Section 26.33 - Policies for Appropriations of Water(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.31 Tex. Admin. Code § 26.33
The provisions of this §501.33 adopted to be effective October 6, 2004, 29 TexReg 9407; amended to be effective October 29, 2006, 31 TexReg 8840; Entire chapter transferred from Title 31, Chapter 501 by Texas Register, Volume 47, Number 43, October 28, 2022, TexReg 7301, eff. 12/1/2022