2005 Texas Water Code CHAPTER 12. PROVISIONS GENERALLY APPLICABLE TO WATER RIGHTS

WATER CODE

CHAPTER 12. PROVISIONS GENERALLY APPLICABLE TO WATER RIGHTS

SUBCHAPTER A. GENERAL PROVISIONS


	§ 12.001. DEFINITIONS.  The definitions contained in 
Subchapter A, Chapter 11 of this code apply to this chapter.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977.

SUBCHAPTER B. GENERAL POWERS AND DUTIES RELATING TO WATER RIGHTS


	§ 12.011. PERMIT APPLICATIONS.  The commission shall 
receive, administer, and act on all applications for permits and 
permit amendments:
		(1)  to appropriate public water for beneficial use or 
storage;  or         
		(2)  to construct works for the impoundment, storage, 
diversion, or transportation of public water.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.031, eff. 
Sept. 1, 1985.


	§ 12.012. EVALUATION OF OUTSTANDING PERMITS.  The 
commission shall actively and continually evaluate outstanding 
permits and certified filings and shall carry out measures to 
cancel wholly or partially the certified filings and permits that 
are subject to cancellation.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.031, eff. 
Sept. 1, 1985.


	§ 12.013. RATE-FIXING POWER.  (a) The commission shall 
fix reasonable rates for the furnishing of raw or treated water for 
any purpose mentioned in Chapter 11 or 12 of this code.
	(b)  The term "political subdivision" when used in this 
section means incorporated cities, towns or villages, counties, 
river authorities, water districts, and other special purpose 
districts.
	(c)  The commission in reviewing and fixing reasonable rates 
for furnishing water under this section may use any reasonable 
basis for fixing rates as may be determined by the commission to be 
appropriate under the circumstances of the case being reviewed;  
provided, however, the commission may not fix a rate which a 
political subdivision may charge for furnishing water which is less 
than the amount required to meet the debt service and bond coverage 
requirements of that political subdivision's outstanding debt.
	(d)  The commission's jurisdiction under this section 
relating to incorporated cities, towns, or villages shall be 
limited to water furnished by such city, town, or village to another 
political subdivision on a wholesale basis.
	(e)  The commission may establish interim rates and compel 
continuing service during the pendency of any rate proceeding.
	(f)  The commission may order a refund or assess additional 
charges from the date a petition for rate review is received by the 
commission of the difference between the rate actually charged and 
the rate fixed by the commission, plus interest at the statutory 
rate.
	(g)  No action or proceeding commenced prior to January 1, 
1977, before the Texas Water Rights Commission shall be affected by 
the enactment of this section.
	(h)  Nothing herein contained shall affect the jurisdiction 
of the Public Utility Commission.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977.


	§ 12.014. USE OF COMMISSION SURVEYS;  POLICY.  The 
commission shall make use of surveys, studies, and investigations 
conducted by the staff of the commission in order to ascertain the 
character of the principal requirements of the district regional 
division of the watershed areas of the state for beneficial uses of 
water, to the end that distribution of the right to take and use 
state water may be more equitably administered in the public 
interest, that privileges granted for recognized uses may be 
economically coordinated so as to achieve the maximum of public 
value from the state's water resources, and that the distinct 
regional necessities for water control and conservation and for 
control of harmful floods may be recognized.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.031, eff. 
Sept. 1, 1985.


	§ 12.015. POWER TO CONDEMN WORKS.  (a) The commission may 
condemn existing works if their existence or operation may, in the 
judgment of the commission, become a public menace or dangerous to 
life and property.
	(b)  In all cases of proposed condemnation, the commission 
shall notify the interested party of the contemplated action and 
shall specify a time for him to appear and be heard.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977.


	§ 12.016. POWER TO INSPECT.  The executive director or 
his authorized agent may inspect any impoundment, diversion, or 
distribution works during construction to determine whether or not 
they are being constructed in a safe manner and whether or not they 
are being constructed according to the order of the commission.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977.


	§ 12.017. POWER TO ENTER LAND.  Any member or employee of 
the commission may enter any person's land, natural waterway, or 
artificial waterway for the purpose of making an investigation that 
would, in the judgment of the executive director, assist the 
commission in the discharge of its duties.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.031, eff. 
Sept. 1, 1985.

SUBCHAPTER C. PROJECTS


	§ 12.051. FEDERAL PROJECTS.  (a) In this section:                           
		(1)  "Federal project" means an engineering 
undertaking or work to construct, enlarge, or extend a dam, lake, 
reservoir, or other water-storage or flood-control work or a 
drainage, reclamation, or canalization undertaking or any 
combination of these financed in whole or in part with funds of the 
United States.
		(2)  "Engineering report" means the plans, data, 
profiles, maps, estimates, and drawings prepared in connection with 
a federal project.
		(3)  "Federal agency" means the Corps of Engineers of 
the United States Army, the Bureau of Reclamation of the Department 
of Interior, the Soil Conservation Service of the Department of 
Agriculture, the United States Section of the International 
Boundary and Water Commission, or any other agency of the United 
States, the function of which includes the conservation, 
development, retardation by impounding, control, or study of the 
water resources of Texas or the United States.
	(b)  When the governor receives an engineering report 
submitted by a federal agency seeking the governor's approval of a 
federal project, he shall immediately forward the report to the 
board for its study concerning the feasibility of the federal 
project.
	(c)  The board shall hold a public hearing to receive the 
views of persons and groups who might be affected by the proposed 
federal project.  The board shall publish notice of the time, date, 
place, nature, and purpose of the public hearing once each week for 
two consecutive weeks before the date stated in the notice in a 
newspaper having general circulation in the section of the state 
where the federal project is to be located or the work done.
	(d)  After hearing all the evidence both for and against 
approval of the federal project, the board shall enter its order 
approving or disapproving the feasibility of the federal project, 
and the order shall include the board's reasons for approval or 
disapproval.
	(e)  In determining feasibility, the board shall consider, 
among other relevant factors:
		(1)  the effect of the federal project on water users on 
the stream as certified by the commission;
		(2)  the public interest to be served;                                        
		(3)  the development of damsites to the optimum 
potential for water conservation;
		(4)  the integration of the federal project with other 
water conservation activities;
		(5)  the protection of the state's interests in its 
water resources;  and   
		(6)  the engineering practicality of the federal 
project, including cost of construction, operation, and 
maintenance.
	(f)  The board shall forward to the governor a certified copy 
of its order.  The board's finding that the federal project is 
either feasible or not feasible is final, and the governor shall 
notify the federal agency that the federal project has been either 
approved or disapproved.
	(g)  The provisions of this section do not apply to the state 
soil conservation board as long as that board is designated by the 
governor as the authorized state agency having supervisory 
responsibility to approve or disapprove of projects designed to 
effectuate watershed-protection and flood-prevention programs 
initiated in cooperation with the United States Department of 
Agriculture.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.032, eff. 
Sept. 1, 1985;  Acts 1987, 70th Leg., ch. 20, § 1, eff. Sept. 1, 
1987.


	§ 12.052. DAM SAFETY.  (a) The commission shall make and 
enforce rules and orders and shall perform all other acts necessary 
to provide for the safe construction, maintenance, repair, and 
removal of dams located in this state.
	(b)  Rules and orders made by the commission shall be made 
after proper notice and hearing as provided in the rules of the 
commission.
	(c)  If the owner of a dam that is required to be constructed, 
reconstructed, repaired, or removed in order to comply with the 
rules and orders promulgated under Subsection (a) of this section 
wilfully fails or refuses to comply within the 30-day period 
following the date of the commission's final, nonappealable order 
to do so or if a person wilfully fails to comply with any rule or 
other order issued by the commission under this section within the 
30-day period following the effective date of the order, he is 
liable to a penalty of not more than $5,000 a day for each day he 
continues to violate this section.  The state may recover the 
penalty by suit brought for that purpose in the district court of 
Travis County.
	(d)  If the commission determines that the existing 
condition of the dam is creating or will cause extensive or severe 
property damage or economic loss to others or is posing an immediate 
and serious threat to human life or health and that other procedures 
available to the commission to remedy or prevent the occurrence of 
the situation will result in unreasonable delay, the commission may 
issue an emergency order, either mandatory or prohibitory in 
nature, directing the owner of a dam to repair, modify, maintain, 
dewater, or remove the dam which the commission determines is 
unsafe.  The emergency order may be issued without notice to the dam 
owner or with notice the commission considers practicable under the 
circumstances.  The notice does not have to comply with Chapter 
2001, Government Code.
	(e)  If the commission issues an emergency order under 
authority of this section without notice to the dam owner, the 
commission shall fix a time and place for a hearing which shall be 
held as soon as practicable to affirm, modify, or set aside the 
emergency order.  The notice does not have to comply with Chapter 
2001, Government Code.  If the nature of the commission's action 
requires further proceedings, those proceedings shall be conducted 
as appropriate under the Administrative Procedure and Texas 
Register Act, as amended (Article 6252-13a, Vernon's Texas Civil 
Statutes).
	(f)  Nothing in this section or in rules or orders made by the 
commission shall be construed to relieve an owner or operator of a 
dam or reservoir of the legal duties, obligations, or liabilities 
incident to ownership or operation.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1981, 67th Leg., p. 3150, ch. 828, § 1, eff. 
June 17, 1981;  Acts 1985, 69th Leg., ch. 795, § 1.033, eff. 
Sept. 1, 1985;  Acts 1995, 74th Leg., ch. 76, § 5.95(63), eff. 
Sept. 1, 1995;  Acts 1997, 75th Leg., ch. 1010, § 3.04, eff. 
Sept. 1, 1997.

SUBCHAPTER D. WATER DISTRICTS


	§ 12.081. CONTINUING RIGHT OF SUPERVISION OF DISTRICTS 
AND AUTHORITIES CREATED UNDER ARTICLE III, SECTION 52 AND ARTICLE 
XVI, SECTION 59 OF THE TEXAS CONSTITUTION.  (a) The powers and 
duties of all districts and authorities created under Article III, 
Section 52 and Article XVI, Section 59 of the Texas Constitution are 
subject to the continuing right of supervision of the State of Texas 
by and through the commission or its successor, and this 
supervision may include but is not limited to the authority to:
		(1)  inquire into the competence, fitness, and 
reputation of the officers and directors of any district or 
authority;
		(2)  require, on its own motion or on complaint by any 
person, audits or other financial information, inspections, 
evaluations, and engineering reports;
		(3)  issue subpoenas for witnesses to carry out its 
authority under this subsection;
		(4)  institute investigations and hearings using 
examiners appointed by the commission;
		(5)  issue rules necessary to supervise the districts 
and authorities, except that such rules shall not apply to water 
quality ordinances adopted by any river authority which meet or 
exceed minimum requirements established by the commission;  and
		(6)  the right of supervision granted herein shall not 
apply to matters relating to electric utility operations.
	(b)  The commission shall prepare and submit to the governor, 
lieutenant governor, and speaker of the house a report of any 
findings made under this section.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.034, eff. 
Sept. 1, 1985;  Acts 1989, 71st Leg., ch. 196, § 2, eff. Aug. 28, 
1989;  Acts 1995, 74th Leg., ch. 76, § 11.283, eff. Sept. 1, 
1995.


	§ 12.082. DUTY TO INVESTIGATE FRESH WATER SUPPLY DISTRICT 
PROJECTS.  (a) In this section:
		(1)  "District" means fresh water supply district.                            
		(2)  "Designated agent" means any licensed engineer 
selected by the executive director to perform the functions 
specified in this section.
	(b)  The commission shall investigate and report on the 
organization and feasibility of all districts created under Chapter 
53 of this code which issue bonds under the provisions of that 
chapter.
	(c)  A district that wants to issue bonds for any purpose 
shall submit to the commission a written application for 
investigation, together with a copy of the engineer's report and a 
copy of the data, profiles, maps, plans, and specifications made in 
connection with the engineer's report.
	(d)  The executive director or his designated agent shall 
examine the application and other information and shall visit the 
project and carefully inspect it.  The executive director or his 
designated agent may ask for and shall be supplied with additional 
data and information requisite to a reasonable and careful 
investigation of the project and proposed improvements.
	(e)  The executive director or his designated agent shall 
file with the commission written suggestions for changes and 
improvements and shall furnish a copy of the suggestions to the 
board of the district.  If the commission finally approves or 
refuses to approve the project or the issuance of bonds for the 
improvements it shall make a full written report, file it in its 
office, and furnish a copy of the report to the board of the 
district.
	(f)  During the course of construction of the project and 
improvements, no substantial alterations shall be made in the plans 
and specifications without the approval of the executive director.  
The executive director or his designated agent has full authority 
to inspect the improvements at any time during construction to 
determine if the project is being constructed in accordance with 
approved plans and specifications.
	(g)  If the executive director finds that the project is not 
being constructed in accordance with the approved plans and 
specifications, the executive director immediately shall notify in 
writing by certified mail each member of the board of the district 
and its manager.  If, within 10 days after the notice is mailed, the 
board of the district does not take steps to insure that the project 
is being constructed in accordance with the approved plans and 
specifications, the executive director shall give written notice of 
that fact to the attorney general.
	(h)  After the attorney general receives the notice, he may 
bring an action for injunctive relief, or he may bring quo warranto 
proceedings against the directors.  Venue for either of these 
actions is exclusively in the district of Travis County.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.035, eff. 
Sept. 1, 1985.


	§ 12.083. DISTRICTS;  CREATION, INVESTIGATIONS AND 
BONDS.  (a) The commission succeeds to the duties and 
responsibilities of the Texas Water Rights Commission with regard 
to the creation of districts as defined by Section 50.001(1) of this 
code and to approve or disapprove the issuance of the bonds of all 
such districts.
	(b)  The executive director shall investigate and report on 
the organization and feasibility of all districts as defined by 
Section 50.001(1) of this code.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977.

SUBCHAPTER E. FEES


	§ 12.112. FEES:  EXEMPTIONS.  (a) The commission, the 
board, and the Parks and Wildlife Commission are exempted from 
payment of any filing, recording, or use fees required by this code.
	(b)  The board is exempt from payment of any other fees 
required by this code or any other statute relating to applications 
for water rights or amendments thereto or relating to water 
resources administration to the extent the board has not contracted 
for the sale of water under a water right on which such fees are 
based.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.036, eff. 
Sept. 1, 1985;  Acts 1993, 73rd Leg., ch. 647, § 4, eff. Aug. 30, 
1993.


	§ 12.113. DISPOSITION OF FEES, ETC.  (a) The commission 
shall immediately deposit in the State Treasury the fees and 
charges it collects.
	(b)  The commission shall deposit all costs collected under 
Subchapter G, Chapter 11 of this code in the State Treasury to the 
credit of the watermaster administration account, from which the 
commission shall pay all expenses necessary to efficiently 
administer and perform the duties described in Sections 11.325 
through 11.335 of this code.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.036, eff. 
Sept. 1, 1985;  Acts 1997, 75th Leg., ch. 333, § 4, eff. Sept. 1, 
1997.


	§ 12.114. DISPOSITION OF FEES PENDING DETERMINATION.  The 
commission shall hold all fees, except filing fees, which are paid 
with an application until the commission finally determines whether 
the application should be granted.  If the application is not 
granted, the commission shall return the fees to the applicant.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. 
Sept. 1, 1977;  Acts 1985, 69th Leg., ch. 795, § 1.036, eff. 
Sept. 1, 1985.