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CHAPTER 359ijgpwd
WATER BANKINGijgpwd
Readopted May 21, 2003 pursuant to Government Code §2001.039ijgpwd
Amended effective June 10, 2003ijgpwd

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§359.1Purposeijgpwd
§359.2Definitions. ijgpwd
§359.3 Board Acquisition Of Water Rightsijgpwd
§359.4Other Applicable Lawijgpwd
§359.5Procedures for Depositijgpwd
§359.6Bank Reviewijgpwd
§359.7Appeal of Findingsijgpwd
§359.8Deposits, Transfers, Cancellation Protection, and Withdrawalsijgpwd
§359.9Registry of Buyers ijgpwd
§359.10Registry of Sellers ijgpwd
§359.11Information ijgpwd
§359.12 Negotiation of Terms ijgpwd
§359.13Regional Banks ijgpwd
§359.14Fees ijgpwd
§359.15. Texas Water Trust.ijgpwd
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WATER BANKINGijgpwd Texas Administrative Code §§359.1-359.15ijgpwd ijgpwd §359.1. Purpose. These sections are proposed to establish and administer the Texas Water Bank in accordance with the Texas Water Code, Chapter 15, Subchapter K. The board shall administer the water bank to facilitate water transactions to provide sources of adequate water supplies for use within the State of Texas. The adoption of these rules is not intended to prevent any person from selling or leasing water or water rights by transactions outside the purview of the water bank or duly-established regional water banks, where such transactions are otherwise allowed by law.ijgpwd ijgpwd Adopted effective May 13, 1994 Amended effective February 4, 1998ijgpwd ijgpwd §359.2. Definitions. The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:ijgpwd ijgpwd (1) Administrator - The Executive Administrator of the Texas Water Development Board or designated representative(s).ijgpwd ijgpwd (2) Board - The Texas Water Development Board.ijgpwd ijgpwd (3) Bank - The Texas Water Bank, including regional banks established pursuant to this Subchapter.ijgpwd ijgpwd (4) Commission - The Texas Commission on Environmental Quality.ijgpwd ijgpwd (5) Conserved water - That amount of water saved by a holder of an existing permit, certified filing, or certificate of adjudication through practices, techniques, and technologies that would otherwise be irretrievably lost to all consumptive beneficial uses arising from storage, transportation, distribution, or application. Additionally, that amount of ground water made available for alternative or future uses through practices, techniques, and technologies that reduce the consumption of ground water, reduce the loss or waste of ground water, improve the efficiency in use of ground water, or increase the availability of ground water through recycling or reuse.ijgpwd ijgpwd (6) Department - the Texas Parks and Wildlife Department.ijgpwd ijgpwd (7) Deposit - the authorized placement of a water right or the right to use water in the bank for transfer.ijgpwd ijgpwd (8) Depositor - a person who deposits or has on deposit a water right in the bank.ijgpwd ijgpwd ijgpwd (9) Lease - to convey by contract the right to use water for a specified time period in accordance with the authorized right and other applicable law.ijgpwd ijgpwd (10) Person - includes, but is not limited to, any individual, corporation, organization, government, or governmental subdivision or agency, including the board, business trust, estate, trust, partnership, association, and any other legal entity.ijgpwd ijgpwd (11) Political subdivision - a state agency, a county, city, or other body politic or corporate of the state, including any district or authority created under the Texas Constitution, Article III, Section 52 or Article XVI, Section 59, and including any interstate compact commission to which the state is a party and any nonprofit water supply corporation created and operating under Acts of the 43rd Legislature, Chapter 76, 1st Called Session, 1933 (Texas Civil Statutes, Article 1434a).ijgpwd ijgpwd (12) Transfer - the conveyance of a water right or the right to use water under a water right in any of the following manners:ijgpwd (A)the conveyance of legal title to a water right; orijgpwd (B) a contract or option contract to allow use of a water right.ijgpwd ijgpwd (13) Water right - a right acquired or authorized under the laws of this state to impound, divert, or use state water, underground water, or water from any source to the extent authorized by law.ijgpwd ijgpwd Adopted effective May 13, 1994 Amended effective June 10, 2003 ijgpwd ijgpwd §359.3. Board Acquisition Of Water and Water Rights. The board may purchase, lease, hold, accept as a gift, and transfer water, water rights or the right to use water as necessary to operate the bank and facilitate the transfer of water, water rights or the right to use water from the bank for future beneficial use in Texas, including accepting and holding donations of water rights to meet instream, water quality, fish and wildlife habitat, or bay and estuary inflow needs in accordance with state law.ijgpwd ijgpwd Adopted effective May 13, 1994 Amended effective November 9, 1999ijgpwd ijgpwd §359.4. Other Applicable Law. Unless otherwise specified by Texas Water Code, Chapter 15, Subchapter K, transfers through the bank do not eliminate the requirement to comply with the provisions of Texas Water Code, Chapter 11 and other applicable law.ijgpwd ijgpwd Adopted effective May 13, 1994 ijgpwd ijgpwd §359.5. Procedures for Deposit. A potential depositor shall file a completed application for deposit with the administrator on forms or in a format provided by the administrator and provide such information as the administrator may require to evaluate the proposed application for deposit. The administrator shall notify the potential depositor within 30 calendar days of receipt of the application for deposit if additional information is needed to complete the application. The date of deposit is the date of receipt of a completed application for deposit. Within 30 calendar days following the receipt of a completed application for deposit, the administrator shall notify the executive director of the commission and depositor of the acceptance or refusal of the deposit.ijgpwd ijgpwd Adopted effective May 13, 1994 ijgpwd ijgpwd ijgpwd §359.6. Bank Review. The administrator may withdraw a deposit where the administrator finds the deposit to be:ijgpwd (1)representative of a water right, or portion thereof, that is not quantifiable;ijgpwd (2) representative of a water right, or portion thereof, where a petition or other formal action has been filed with the commission for the cancellation or forfeiture of the water right before the date of deposit; or,ijgpwd (3) contrary, for any reason, to the purposes of the Texas Water Code, Chapter 15, Subchapter K, or these rules, or other provisions of the Water Code or applicable law.ijgpwd ijgpwd Adopted effective May 13, 1994 ijgpwd ijgpwd §359.7. Appeal of Findings. Decisions of the administrator under §§359.5, 359.6, and 359.8 of this title (relating to Procedures for Deposit, Bank Review, and Deposits, Transfers, Cancellation Protection, and Withdrawals) may be appealed to the board by filing notice with the administrator. The administrator shall bring such appeals before the board at the earliest practicable board meeting for consideration, and notify the appellant, not less than 14 calendar days before the meeting, of the date, time, and place of the board meeting. Appeals under this section shall not be considered contested hearings under the Texas Administrative Procedures and Texas Register Act. The appellant and administrator may present written material to the board, in advance of the date of board consideration, with copies of such written material provided to the other party at least three days prior to the board meeting. The appellant and administrator may present brief oral remarks to the board after which the board shall decide on disposition of the appeal.ijgpwd ijgpwd Adopted effective May 13, 1994 ijgpwd ijgpwd §359.8. Deposits, Studies, Transfers, Cancellation Protection, and Withdrawals.ijgpwd (a)A water right or portion thereof may be deposited in the bank for an initial term of up to 10 years, unless otherwise held in the Texas Water Trust described in §359.15 of this title (relating to Texas Water Trust), during which time the water right or portion of the water right deposited is exempt from cancellation by the commission under the terms of Texas Water Code, Chapter 11, Subchapter E, as provided by Texas Water Code, §15.704. The water right or that portion of the water right deposited is exempt from cancellation under this subsection only once, even if it has been transferred or redeposited. The water right or that portion of the water right which is on deposit remains on deposit until it is withdrawn.ijgpwd (b)The administrator may accept deposits of water rights, including conserved water, into the bank. The administrator, acting within the purposes of the Texas Water Code, Chapter 15, Subchapter K, may also take any appropriate action to facilitate water transactions both within and external to the operations of the water bank.ijgpwd (c)The water right or that portion of a water right that has been transferred while on deposit in the bank is exempt from cancellation by the commission under the terms of the Texas Water Code, Chapter 11, Subchapter E, for a period of 10 years following commission approval of any necessary actions relating to the transfer of that water right.ijgpwd ijgpwd (d)The depositor must notify the administrator within 30 calendar days of the date a contract to transfer a water right or portion thereof is signed.ijgpwd (1)For transfers requiring regulatory approval, transfers are not complete until all necessary regulatory approvals are obtained. The depositor must notify the administrator in writing within 30 calendar days of the date of receipt of final regulatory approvals. The date of final regulatory approvals is the effective date of transfer.ijgpwd (2) For transfers not requiring regulatory approval, transfers are not complete until the terms and conditions of the contract have been fulfilled. In these cases, the depositor must notify the administrator in writing within 30 calendar days of the contract closure. The date the contract is closed is the effective date of transfer.ijgpwd (e)That portion of a water right or the right to use water that has been deposited in the bank may be withdrawn upon the depositor's completion of a withdrawal form, or acceptable substitute, and its submission to the administrator. A copy of this form, or acceptable substitute, must be submitted by the withdrawing depositor to the executive director of the commission at the same time it is submitted to the administrator. The withdrawal is effective upon the date of signature by the administrator on the withdrawal form or 30 days after the submission of the withdrawal form, or acceptable substitute, whichever occurs earlier. A water right may be withdrawn by the administrator under §359.6 of this title (relating to Bank Review). ijgpwd (f)A water right may be used as authorized by law while on deposit in the bank. The depositor must notify the administrator of any actions or conditions that would affect the transferability of the deposited right.ijgpwd (g)A water right transferred while on deposit in the bank may remain in the bank.ijgpwd (h) With the approval of the board, the administrator may enter into contracts with persons to pay for water conservation feasibility studies, or the preparation of plans and specifications relating to water conservation efforts, or studies to estimate the amount of water that would be saved through the implementation of water conservation efforts. ijgpwd ijgpwd Adopted effective May 13, 1994 Amended effective November 9, 1999ijgpwd ijgpwd ijgpwd §359.9. Registry of Buyers. Persons who are potential buyers of water rights or the right to use water may request to be listed by the administrator in a registry at the bank. The request for registry listing shall be in a form or format provided by the administrator, and shall include all information the administrator deems necessary to prepare the registry of buyers.ijgpwd ijgpwd Adopted effective May 13, 1994 Amended effective November 9, 1999ijgpwd ijgpwd §359.10. Registry of Sellers. Persons who wish to disclose the availability of a water right or the right to use water or portion thereof for transfer, but do not wish to deposit the right in the bank, may request to be listed by the administrator in a registry at the bank. The request shall be in the format of a request for deposit and shall include all information the administrator deems necessary to prepare the registry of sellers. Any person who has listed a water right or the right to use water for sale in the registry shall notify the administrator within 30 calendar days of the date a contract to transfer a water right or the right to use water or portion thereof is signed.ijgpwd ijgpwd Adopted effective May 13, 1994 Amended effective November 9, 1999ijgpwd ijgpwd ijgpwd §359.11. Information. In response to requests, the administrator shall provide information available from the bank, unless such information is required to be withheld under the Texas Open Records Act. The bank may act as a clearinghouse for water marketing information, including water availability, pricing of water transactions, environmental considerations, and potential buyers and sellers of water rights. The administrator may provide technical assistance as possible, to potential depositors, depositors, or potential buyers, concerning water conservation and may prepare and publish a manual on structuring water transactions.ijgpwd ijgpwd Adopted effective May 13, 1994 Amended effective February 4, 1998 ijgpwd ijgpwd §359.12. Negotiation of Terms. At the request of both the prospective buyer and depositor, the administrator may assist in the negotiation of terms associated with a proposed transfer.ijgpwd ijgpwd Adopted effective May 13, 1994 ijgpwd ijgpwd §359.13. Regional Banks. ijgpwd (a)The board may establish regional water banks, as necessary, to fulfill the requirements of the Texas Water Code, Chapter 15, Subchapter K. The board, by contract or agreement, may designate state agencies, political subdivisions, or other entities or persons it may deem appropriate to act as regional banks. Regional banks shall utilize the same procedures and meet the same requirements that are specified by this chapter, unless otherwise specifically authorized by the board. Regional banks shall report all activities to the administrator in a manner and frequency specified by the administrator. Fees specified in §359.14 of this title (relating to Fees) shall be collected by the regional bank, in accordance with the contract or agreement executed with the board. In evaluating the designation of and necessity for regional banks, the board may consider the regional bank's proposed rules and procedures for the following: ijgpwd (1)determining the method of allocation among competing buyers to lease or purchase water rights; ijgpwd (2)determining the method of allocation among the depositors for reimbursement; determining the fees and their allotment under the Texas Water Code, §15.705; ijgpwd (3) method of notification of the board, commission, and department of regional bank activities; and ijgpwd (4) such other factors as are deemed appropriate by the board.ijgpwd (b)Deposits into a duly authorized regional bank shall enjoy the same protection and limitations as deposits made into the bank established by these rules. The administrator may periodically review a regional bank for its performance and continuing necessity. The board may dissolve any regional bank which it has established under this section. ijgpwd ijgpwd Adopted effective May 13, 1994 ijgpwd ijgpwd §359.14. Fees. ijgpwd ijgpwd (a) The executive administrator shall develop and implement, with board approval, a fee to be paid either upon deposit of a water right or right to use water into the bank, upon transfer of the water right or right to use water or portion thereof while on deposit in the bank, or upon both such occurrences. Such fee shall not exceed 1.0% of the value placed upon the water right or right to use water by the depositor upon deposit into the bank, and 1.0% of the value of the water right or right to use water transferred while on deposit in the water bank. Fees shall be due within 60 days of deposit of the water right or right to use water into the bank, and within 60 days of transfer of such rights. The value of the water right or right to use water shall be calculated upon deposit into the bank as the value placed on the water right or right to use water by the depositor. The value of the water right or right to use water shall be calculated upon transfer as the value of the water right sale or total value of any contract or contracts to use the water.ijgpwd (b) Fees associated with deposits to or transfer from the Texas Water Trust of water rights or rights to use water are waived.ijgpwd (c) As necessary, the executive administrator shall obtain board approval of the fee schedule. The executive administrator shall provide notice in the Texas Register 30 days before board action considering approval of such fee schedule, and shall provide copies of the proposed fee schedule upon request. In approving such fee schedule, the board shall consider the expenses of operating the bank.ijgpwd ijgpwd Adopted effective November 9, 1999Amended effective June 10, 2003ijgpwd ijgpwd §359.15. Texas Water Trust.ijgpwd (a)The Texas Water Trust is established within the water bank to hold water rights dedicated to environmental needs, including instream flows, water quality, fish and wildlife habitat, or bay and estuary inflows.ijgpwd (b)No water right shall be placed into the Texas Water Trust without the review and approval of the commission after appropriate consultation with the department and board.ijgpwd (c)A water right shall be held in trust under this section for the term specified by the commission in its approval under subsection (b) of this section or, if the commission does not specify a term, for the term agreed upon between the administrator and the depositor.ijgpwd ijgpwd Adopted effective February 4, 1998 ijgpwd ijgpwd

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Chapter 359 - Water Banking.rarijgpwd
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