(a) On motion of executive director.
(1) If the executive director determines to file a
petition to amend a water right, notice of the determination stating
the grounds therefore and a copy of a proposed amendment draft shall
be personally served on or mailed by certified mail to the water right
holder at the last address of record with the commission.
(2) This notice shall be given at least 15 days before
a petition is filed with the commission.
(b) Requiring mailed and published notice. Unless authorized
by subsection (c) of this section, applications for amendments to
permits, certified filings, or certificates of adjudication, including,
but not limited to, those of the following nature, must comply with
requirements for a water use permit, including the notice requirements
in the Texas Water Code, §11.132, and this subchapter:
(1) to change the place of use when other water users
of state water may be affected;
(2) to increase an appropriation and/or rate or period
of diversion;
(3) to change the purpose of use when the change would
authorize a greater consumption of state water or would materially
alter the period of time when state water could be diverted;
(4) to add points of diversion which would result in
a greater rate of diversion or impair other water rights;
(5) to remove or modify the requirements or conditions
of a water right which were included for the protection of other water
rights;
(6) to change a point of diversion which may impair
other water rights;
(7) to relocate or enlarge a reservoir;
(8) to extend the period of duration of any term permit;
(9) to remove the authorization for storage in a reservoir
that has not been constructed if the application requests an increase
in the amount of water to be diverted or the diversion rate based
on an evaporation credit; or
(10) to change the use or purpose of use of a water
right authorizing storage in an on-channel storage reservoir that
has lost storage because of sedimentation from storage by diversion
to storage as part of an aquifer storage and recovery project for
later retrieval and use as authorized by the original water right.
(c) Not requiring mailed and published notice.
(1) Only an application to amend an existing permit,
certified filing, or certificate of adjudication which does not contemplate
an additional consumptive use of state water or an increased rate
or period of diversion and which, in the judgment of the commission,
has no potential for harming any other existing water right, is subject
to amendment by the commission without notice other than that provided
to the record holder. Once the technical review of an application
is complete and the technical memoranda have been filed with the chief
clerk of the commission, the commission shall consider whether additional
notice is required based on the particular facts of the application.
(2) Applications for the following do not require notice,
except to the record holder, and do not require technical review:
(A) to add a purpose of use that does not substantially
alter:
(i) the nature of the water right from a water right
authorizing only non-consumptive use to a water right authorizing
consumptive use; or
(ii) a pattern of use that is explicitly authorized
by or required by the original water right;
(B) to add a place of use located in the same river
basin as the place of use authorized in the original water right;
(C) to change the point of diversion provided that:
(i) the authorized rate of diversion is not increased;
(ii) the original point of diversion and the new point
of diversion are located on the same contiguous tract of land;
(iii) there are no other water right holders with points
of diversion located on the same watercourse between the original
point of diversion and the new point of diversion;
(iv) there are no streamflow gages located on the watercourse
between the original point of diversion and the new point of diversion
that are referenced in the original water right or in another water
right authorizing a diversion from the same watercourse; and
(v) there are no tributary watercourses that enter
the watercourse that is the source of supply located between the original
point of diversion and the new point of diversion.
(3) Applications of the following descriptions may
not require additional notice:
(A) to cure ambiguities or ineffective provisions in
a water right;
(B) to reduce an appropriation or rate of diversion;
(C) to change the point of diversion, except for applications
under paragraph (2)(C) of this subsection, when the existing rate
of diversion will not be increased and there are no interjacent water
right holders of record between the originally authorized point of
diversion and the new one, or when interjacent water users agree in
writing to the amendment. If written agreements are not obtained,
interjacent water right holders will be notified of the proposed change
by certified mail and given two weeks within which to protest. If
no protest is received, further notice will not be required;
(D) to add additional points of diversion, except for
applications under paragraph (2)(C) of this subsection, where the
existing rate of diversion will not be increased and there are no
water right holders of record between any originally authorized point
of diversion and the new one to be added, or when interjacent water
right holders agree in writing to the amendment. If written agreements
are not obtained, interjacent water users will be notified of the
proposed change by certified mail and given two weeks within which
to protest. If no protest is received, further notice will not be
required;
(E) to increase the rate or period for diversion from
a storage reservoir; and
(F) to remove the authorization for storage in a reservoir
that has not been constructed, if the water diverted under the right
will be stored in an aquifer storage and recovery project for later
retrieval and use as authorized by the original water right, provided
that:
(i) the application does not request an increase in
the diversion amount or rate; and
(ii) the executive director determines after an administrative
review that the application will not cause a negative impact on other
water rights or the environment that is greater than the effect the
original permit would have had were the permit rights exercised to
the full extent of the original permit.
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Source Note: The provisions of this §295.158 adopted to be effective May 28, 1986, 11 TexReg 2326; amended to be effective May 20, 1997, 22 TexReg 4250; amended to be effective December 31, 2009, 34 TexReg 9454; amended to be effective May 28, 2020, 45 TexReg 3448 |