Section 15.52 - Criteria for Certification; Assignment of Priorities for Acquisition; Revocation of CertificationIn selecting and certifying those coastal wetlands most essential to the public interest, assigning priorities for acquisition of such wetlands, and determining whether to revoke such a certification, the commissioner will consider the following criteria:
(1) Coastal wetlands. The commissioner may consider whether such lands are coastal wetlands within the definition, intent, and purpose of the Coastal Wetlands Acquisition Act, Texas Natural Resources Code §§ 33.231 - 33.238, as elaborated by the definition of coastal wetlands contained in § 15.51 of this title (relating to Policy; Scope of Rules, Definitions).(2) Title. The commissioner will consider whether the state owns such coastal wetland or claims title to them, which title can be validated by bringing an appropriate action therefor in a court of law.(3) Characteristics of the coastal wetland. The commissioner will consider whether the biological, geological, or physical characteristics of such coastal wetlands, including the interrelationship of such coastal wetlands with other coastal wetlands, combine to make the preservation of such coastal wetlands essential to the public interest. In making this determination, the commissioner will be concerned with the effect of these factors on the ability of such coastal wetlands to perform functions beneficial to the public. Since scientific understanding of the operation and functions of the coastal wetlands of the Texas coast is continually evolving, the criteria for assessment of the value of coastal wetlands will evolve as the state of scientific knowledge improves. The criteria considered may include the ability of such coastal wetlands to function in: (A) production of plant and animal biomass;(B) provision for wildlife habitat and/or nursery grounds;(C) protection of endangered or important species;(D) temporary storage of flood and storm waters;(F) water quality enhancement;(G) entrapment of sediments;(H) storage and supply of inorganic nutrients and organic detritus;(I) aesthetics and recreation;(J) potential for aquaculture; and(K) protection of other, interrelated coastal wetlands that would be detrimentally affected if those with which they are interrelated were altered, damaged, or destroyed.(4) Danger. The commissioner will consider the degree to which such coastal wetlands are in danger of being altered, damaged, or destroyed, and the imminence of such danger. Those coastal wetlands which are both essential to the public interest and subject to alteration, damage, or destruction that will impair their ability to perform functions beneficial to the public will generally be considered a higher priority for state acquisition than those which are subject to less danger. Although receipt of an application under section 10 of the Rivers and Harbors Act of 1899, United States Code 1970, Title 33, section 403 or section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 United States Code §1344, for any Texas coastal wetland will be considered prima facie evidence of imminent danger to that wetland, the imminence of danger to a coastal wetland is not contingent upon receipt of such applications. Many activities, if properly designed and carried out, may be performed in coastal wetland areas without posing a substantial danger to the wetland. In assessing the imminence of threat to a wetland, the commissioner may consider any of the following:(A) Chemical and physical factors:(i) changes in water quality, especially pollutant or toxicant load, temperature, transparency, turbidity, dissolved oxygen concentration, and salinity;(ii) changes in substrate or soil condition, particularly in relation to topography of the area, as well as fertility and structure of the soils;(iii) changes in quantity and movement of inorganic nutrients and organic matter (particularly detritus) within, into, and out of the coastal wetland; and(iv) changes in hydrology, including both the amount, spatial and temporal pattern of water movement.(B) Biotic factors: (i) changes in biological oxygen demand;(ii) changes in productivity of living plants and animals, both within the coastal wetland and in associated natural systems; and(iii) changes in the composition, biomass, and diversity of plant and animal life within the coastal wetland and in associated natural systems.(C) Criteria for decision. When evaluating the impacts of proposed activities on coastal wetlands, the commissioner may consider the criteria for decision set forth in § 155.3(g) of this title (relating to Easements).(5) Cost. The commissioner will consider the cost of acquiring particular coastal wetlands relative to the benefit provided the public by such acquisition.31 Tex. Admin. Code § 15.52
The provisions of this §15.52 adopted to be effective March 22, 1979, 4 TexReg 785; amended to be effective September 11, 2005, 30 TexReg 5373