| (a) Dredging and construction of structures in, or
the discharge of dredged or fill material into, critical areas shall
comply with the policies in this section. In implementing this section,
cumulative and secondary adverse effects of these activities will
be considered.
(1) The policies in this section shall be applied in
a manner consistent with the goal of achieving no net loss of critical
area functions and values.
(2) Persons proposing development in critical areas
shall demonstrate that no practicable alternative with fewer adverse
effects is available.
(3) In evaluating practicable alternatives, the following
sequence shall be applied:
(A) Adverse effects on critical areas shall be avoided
to the greatest extent practicable.
(B) Unavoidable adverse effects shall be minimized
to the greatest extent practicable by limiting the degree or magnitude
of the activity and its implementation.
(C) Appropriate and practicable compensatory mitigation
shall be required to the greatest extent practicable for all adverse
effects that cannot be avoided or minimized.
(4) Compensatory mitigation includes restoring adversely
affected critical areas or replacing adversely affected critical areas
by creating new critical areas. Compensatory mitigation should be
undertaken, when practicable, in areas adjacent or contiguous to the
affected critical areas (on-site). If on-site compensatory mitigation
is not practicable, compensatory mitigation should be undertaken in
close physical proximity to the affected critical areas if practicable
and in the same watershed if possible (off-site). Compensatory mitigation
should also attempt to replace affected critical areas with critical
areas with characteristics identical to or closely approximating those
of the affected critical areas (in-kind). The preferred order of compensatory
mitigation is:
(A) on-site, in-kind;
(B) off-site, in-kind;
(C) on-site, out-of-kind; and
(D) off-site, out-of-kind.
(5) Mitigation banking is acceptable compensatory mitigation
if use of the mitigation bank has been approved by the agency authorizing
the development and mitigation credits are available for withdrawal.
Preservation through acquisition for public ownership of unique critical
areas or other ecologically important areas may be acceptable compensatory
mitigation in exceptional circumstances. Examples of this include
areas of high priority for preservation or restoration, areas whose
functions and values are difficult to replicate, or areas not adequately
protected by regulatory programs. Acquisition will normally be allowed
only in conjunction with preferred forms of compensatory mitigation.
(6) In determining compensatory mitigation requirements,
the impaired functions and values of the affected critical area shall
be replaced on a one-to-one ratio. Replacement of functions and values
on a one-to-one ratio may require restoration or replacement of the
physical area affected on a ratio higher than one-to-one. While no
net loss of critical area functions and values is the goal, it is
not required in individual cases where mitigation is not practicable
or would result in only inconsequential environmental benefits. It
is also important to recognize that there are circumstances where
the adverse effects of the activity are so significant that, even
if alternatives are not available, the activity may not be permitted
regardless of the compensatory mitigation proposed.
(7) Development in critical areas shall not be authorized
if significant degradation of critical areas will occur. Significant
degradation occurs if:
(A) the activity will jeopardize the continued existence
of species listed as endangered or threatened, or will result in likelihood
of the destruction or adverse modification of a habitat determined
to be a critical habitat under the Endangered Species Act, 16 United
States Code Annotated, §§1531 - 1544;
(B) the activity will cause or contribute, after consideration
of dilution and dispersion, to violation of any applicable surface
water quality standards established under §26.21 of this title
(relating to Policies for Discharge of Municipal and Industrial Wastewater
to Coastal Waters);
(C) the activity violates any applicable toxic effluent
standard or prohibition established under §26.21 of this title;
(D) the activity violates any requirement imposed to
protect a marine sanctuary designated under the Marine Protection,
Research, and Sanctuaries Act of 1972, 33 United States Code Annotated,
Chapter 27; or
(E) taking into account the nature and degree of all
identifiable adverse effects, including their persistence, permanence,
areal extent, and the degree to which these effects will have been
mitigated pursuant to subsections (c) and (d) of this section, the
activity will, individually or collectively, cause or contribute to
significant adverse effects on:
(i) human health and welfare, including effects on
water supplies, plankton, benthos, fish, shellfish, wildlife, and
consumption of fish and wildlife;
(ii) the life stages of aquatic life and other wildlife
dependent on aquatic ecosystems, including the transfer, concentration,
or spread of pollutants or their byproducts beyond the site, or their
introduction into an ecosystem, through biological, physical, or chemical
processes;
(iii) ecosystem diversity, productivity, and stability,
including loss of fish and wildlife habitat or loss of the capacity
of a coastal wetland to assimilate nutrients, purify water, or reduce
wave energy; or
(iv) generally accepted recreational, aesthetic or
economic values of the critical area which are of exceptional character
and importance.
(b) The TCEQ and the RRC shall comply with the policies
in this section when issuing certifications and adopting rules under
Texas Water Code, Chapter 26, and the Texas Natural Resources Code,
Chapter 91, governing certification of compliance with surface water
quality standards for federal actions and permits authorizing development
affecting critical areas; provided that activities exempted from the
requirement for a permit for the discharge of dredged or fill material,
described in Code of Federal Regulations, Title 33, §323.4 and/or
Code of Federal Regulations, Title 40, §232.3, including but
not limited to normal farming, silviculture, and ranching activities,
such as plowing, seeding, cultivating, minor drainage, and harvesting
for the production of food, fiber, and forest products, or upland
soil and water conservation practices, shall not be considered activities
for which a certification is required. The GLO and the SLB shall comply
with the policies in this section when approving oil, gas, or other
mineral lease plans of operation or granting surface leases, easements,
and permits and adopting rules under the Texas Natural Resources Code,
Chapters 32, 33 and 51 - 53, and Texas Water Code, Chapter 61, governing
development affecting critical areas on state submerged lands and
private submerged lands, and when issuing approvals and adopting rules
under Texas Natural Resources Code, Chapter 221, for mitigation banks
operated by subdivisions of the state.
(c) Agencies required to comply with this section will
coordinate with one another and with federal agencies when evaluating
alternatives, determining appropriate and practicable mitigation,
and assessing significant degradation. Those agencies' rules governing
authorizations for development in critical areas shall require a demonstration
that the requirements of subsection (a)(1) - (7) of this section have
been satisfied.
(d) For any dredging or construction of structures
in, or discharge of dredged or fill material into, critical areas
that is subject to the requirements of §26.15 of this title (relating
to Policy for Major Actions), data and information on the cumulative
and secondary adverse affects of the project need not be produced
or evaluated to comply with this section if such data and information
is produced and evaluated in compliance with §26.15(b) - (c)
of this title.
|
