|(a) In its consideration of an application for a new or amended
water right to store, take, or divert state water in excess of 5,000 acre-feet
per year, the commission shall assess the effects, if any, of the granting
of the application on fish and wildlife habitats. The commission shall also
consider whether the proposed project would affect river or stream segments
of unique ecological value as identified by the applicable approved regional
water plan and designated as such by the Texas Legislature in accordance with
Texas Water Code §16.051(e).
(b) For an application for a new or amended water right to
store, take, or divert state water, the commission may require the applicant
to take reasonable actions to mitigate adverse impacts, if any, on fish and
(c) An assessment under this section shall include the project
site as well as potentially impacted habitat upstream, adjoining, and downstream
of the project site.
(d) In determining whether to require an applicant to mitigate
adverse impacts on a habitat, the commission may consider any net environmental
benefit to the habitat produced by the project. The commission shall offset
any mitigation it requires by any mitigation required by the United States
Fish and Wildlife Service pursuant to 33 Code of Federal Regulations §§320-330.
(e) The goal of the mitigation of wetlands is to achieve "no
net loss" of wetland functions and values. In addition to aquatic and wildlife
habitat, wetland functions also include, but are not limited to, water quality
protection through sediment catchment and filtration, storage plans for flood
control, erosion control, groundwater recharge, and other uses.
(f) In case of unavoidable wetlands loss, impacts to wetland
habitat are mitigated in accordance with the following guidelines:
(1) Wetlands shall be classified using the USFWS's "Classification
of Wetlands and Deepwater Habitats of the United States" (USFWS 1979). Specific
functions and values for wetlands habitats shall be determined on an individual
case basis using the most technically appropriate habitat evaluation methodology
(e.g., USFWS's Habitat Evaluation Procedures and Wetlands Evaluation Techniques;
TPWD's Wildlife Habitat Appraisal Procedure).
(2) Mitigation for wetland habitat loss shall seek first
to be an on-site and in-kind replacement of lost wetland function and value
whenever possible. Habitat mitigation shall be considered only after the complete
sequencing (avoidance, minimization or modification, and compensation/replacement)
process has been performed in accordance with 40 CFR §230.10 et seq.
(3) Habitats shall be evaluated using the most appropriate
methodology (e.g., USFWS's Habitat Evaluation Procedures and Wetlands Evaluation
Techniques; TPWD's Wildlife Habitat Appraisal Procedure). Total habitat value
for each habitat type shall be determined on an individual case basis for
the area impacted by a project.
(4) Mitigation for terrestrial and riparian habitat loss
shall be based upon on-site and in-kind replacement of lost habitat whenever
possible. Habitat mitigation shall be considered only after it has been established
that habitat impacts are unavoidable and there is suitable mitigation habitat
available for complete compensation for the lost habitat. Where on-site, in-kind
replacement of habitat is not possible, mitigation shall be limited to the
same watershed and ecoregion.
(5) Replacement of affected terrestrial and riparian habitats
shall be of equal or greater value with respect to affected habitat. Mitigation
will not be limited to a total habitat replacement, but will consider the
threatened or endangered nature of the habitat(s) being lost or degraded and
the limiting effects of surrounding land use on success compensation. Buffer
zones around the mitigation area may be required to fully compensate for the
total habitat loss.
(6) Water right permit reviews shall examine both direct
and indirect impacts to terrestrial and riparian habitats, as well as long
and short-term effects to the watershed or ecoregion that may result from
the permitted activity.
(7) Habitat mitigation plans and agreements shall be ensured
through binding legal contracts, permit provisions, and detailed management
plans and shall include goals and schedules of completion of those goals.
The mitigation habitat shall be managed in perpetuity by a party approved
by the commission to maintain the habitat value lost because of project impacts.
(g) The assessment of and conditions upon a proposed amendment
to a water right under this section shall be limited by §297.45(b) of
this title (relating to "No Injury" Rule) as provided by Texas Water Code