(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.
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