(a) In its consideration of an application for a new or amended
water right to store, take, or divert water, the commission shall assess the
effects, if any, of the granting of the application on the bays and estuaries
of Texas. For permits issued within an area that is 200 river miles of the
coast, to commence from the mouth of the river thence inland, the commission
shall include in the water right, to the extent practicable when considering
all public interests, those conditions considered necessary to maintain beneficial
inflows to any affected bay and estuary system.
(b) For purposes of making a determination under this section,
the commission shall consider:
(1) the need for periodic freshwater inflows to supply nutrients,
sediments, and modify salinity to preserve the sound environment of the bay
and estuary, using any available information, including studies and plans
specified in Texas Water Code §11.1491 and other studies considered by
the commission to be reliable; together with existing circumstances, natural
or otherwise, that may prevent the conditions imposed from producing benefits;
(2) the ecology and productivity of the affected bay and
estuary system;
(3) the expected effects on the public welfare of not
including in the water right some or all of the conditions considered necessary
to maintain the beneficial inflows to the affected bay or estuary system;
(4) the quantity of water requested and the proposed use
of the water by the applicant, as well as the needs of those who would be
served by the applicant;
(5) the expected effects on the public welfare of the
failure to issue all or part of the water right being considered; and
(6) the declarations as to preferences for competing uses
of water as found in Texas Water Code §§11.023 and 11.024 as well
as the policy statement in Texas Water Code §11.003.
(c) At least five percent (5%) of the annual firm yield of
water in any reservoir or associated works on which construction began on
or after September 1, 1985, and which is constructed with state financial
participation and is located within 200 river miles from the coast, to commence
from the mouth of the river thence inland, is appropriated to the Texas Parks
and Wildlife Department for use to make releases to bays and estuaries and
instream uses. This five percent figure may not be indicative of the full
instream needs or the freshwater inflow needs of the affected bay or estuary
system and the commission may impose additional water right conditions to
provide a greater amount of water for this purpose, if necessary and appropriate
after considering all the factors provided by subsection (b) of this section.
(d) Pursuant to Texas Water Code, §16.195, unallocated
water and other water of the state permitted to the Texas Water Development
Board and stored in any facility acquired by and under the control of the
Texas Water Development Board may be released without charge to relieve any
emergency condition arising from drought, severe water shortage, or other
calamity including, but not limited to, insufficient flows for existing instream
uses and beneficial inflows for the maintenance of bays and estuaries, if
the commission first determines the existence of the emergency and requests
the Texas Water Development Board to release the water. Such release may not
impair a contractual obligation of the Texas Water Development Board. The
Texas Parks and Wildlife Department may also petition the commission to request
such release for the maintenance of existing instream uses and beneficial
inflows to bays and estuaries.
(e) The assessment of and conditions upon a proposed amendment
to a water right under subsections (a) and (b) of this section shall be limited
by §297.45(b) of this title (relating to "No Injury" Rule) as provided
by Texas Water Code §11.122(b).
|