| (a) Except as provided by Texas Water Code (TWC), §11.1381,
and §297.19 of this title (relating to Term Permit under Texas
Water Code, §11.1381), an application for a new or increased
appropriation will be denied unless there is a sufficient amount of
unappropriated water available for a sufficient amount of the time
to make the proposed project viable and ensure the beneficial use
of water without waste.
(b) A new water right may be conditioned as appropriate
to protect any applicable environmental flow standards as described
in Chapter 298 of this title (relating to Environmental Flow Standards
for Surface Water), and, if applicable, instream uses, water quality,
aquatic and wildlife habitat, and freshwater inflows to bays and estuaries
as provided by TWC, §§11.147, 11.150, 11.152, and 16.059.
(c) For the approval of an application for a direct
diversion from a stream without sufficient on or off channel water
storage facilities for irrigation, approximately 75% of the water
requested must be available approximately 75% of the time when distributed
on a monthly basis and based upon the available historic stream flow
record. Lower availability percentages may be acceptable if the applicant
can demonstrate that a long-term, reliable, alternative source or
sources of water of sufficient quantity and quality are economically
available to the applicant to make the proposed project viable and
ensure the beneficial use of state water without waste.
(d) Projects that are not required to be based upon
the continuous availability of historic, normal stream flow include,
but are not limited to: conjunctive ground and surface water management
projects; diversions or impoundments at times of above-normal stream
flow (e.g., "scalping" operations) for seasonal or supplemental use;
a system operation in conjunction with other water rights; non-consumptive
instream uses except for instream flows dedicated to environmental
needs or inflows to the state's bay and estuary systems, pursuant
to TWC, §11.0237(a); or other similar type projects. The required
availability of unappropriated water for these special type projects
shall be determined on a case-by-case basis based upon whether the
proposed project can be viable for the intended purposes and the water
will be beneficially used without waste.
(e) New appropriations of water for recharge into an
aquifer underlying this state, including aquifer recharge projects
as defined by TWC, §27.201 or for storage in an aquifer storage
and recovery project before the water is recovered for a beneficial
use may be for water that is not continuously available. Water availability
for the full amount of water requested for these types of projects
must, at a minimum, be available at least one year in the period of
record based on the commission's water availability model for the
applicable river basin, and the proposed project must be viable for
the intended purposes and the water must be beneficially used without
waste.
(f) New appropriations of water based on an increase
in the amount of water diverted or the rate of diversion resulting
from an evaporation credit under TWC, §11.158(c) may be for water
that is not continuously available, as defined in subsection (e) of
this section. Water availability for projects under this subsection
that request an increase in the amount of water diverted or the rate
of diversion from an on-channel reservoir that has not been constructed
shall be based on the evaporation calculations that were used in developing
the terms of the water right for which the amendment is sought and
cannot exceed the maximum annual modeled evaporation as determined
in the commission's water availability model for the applicable river
basin.
(g) The volume of water available for conversion of
a water right that authorizes storage in a reservoir that has lost
storage capacity because of sedimentation to storage as part of an
aquifer storage and recovery project, as described in TWC, §11.158(d),
does not have to be continuously available, as defined in subsection
(e) of this section. The volume of water that can be converted to
storage in an aquifer storage and recovery project under this subsection
is limited to the lesser of:
(1) the storage volume that is demonstrated to have
been lost to sedimentation, as determined by a survey performed by
the Texas Water Development Board; or
(2) the volume of storage in the aquifer storage and
recovery project that would restore the amount of previously authorized
storage capacity lost to sedimentation.
(h) For an application for an on-channel storage facility
to be authorized for domestic or municipal water use, the proposed
diversion right of the reservoir must be equal to its firm yield.
The purpose of this limitation is to ensure a secure and dependable
source of water supply for uses necessary to protect the public health,
safety, and welfare (see also §290.41(b) of this title (relating
to Water Sources) requiring public water systems to have a "safe"
yield capable of supplying the maximum daily demands during extended
periods of peak usage and "critical hydrologic conditions"). Such
reservoir may be authorized in excess of its firm yield when the implementation
of a drought management plan or alternative sources of water supply
such as groundwater, other reservoir systems, or other means are available
to satisfy water needs during drought periods when the reservoir's
normal supply capabilities would be exceeded.
(i) Except for an application for an emergency, temporary,
seasonal, or term permit, or as provided by this section, the commission
may require an applicant to provide storage sufficient to yield the
requested annual diversion.
(j) In order to make the optimum beneficial use of
available water, a water right may be granted based upon the availability
of return flows or discharges. However, a water right granted upon
return flows or discharges that may cease in the future because of
new or increased direct reuse (i.e., the lawful reuse of water before
it is returned or discharged into the stream) or that may cease for
other lawful reasons will be granted with the express provision that
the water available for the water right is dependent upon potentially
interruptible return flows or discharges.
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