOR ADOPTING MORATORIUM. A district | ||
may not adopt a moratorium on the issuance of a permit or permit | ||
amendment unless the district: | ||
(1) complies with the notice and hearing procedures | ||
prescribed by Section 36.427; and | ||
(2) makes written findings supporting the district's | ||
determination regarding the issuance, including the district's | ||
justification for imposing the moratorium, if applicable. | ||
Sec. 36.427. NOTICE AND PUBLIC HEARING REQUIREMENTS. (a) A | ||
district may impose a moratorium on the issuance of a permit or | ||
permit amendment only after the district conducts a public hearing | ||
as provided by this section. The public hearing must provide | ||
residents of the district and other affected parties an opportunity | ||
to be heard. | ||
(b) The district shall publish notice of the date, time, and | ||
place of the hearing in a newspaper of general circulation in the | ||
district on or before the fourth day before the date of the hearing. | ||
(c) During the period beginning on the fifth business day | ||
after the date a notice is published under Subsection (b) and ending | ||
on the date the district makes its determination under Subsection | ||
(d), a temporary moratorium is imposed. During that period, a | ||
district may stop issuing permits or permit amendments. | ||
(d) Not later than the 12th day after the date of the public | ||
hearing, the district shall make a final determination on whether | ||
to impose the moratorium and shall issue written findings | ||
supporting the district's determination, including the district's | ||
justification for imposing the moratorium, if applicable. | ||
Sec. 36.428. EXPIRATION OF MORATORIUM; EXTENSION | ||
PROHIBITED. A moratorium imposed under this subchapter expires on | ||
the 90th day after the date the district makes its determination | ||
under Section 36.427(d) to impose the moratorium. The district may | ||
not extend a moratorium imposed under this subchapter. | ||
SECTION 20. Section 8824.101, Special District Local Laws | ||
Code, is amended to read as follows: | ||
Sec. 8824.101. RESTRICTIONS ON GENERAL POWERS. Section | ||
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the district. | ||
SECTION 21. Section 8833.102, Special District Local Laws | ||
Code, is amended to read as follows: | ||
Sec. 8833.102. LIMITATIONS ON DISTRICT POWERS. The | ||
district may not impose: | ||
(1) a tax; [ |
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(2) a fee on a well used exclusively for domestic or | ||
livestock watering purposes; or | ||
(3) production fees for an annual period greater than | ||
$1 per acre-foot for water used for agricultural use or 17 cents per | ||
thousand gallons for water used for any other purpose. | ||
SECTION 22. Section 11, Chapter 1321, Acts of the 77th | ||
Legislature, Regular Session, 2001, is amended by adding Subsection | ||
(b-1) to read as follows: | ||
(b-1) The district may not assess production fees for an | ||
annual period greater than $1 per acre-foot for water used for | ||
agricultural use or 17 cents per thousand gallons for water used for | ||
any other purpose. | ||
SECTION 23. The following provisions of the Water Code are | ||
repealed: | ||
(1) Section 36.001(31), as added by Chapter 415 (H.B. | ||
2767), Acts of the 84th Legislature, Regular Session, 2015; | ||
(2) Section 36.104; | ||
(3) Section 36.1072(g); | ||
(4) Section 36.108(d-5); | ||
(5) Sections 36.122(i), (j), (l), (m), (n), (p), and | ||
(q); | ||
(6) Section 36.205(d); and | ||
(7) Section 36.302. | ||
SECTION 24. A moratorium on the issuance of a permit or | ||
permit amendment that is adopted by a groundwater conservation | ||
district before September 1, 2017, may not continue in effect after | ||
November 30, 2017. | ||
SECTION 25. (a) A permit to export groundwater approved by | ||
a groundwater conservation district before the effective date of | ||
this Act is validated and confirmed in all respects. This | ||
subsection does not apply to a permit to export groundwater that is | ||
subject to litigation: | ||
(1) that is pending on the effective date of this Act; | ||
or | ||
(2) that results in final judgment that may not be | ||
appealed that the permit is invalid. | ||
(b) An administratively complete permit application to | ||
export groundwater received by a groundwater conservation district | ||
before the effective date of this Act is governed by the law in | ||
effect when the application became administratively complete. The | ||
former law is continued for the purpose of processing an | ||
application received before the effective date of this Act. | ||
(c) Except as provided by Subsection (b) of this section, | ||
the changes in law made by this Act apply only to an application for | ||
a permit or a permit amendment that is received by a groundwater | ||
conservation district on or after the effective date of this Act. | ||
An application for a permit or permit amendment that is received | ||
before the effective date of this Act is governed by the law in | ||
effect on the date the application is received, and that law is | ||
continued in effect for that purpose. | ||
SECTION 26. To the extent of any conflict, this Act prevails | ||
over another Act of the 85th Legislature, Regular Session, 2017, | ||
relating to changes to Chapter 36, Water Code, or nonsubstantive | ||
additions to and corrections in enacted codes. | ||
SECTION 27. This Act takes effect September 1, 2017. | ||
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