Section 297.17 - Emergency Authorization (Texas Water Code, Section11.139)(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.30 Tex. Admin. Code § 297.17
The provisions of this §297.17 adopted to be effective May 29, 1986, 11 TexReg 2330; amended to be effective February 24, 1999, 24 TexReg 1162