| (a) Impoundments and diversion of state water within
200 stream miles of the coast, to commence from the mouth of the river
thence inland, shall comply with the policies in this section.
(1) The TCEQ shall administer the law so as to promote
the judicious use and maximum conservation and protection of the quality
of the environment and the natural resources of the state. It is the
public policy of the state to provide for the conservation and development
of the state's natural resources, including:
(A) the control, storage, preservation, and distribution
of the state's storm and floodwaters and the waters of its rivers
and streams for irrigation, power, and other useful purposes;
(B) the reclamation and irrigation of the state's
arid, semiarid, and other land needing irrigation;
(C) the reclamation and drainage of the state's overflowed
land and other land needing drainage;
(D) the conservation and development of its forest,
water, and hydroelectric power;
(E) the navigation of the state's inland and coastal
waters; and
(F) the maintenance of a proper ecological environment
of the bays and estuaries of Texas and the health of related living
marine resources.
(2) In this section, "beneficial inflows" means a salinity,
nutrient, and sediment loading regime adequate to maintain an ecologically
sound environment in the receiving bay and estuary system that is
necessary for the maintenance of productivity of economically important
and ecologically characteristic sport or commercial fish and shellfish
species and estuarine life upon which such fish and shellfish are
dependent.
(3) In its consideration of an application for a permit
to store, take, or divert water, the TCEQ shall assess the effects,
if any, of the issuance of the permit 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 TCEQ shall include in the permit, to the greatest extent practicable
when considering all public interests, those conditions considered
necessary to maintain beneficial inflows to any affected bay and estuary
system.
(4) For the purposes of making a determination under
paragraph (3) of this subsection, the TCEQ shall consider among other
factors:
(A) the need for periodic freshwater inflows to supply
nutrients and modify salinity to preserve the sound environment of
the bay or estuary, using any available information, including studies
and plans specified in and other studies considered by the TCEQ to
be reliable; together with existing circumstances, natural or otherwise,
that might prevent the conditions imposed from producing benefits;
(B) the ecology and productivity of the affected bay
and estuary system;
(C) the expected effects on the public welfare of not
including in the permit some or all of the conditions considered
necessary to maintain the beneficial inflows to the affected bay
or estuary;
(D) the quantity of water requested and the proposed
use of water by the applicant, as well as the needs of those who would
be served by the applicant;
(E) the expected effects on the public welfare of the
failure to issue all or part of the permit being considered; and
(F) for the purposes of this section, the declarations
as to preferences for competing uses of water as found in Texas Water
Code, §11.024 and §11.033, as well as the public policy
statement in paragraph (1) of this subsection.
(5) In its consideration of an application to store,
take, or divert water, the TCEQ shall consider the effect, if any,
of the issuance of the permit on existing instream uses and water
quality of the stream or river to which the application applies. The
TCEQ shall also consider the effect, if any, of the issuance of the
permit on fish and wildlife habitats.
(6) On receipt of an application for a permit to store,
take, or divert water, the TCEQ shall send a copy of the permit application
and any subsequent amendments to the TPWD. In making a final decision
on any application for a permit, the TCEQ, in addition to other information,
evidence, and testimony presented, shall consider all information,
evidence, or testimony presented by the TPWD and the TWDB.
(7) Permit conditions relating to beneficial inflows
to affected bays and estuaries and instream uses may be suspended
by the TCEQ if the TCEQ finds that an emergency exists and cannot
practically be resolved in other ways. Before the TCEQ suspends a
permit under this paragraph, it must give written notice to the TPWD
of the proposed suspension. The TCEQ shall give the TPWD an opportunity
to submit comments on the proposed suspension within 72 hours from
such time and the TCEQ shall consider those comments before issuing
its order imposing the suspension.
(8) In its consideration of an application for a permit
under this section, the TCEQ shall assess the effects, if any, of
the issuance of the permit on water quality in coastal waters. In
its consideration of an application for a permit to store, take, or
divert water in excess of 5,000 acre feet per year, the TCEQ shall
assess the effects, if any, on the issuance of the permit on fish
and wildlife habitats and may require the applicant to take reasonable
actions to mitigate adverse effects on such habitat. In determining
whether to require an applicant to mitigate adverse effects on a habitat,
the TCEQ may consider any net benefit to habitat produced by the project.
The TCEQ shall offset against any mitigation required by the United
States Fish and Wildlife Service pursuant to Code of Federal Regulations,
Title 33, §§320 - 330, any mitigation authorized by this
subchapter.
(9) Unappropriated water and other water of the state
stored in any facility acquired by and under the control of the TWDB
may be released without charge to relieve any emergency condition
arising from drought, severe water shortage, or other calamity, if
the TCEQ first determines the existence of the emergency and requests
the TWDB to release the water.
(10) Five percent of the annual firm yield of water
in any reservoir and associated works constructed with state financial
participation within 200 river miles of the coast, to commence from
the mouth of the river thence inland, is appropriated to the TPWD
for use to make releases to bays and estuaries and for instream uses,
and the TCEQ shall issue permits for this water to the TPWD under
procedures adopted by the TCEQ. This paragraph applies only to reservoirs
and associated works on which construction begins on or after September
1, 1985. This section does not limit or repeal any other authority
of or law relating to the TPWD or the TCEQ.
(11) The TWDB, in coordination with the TCEQ and TPWD,
shall identify ways to assist in providing flows to meet instream
needs, including protection of water quality, protection of terrestrial
or aquatic wildlife habitat, and bay and estuary inflow needs, in
the implementation of the Texas Water Bank, Texas Water Code, Chapter
15, Subchapter K. This may include, but not be limited to, the purchase
by the TPWD and/or the TWDB of water rights deposited in the Texas
Water Bank in order to provide for existing instream uses and beneficial
inflows to bays and estuaries if funds are available and such purchase
is not prohibited by law. The TCEQ shall facilitate the approval of
any necessary permit amendments to achieve this purpose.
(12) An applicant for a new or amended water right
permit shall submit a water conservation plan in accordance with 30
TAC §295.9 (relating to Water Conservation and Drought Contingency
Plans). The TCEQ shall consider the information contained in the water
conservation plan in determining whether any feasible alternative
to the proposed appropriation exists, whether the proposed amount
to be appropriated as measured at the point of diversion is reasonable
and necessary for the proposed use, the term and other conditions
of the water right and to ensure that reasonable diligence will be
used to avoid waste and achieve water conservation. Based upon its
review, the TCEQ may deny or grant, in whole or in part, the requested
appropriation.
(b) The TCEQ rules and authorizations under Texas Water
Code, Chapter 11, governing review and action on applications for
new permits or amendments proposing changes to existing permits for
diversions or impoundments of state water within 200 stream miles
of the coast, and TCEQ rules and approvals governing creation of districts
and issuance of district bonds for levee and flood control projects
within the coastal zone, shall comply with the policies in this section.
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