RS 961 - Cooperative endeavor agreements; withdrawal of surface water; intent
A. As provided by this Chapter and except as otherwise provided by law, a person or entity may enter into a cooperative endeavor agreement to withdraw running surface water as described in this Chapter. The cooperative endeavor agreement shall prohibit the resale of withdrawn running surface water for a price greater than provided for in the agreement; however, a person or entity may receive compensation for the transportation, manufacturing, or processing of withdrawn running surface water. Unless otherwise provided by law, all cooperative endeavor agreements to withdraw running surface water, and any assignment of such agreement, shall be approved by the secretary as provided in this Chapter. No provision contained in this Chapter should be construed as a requirement for any person or entity to enter into any cooperative endeavor agreement to withdraw running surface water. This Chapter shall have no effect on the rights provided for in Civil Code Articles 657 and 658 or any rights held by riparian owners in accordance with the laws of this state. It is also the intent of the legislature that should any portion of this Chapter be found to be unconstitutional that the remaining parts shall continue in force and effect.
B. No agency or subdivision of the state otherwise authorized to enter into a cooperative endeavor agreement to withdraw running surface water, or assignment of such shall do so unless the agreement is in writing, provides for fair market value to the state, is in the public interest, and is contained on a uniform form developed and prescribed by the State Mineral and Energy Board and approved by the attorney general. Except when water is withdrawn from bodies of water managed by the Department of Wildlife and Fisheries and determined by the office of fisheries to be negatively impacted by invasive aquatic vegetation, fair market value to the state shall include but not be limited to the economic development, employment, and increased tax revenues created by the activities associated with the withdrawal of running surface water. No such cooperative endeavor agreement to withdraw running surface water shall be valid unless and until such agreement is approved by the secretary following the submission of an application for approval, which the secretary shall develop and prescribe. The secretary shall conduct the evaluation provided for in Subsection D of this Section and take action on the application within sixty days of the application being deemed complete. If the secretary denies the application, the secretary shall provide written reasons for the denial at the time of the denial.
C. Unless otherwise provided by law, the secretary is authorized to enter into any cooperative endeavor agreement to withdraw running surface water, provided that any such agreement complies with the prohibition against gratuitous donation of state property by ensuring that the state receives fair market value for any water removed, and the substance of the agreement is contained within a written cooperative endeavor agreement as provided for in Article VII, Section 14 of the Constitution of Louisiana.
D. The secretary shall evaluate each application for a cooperative endeavor agreement to withdraw running surface water and each such cooperative endeavor that he may enter to ensure that each is in the public interest. The secretary shall ensure the proposed agreement is based on best management practices and sound science, and is consistent with the required balancing of environmental and ecological impacts with the economic and social benefits found in Article IX, Section 1 of the Constitution of Louisiana. In his evaluation, the secretary shall also ensure that all cooperative endeavor agreements to withdraw running surface water, or assignments of such, adequately consider the potential and real effects of such contracted activity on the sustainability of the water body and on navigation. Any assignment of any such cooperative endeavor agreement to withdraw running surface water may be approved by the secretary in the same manner as an agreement as provided in this Section, unless otherwise provided for by law.
E.(1) A cooperative endeavor agreement to withdraw running surface water, or an assignment of such, entered into pursuant to the provisions of this Chapter shall have an initial term not to exceed two years. Existing agreements may be renewed in two-year increments.
(2) A person or entity who has entered into a cooperative endeavor agreement to withdraw running surface waters or has obtained an assignment of such, may terminate such agreement after December 31, 2022. In order to be effective, the person or entity seeking to terminate shall provide written notice by certified mail to the secretary at least thirty days prior to termination.
F. The secretary may act to protect the natural resources of the state by reducing any withdrawal of water from the running surface waters of the state otherwise agreed to be withdrawn pursuant to an agreement entered into pursuant to this Chapter, or make other conditions, including the suspension or termination of such withdrawal of water when such an action is required to protect the resource and to maintain sustainability and environmental and ecological balance. If the secretary acts to reduce or suspend the volume of water agreed to be withdrawn, he shall do so in such a manner that the total necessary reductions are proportionally borne by all users of the running surface waters, subject to this Chapter, in the area for which a reduction is required. Prior to approval, the secretary shall ensure that each contract or agreement or assignment thereof that involved the withdrawal of the running surface waters of the state provides for the secretary's authority, without liability for damages, in this regard.
G.(1) The secretary, in deciding whether to approve or require changes in an application for a cooperative endeavor agreement to withdraw running surface water, or assignment of such, shall consider the various existing and potential users of the resource and shall give appropriate consideration and priority to the following users or uses in the following order of priority:
(a) Human consumption by means of a public water system or a private water system that provides domestic potable water service.
(b) Agricultural uses that provide sustenance to animals or irrigation to plants.
(c) Any commercial purpose or other industrial or mining activity.
(2) The secretary shall also consider the impact of any proposed contract, agreement, assignment, or use on resource planning. By way of illustration but not limitation, these would include any potential project or use that impacts:
(a) Stream or water flow energy.
(b) Sediment load and distribution.
(c) Navigation.
(d) Aquatic life.
(e) Other vegetation or wildlife.
(3) The management of cooperative endeavor agreements to withdraw running surface water shall be consistent with the comprehensive master plan for coastal restoration and protection as approved by the Coastal Protection and Restoration Authority Board and the legislature.
H. Approval of an application for a cooperative endeavor agreement to withdraw running surface water or assignment of such pursuant to this Chapter does not obviate the need for other permits or authorizations required by law for any proposed activity.
I. Any cooperative endeavor agreement approved or entered into by the secretary pursuant to the Section which provides for the withdrawal of running surface water for use outside the boundaries of the state of Louisiana shall require the approval of the House Committee on Natural Resources and Environment and the Senate Committee on Natural Resources. In determining whether to approve such agreement, the committees shall consider the reasonableness of the withdrawal, whether the withdrawal is contrary to the conservation and uses of the running surface water, and whether the withdrawal is detrimental to the environment or the public welfare.
J. The state shall be reimbursed at fair market value for all use or withdrawal of running surface water from bodies of water managed by the Department of Wildlife and Fisheries and determined by the office of fisheries to be negatively impacted by invasive aquatic vegetation. Fair market value as used in this Subsection shall be at a rate of not more than fifteen cents per thousand gallons, and shall not include the economic development, employment, and increased tax revenues created by the activities associated with the withdrawal of running surface water.
NOTE: Subsection K eff. until July 1, 2022. See Acts 2021, No. 114.
K. All monies collected by the state pursuant to this Chapter as a result of the use or withdrawal of surface water shall be deposited into the Aquatic Plant Control Fund as established in R.S. 56:10.1, and shall be used for the treatment of aquatic weed, preferably on the body of water from which revenues were generated.
NOTE: Subsection K as amended by Acts 2021, No. 114, eff. July 1, 2022.
K. All monies collected by the state pursuant to this Chapter as a result of the use or withdrawal of surface water shall be deposited into the Aquatic Plant Control Dedicated Fund Account as established in R.S. 56:10.1, and shall be used for the treatment of aquatic weed, preferably on the body of water from which revenues were generated.
Acts 2010, No. 955, §1, eff. July 2, 2010; Acts 2012, No. 261, §1; Acts 2014, No. 285, §1; Acts 2014, No. 556, §1; Acts 2016, No. 248, §1; Acts 2016, No. 430, §2; Acts 2018, No. 500, §1; Acts 2020, No. 66, §1; Acts 2021, No. 114, §18, eff. July 1, 2022.