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TITLE 30ENVIRONMENTAL QUALITY
PART 1TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
CHAPTER 36SUSPENSION OR ADJUSTMENT OF WATER RIGHTS DURING DROUGHT OR EMERGENCY WATER SHORTAGE
RULE §36.5Conditions for Issuance of Suspension or Adjustment Order

(a) The executive director may issue a Suspension or Adjustment Order or modify or extend an existing order under §36.4 of this title (relating to Suspension or Adjustment Order) if the following conditions have been met:

  (1) at the time of issuance of the order, all or part of the river basin is in a drought, or an emergency shortage of water exists;

  (2) senior water rights are unable to divert the water they need or store inflows that are authorized under a water right;

  (3) one or more senior water right holders who will benefit from the order can beneficially use, as defined in Texas Water Code, §11.002(4), the water they will be able to divert or use under the order; and

  (4) suspending or adjusting junior water rights would result in conditions under which the senior water right holder may divert water or impound inflows under its water right for a beneficial use.

(b) The executive director shall ensure that the order:

  (1) maximizes the beneficial use of water;

  (2) minimizes the impact on water rights holders;

  (3) prevents the waste of water;

  (4) considers the efforts of the affected water right holders to develop and implement the water conservation plans and drought contingency plans required by Texas Water Code, Chapter 11;

  (5) to the greatest extent practicable, conforms to the order of preferences established by Texas Water Code, §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 executive director may determine not to suspend a junior water right based on public health, safety, and welfare concerns. If the executive director decides not to suspend a junior water right based on public health, safety, and welfare concerns, the executive director may:

  (1) require that the junior water right holder provide to the executive director, within 14 days of the issuance of the executive director's order, information demonstrating that it has made reasonable efforts to obtain alternative water sources;

  (2) require that the junior water right holder demonstrate to the maximum extent practicable that reasonable efforts have been made to conserve water by providing its water use data to the executive director every 14 days. The water use data shall indicate the amount of and place of use of the water used by the water right holder on a daily basis and be sufficient to provide a historical context for the water right holder's use of surface water; and

  (3) require that the junior water right holder provide information on what it has done to identify long-term additional or alternative water sources within 30 days of the issuance of the executive director's order.

(d) If the executive director decides to require the information in subsection (c)(1) - (3) of this section, and the junior water right holder does not provide the information by the applicable deadline, or the executive director finds that the information provided does not demonstrate reasonable efforts to comply to the maximum extent practicable with subsection (c)(1), (2), or (3) of this section, the executive director may use existing regulatory authority to ensure the junior water right holder's efforts to secure alternative sources of water and conserve water, including, but not limited to, adjusting the diversion rate downward or ordering a full suspension.


Source Note: The provisions of this §36.5 adopted to be effective May 3, 2012, 37 TexReg 3096

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