Development of a Rule for Drought or Water Shortage Conditions

The Commission adopted rules on April 11, 2012.  These rules will be published in the Texas Register on April 27, 2012, and will be effective May 3, 2012.  The final adopted rules may be found at www.tceq.texas.gov/assets/public/legal/rules/rule_lib/adoptions/11033036_ado_clean.pdf

The commission approved the executive director's rule proposal on October 18, 2011. That proposal may be found at www.tceq.texas.gov/assets/public/legal/rules/rule_lib/proposals/11033036_pro.pdf

The commission held a public comment meeting on Thursday, December 1, 2011 at 2pm. At this meeting, the commission staff heard comments on the proposed rule. The commission also accepted written comments until December 5, 2011 and will respond to these comments in its adoption preamble when it adopts a rule.

The comments received on the rule proposal may be found at www.tceq.texas.gov/assets/public/legal/sep/comments-rule-proposal-dec2011.pdf (PDF).

New section 11.053 requires that the TCEQ executive director may by order, in accordance with the priority of water rights established in the Water Code, during a time of drought or emergency shortage of water, suspend or adjust water rights.  The executive director must consider several factors in deciding whether to issue this Order.

HB 2694 requires that the TCEQ enact rules to define “drought” and “emergency shortage of water” as well as establish procedures. To comply, TCEQ staff is proposing the creation of new 30 Texas Administrative Code Chapter 36, relating to Suspension or Adjustment of Water Rights during Water Shortage.

Prior to developing the rule language, the TCEQ held a rule stakeholder meeting on August 11, 2011, to obtain input from the public on the proposed rulemaking. The webcast from this meeting can be viewed at www.texasadmin.com/tceqs.shtml.

The full text of Section 11.053 of the Texas Water Code is:

Sec. 11.053.  EMERGENCY ORDER CONCERNING WATER RIGHTS.

(a) During a period of drought or other emergency shortage of water, as defined by commission rule, the executive director by order may, in accordance with the priority of water rights established by Section 11.027:

1. temporarily suspend the right of any person who holds a water right to use the water; and
2. temporarily adjust the diversions of water by water rights holders.

(b)  The executive director in ordering a suspension or adjustment under this section shall ensure that an action taken:

1. maximizes the beneficial use of water;
2. minimizes the impact on water rights holders;
3. prevents the waste of water;
4. takes into consideration the efforts of the affected water rights holders to develop and implement the water conservation plans and drought contingency plans required by this chapter;
5. to the greatest extent practicable, conforms to the order of preferences established by Section 11.024; and
6. does not require the release of water that, at the time the order is issued, is lawfully stored in a reservoir under water rights associated with that reservoir.

(c) The commission shall adopt rules to implement this section, including rules:

1. defining a drought or other emergency shortage of water for purposes of this section; and
2. specifying the:
1. conditions under which the executive director may issue an order under this section;
2. terms of an order issued under this section, including the maximum duration of a temporary suspension or adjustment under this section; and
3. procedures for notice of, an opportunity for a hearing on, and the appeal to the commission of an order issued under this section.
   
   

Rulemaking Timeline:

• The rule will be published November 4, 2011, in the Texas Register.
• There will a formal public hearing on December 1, 2011.
• The close of the comment period will be December 5, 2011.
• The commission will consider adoption of the rule on April 11, 2012.