Part I. Texas Natural Resource Conservation Commission

Chapter 297. Water Rights Substantive

The Texas Natural Resource Conservation Commission (commission) adopts amendments to §§297.1, 297.11, 297.13-297.15, and 297.17-297.19; the repeal of §§297.16, 297.20, 297.21-297.29, 297.41-297.56, 297.71-297.74 and new §§297.16, 297.21-297.27, 297.41-297.56, 297.58-297.59, and 297.71-297.75 relating to Water Rights, Substantive. Sections 297.1, 297.13, 297.16-297.19, 297.21, 297.24, 297.42-297.45, 297.49, 297.50, 297.53, 297.56, 297.58, 297.59, and 297.71 are adopted with changes. Sections 297.11, 297.14, 297.15, 297.22, 297.23, 297.25, 297.26, 297.27, 297.41, 297.46, 297.47, 297.48, 297.51, 297.52, 297.54, 297.55, 297.72-297.75, and the repeal of §§297.16, 297.20, 297.21-297.29, 297.41-279.56 and 297.71-297.74 are adopted without changes to the proposed text as published in the October 9, 1998, Texas Register (23 TexReg 10306 et seq.), and will not be republished.

The amendments to §297.1, Definitions, add definitions for the terms "beneficial inflows," "conserved water," "drought of record," "firm yield," "mitigation," "unappropriated water," and and;" amend the existing definitions for the terms "appropriative right," "beneficial use," "dam," "domestic use," "industrial use," "permit," "priority," "state water," "streamflow," "surplus water," and "water right;" and repeal the definitions for "commission," "director or executive director," and "person."

The purpose of these changes is to clarify the meaning and use of these terms as they are used in applicable commission rules and the commission's interpretation and application of provisions contained in the Water Code and other state law, including Senate Bill 1 (Acts 1997, Texas Legislature, Regular Session, Chapter 1010). The changes also number the definitions contained in §297.1 in accordance with Texas Register style and format guidelines.

The commission also adopts amendments to §§297.11, 297.13-297.15, and 297.17-297.18, the repeal of §§297.16 and 297.20, and new §297.16 to clarify the meaning and use of these provisions as they are used by the commission in the review and action on water right applications and to implement changes made to the Texas Water Code by Senate Bill 1 (Acts 1997, Texas Legislature, Regular Session, Chapter 1010).

In addition, the commission adopts the repeal of §§297.21-297.24, new §297.21, and the amendment and renumbering of §297.25-297.30. The purpose of the changes is to consolidate and clarify provisions related to water uses exempt from permitting and special conditions for storage in another's reservoir.

Additionally, the commission adopts the repeal of §§297.41-297.57 and new §§297.41-297.58. The purpose of these changes is to clarify existing commission criteria used for the issuance and the placing of conditions on new and amended water rights and to implement related provisions of Senate Bill 1 (Acts 1997, Texas Legislature, Regular Session, Chapter 1010).

In addition, the commission adopts the repeal of §§297.71 -297.74 and new §§297.71 -297. The purpose of these changes is to clarify the meaning and use of these provisions as they are used by the commission in the cancellation and revocation of water rights and to implement changes made to the Texas Water Code by Senate Bill 1 (Acts 1997, Texas Legislature, Regular Session, Chapter 1010).

EXPLANATION OF ADOPTED RULES. The definitions contained in §297.1 are made applicable to Chapter 288, Water Conservation Plans, Drought Contingency Plans, Guidelines and Requirements, as well as to Chapter 295 as currently provided. These definitions are equally applicable to Chapter 288 since the rules address the same subject matter.

The new definition for "conserved water" is in response to changes made to Texas Water Code §11.002 by Senate Bill 1 (1997). A related amendment to "beneficial use" adds as a beneficial use the conservation of water in accordance with changes made to §11.002 of the Texas Water Code by Senate Bill 1 (1997).

Additionally, a definition for "unappropriated water" is adopted for purposes of Texas Water Code §11.134(b)(2). This statute provides that the commission may grant an application for an appropriation of state water only if "unappropriated water is available in the source of supply." Unappropriated water available for this purpose would be the water remaining in a watercourse or other source of supply after taking into account complete satisfaction of all existing uncancelled certificates of adjudication, permits, and certified filings valued at their fully recorded amounts and conditions. This definition is based upon the Texas Supreme Court's interpretation of this provision in Lower Colorado River Authority v. Texas Dept. of Water Resources (Stacy Dam) 689 S.W.2d 873 (Tex. 1984). The definition includes unappropriated water available for all beneficial purposes. Water available for new appropriation, however, may be limited for the maintenance and protection of flows necessary for existing instream uses, water quality, aquatic and wildlife habitat, and bays and estuaries pursuant to §§11.147, 11.150, and 11.152 of the Texas Water Code. A related definition is being adopted for the term "firm yield" in determining the availability of unappropriated water for storage in a reservoir to supply water for domestic and municipal use. The definitions for "unappropriated water" and "firm yield" also correspond to proposed amendments to §297.41 of this title (relating to Subject to Prior and Superior Water Rights) clarifying the existing criteria used by the commission in determining whether there is sufficient, available unappropriated water for a new or increased appropriation.

A definition for "beneficial inflows" is also adopted for purposes of Texas Water Code §11.147 and §297.51 of this title (relating to Estuarine Considerations). These laws provide that the commission shall consider the impacts of an application for a new or amended water right on bays and estuaries and the commission may place conditions on the water right to provide beneficial inflows to the affected bay and estuary. The definition is based upon the definition of "beneficial inflows" contained in §11.147(a) of the Code.

A definition for "drought of record" is adopted for purposes of determining the firm yield of a project and whether there is sufficient water to grant certain appropriations such as municipal use that are dependent upon a firm water supply in accordance with Texas Water Code §11.134(b)(2). This definition is based on historic practice within the agency and is consistent with accepted principles of climatological and hydrological analysis.

The definition for "mitigation" is adopted for purposes of Texas Water Code, §§11.147, 11.1491, 11.150, and 11.152, and commission rules contained in proposed §§297.53, 297.54, 297.55, and 297.56 of this title. These laws provide that the commission must consider the effects of the issuance of a new or amended permit on water quality, existing instream uses, fish and wildlife habitat, and bays and estuaries, with the goal of implementing reasonable actions to avoid, minimize and/or compensate for unavoidable adverse impacts. This definition is consistent with related commission rules contained in Chapter 279, Water Quality Certification, and with use of the term for identifying mitigation measures under other state and federal statutes.

Additionally, a definition of "wetland" as provided by Texas Water Code §11.502 has been added to §297.1 for purposes of §§11.147 and 11.152 Texas Water Code and §297.53 of this title relating to Habitat Mitigation. These provisions require the commission to assess the impacts of a proposed project on aquatic and wildlife habitat, including wetlands, and to require the mitigation of unavoidable impacts.

The amendment to the definition of "dam" clarifies that such structures may also store as well as impound water. These terms, although similar, may convey different meanings.

The commission adopts a revised definition of "domestic use." While the revision is intended primarily to make it easier to understand the definition, the revised definition also contains further clarification concerning the commission's policy and past actions relative to whether or not a water right permit would be required. The revised definition clarifies that such use is limited to the use by the person or household. Additionally, the definition specifies that "domestic use" may include a recreational use (including aquatic and wildlife enjoyment) so long as the use also meets the other requirements for a "domestic use." For example, if a person specified a recreational use other than for his personal or household use, such as a hunting and fishing club and charges a fee for its use, the exempt status under "domestic use" would not apply and the person would need to obtain a water right permit for "recreational use."

The amendment to the term "livestock use" clarifies the types of animals and watering activity which could be considered for permit exemption under §11.142 of the Texas Water Code. For example, the incidental and open-range watering of game and fur-bearing animals would be considered as part of the "livestock use" and, therefore, exempt from permitting under §11.142. Also, a landowner who constructed a reservoir primarily for domestic and livestock purposes and leases his ranch or farm for the hunting of wildlife would be exempt from the permitting requirements under 11.142.

The amendment to the definition of "permit" clarifies that such term also includes new or amended certificates of adjudication, certified filings, or unadjudicated claims.

The amendment to the term "priority" deletes the reference to the Wagstaff Act, Texas Water Code §11.028, which was repealed by Senate Bill 1 (1997), and indicate that exceptions to the priority in time rule are provided by court decisions and state law relating to water rights in the Lower Rio Grande Valley, vested riparian rights, and certain uses exempt from permitting.

The amendment to the term "recreational use" clarifies that the use of water for aquatic and wildlife resource purposes which exceed the personal and household needs of an individual and for which the individual will receive consideration or compensation, does not qualify for exemption under §11.142 of the Texas Water Code. For example, if a person proposes to construct and maintain a reservoir for the purpose of fishing or in-place recreational activities and charges for that activity, a permit must be obtained under §11.121 of the code.

Adopted changes to the definition of "reservoir systems operations" clarify that the coordinated operation of such reservoirs to optimize water supplies may be done across river basins and with reservoirs owned or operated by different entities through cooperative agreements.

The definition for "streamflow" is amended to clarify that it may include any flow in the stream.

The definition for "state water" is also amended to clarify that percolating groundwater and diffuse surface runoff before it reaches a state watercourse is not state water. This includes springwater before it reaches a watercourse, as determined by the court in A.H. Denis, III et al. v. Kickapoo Land Co., et al., 771 S.W.2d 235 (Tex. App. -Austin 1989, writ denied). Additionally, state water injected into the ground for an aquifer storage and recovery project remains state water in accordance with the court ruling in Texas Rivers Protection Assoc. V. TNRCC, 910 S.W.2d 147 (Tex. App. -Austin 1995).

In addition, a change to the definition of "surplus water" is adopted to correspond to the change in the definition of this term in §§11.002 and 11.046(d) of the Texas Water Code made by Senate Bill 1 (1997).

Amendments to the definition of "water right" clarify that such rights include amendments made to water rights and that they may also provide for the taking and storing of water.

Finally, the definitions for "commission," "director or executive director," and "person" are repealed because they are redundant of the definitions for these terms contained in Chapter 3 of this title that apply to all commission rules.

The title of Subchapter B is changed to clarify that the subchapter includes all classes of water rights administered by the commission, including certificates of adjudication, unadjudicated claims, and filings as well as permits.

Changes to §297.11, Permit Under Texas Water Code §11.121, amends the title and rule to clarify that Texas Water Code §11.121 provides the general authority to the commission for the issuance of a water right, and that these rights may have special terms and conditions as provided by more specific statutory and regulatory provisions addressed in subsequent rules in the subchapter.

Amendments to §297.13, Temporary Permit Under Texas Water Code §§11.138 and 11.153-11.155, incorporate the specific conditions provided by Texas Water Code §11.138 under which a person may be granted the authority to temporarily use water. The changes also allow the TNRCC regional director or watermaster, as applicable, to issue by registration temporary permits of ten acre-feet or less for no more than one year and for which no notice or hearing is required. This change also implements recommendations made in the agency's Business Plan Review. The change is necessary because these small amounts of water for limited periods need to be issued quickly and locally.

Amendments to §297.14, Contractual Permit, clarify that such permits may be issued by the commission as well as authorized through the administrative review and approval of contracts by the executive director under subchapter J, Chapter 297, (relating to Water Supply Contracts and Amendments) to ensure consistency with the underlying water right.

Amendments to §297.15, Permit Under Texas Water Code, §11.143, change the title of the rule to more specifically describe the nature of this permit by indicating in the title that a permit is required to make additional uses of a domestic and livestock reservoir that would otherwise be exempt from permitting.

Section 297.16, Permit for Storage (Texas Water Code, §11.140), is repealed because it is redundant of other existing rules relating to the review and approval of an application for a new or amended water right, including that for a storage reservoir.

The adoption of new §297.16 implements changes made to Texas Water Code §11.042 by Senate Bill 1 (1997) by providing the statutory criteria and conditions to be used in the commission's authorization for the conveyance of water in the bed and banks of a stream or watercourse. This rule tracks the statute.

Amendments to §297.17, Emergency Permit (Texas Water Code §11.139), implement changes made to Texas Water Code §11.139 by Senate Bill 1 (1997). Specifically, these changes provide for the emergency transfer of water appropriated to another if the commission finds emergency conditions to exist which present an imminent threat to the public health and safety and which override the necessity to comply with established procedures and there are no practicable alternatives to the emergency authorization.

Amendments to §297.18, Interwatershed Transfers, implement changes made to Texas Water Code §11.085 by providing a balancing test to be performed by the commission between the detriments to the basin of origin and the benefits to the receiving basin. If the benefits outweigh the detriments, the commission may approve the application. Specific factors to be examined in performing this balancing test as provided under §11.085 are also included in the proposed rule as well as corresponding statutory conditions and criteria relating to water right amendments. Additionally, statutory exemptions to the special requirements under §11.085 are also provided. Also, the title of the rule is amended to reference "inter-basin," rather than "inter-watershed," as provided by the changes made to §11.085 by Senate Bill 1.

Amendments to §297.19, Term Permit, clarify the criteria and conditions the commission must use in its authorization for someone to use unused appropriated water in accordance with Texas Water Code, §§11.1381, and 11.153-11.155.

Section 297.20, Permit for Diversion from Unsponsored or Storage-Limited Reservoir, is repealed as redundant of provisions under §§297.31-297.32 of this title (relating to Diversion from Unsponsored or Storage Limited Reservoirs).

Sections 297.21-297.24 are repealed so that redundant provisions can be deleted and remaining provisions relating to domestic and livestock use may be consolidated in a proposed new §297.21, Domestic and Livestock Use. Additionally, the statutory and common law extent of the exempt domestic and livestock use is clarified by including the distinction from other vested riparian rights, the rights and duties as between exempt uses, the definition for "normal" storage for purposes of determining the size of an exempt domestic and livestock reservoir, and the prohibition of such reservoirs on navigable streams. These provisions are based upon the Texas Supreme Court's decision in Motl v. Boyd, et>116 Tex. 82, 104-108, 111, 121-122 and 124 (1926) and the exemption provided to vested riparian rights for domestic and livestock use from having to file a claim under the Texas Water Right Adjudication Act, Texas Water Code, §11.303(a)(1) and (l), as well as Texas Water Code, §11.142 (see also, Hutchins, The Texas Law of Water Rights, pp. 293 et seq. - 961).

New §297.22, Storage in Another's Reservoir, clarifies that the consent from the reservoir owner for the storage of water must be in writing and submitted to the executive director. The amendments also reflect the change in name of the Soil Conservation Service to the Natural Resources Conservation Service.

Amendments to §297.26, Spreader Dams, Contouring, Terracing, renumber this section as new §297.23.

Amendments to §297.27, Permit Exemption for Mariculture Activities, renumber this section as new §297.24 and clarify that an order requiring the interruption or reduction of the use of water under the section may apply to all water rights for this purpose, not just to appropriations.

Amendments to §297.28, Permit Exemption for Drilling and Producing Petroleum, renumber this section as new §297.25.

Amendments to §297.29, Permit Exemptions to Use State Water for Emergency Use, renumber this section as new §297.26 and clarify that such exemption includes firefighting emergencies.

Amendments to §297.30, Permit Exemptions for Use of State Water for Irrigation of Certain Historic Cemeteries and for Sedimentation Control Structures Within Surface Coal Mining Operations, have been renumbered as new §297.27.

Subchapter E, Chapter 297, is repealed so that it may be reorganized to follow generally the corresponding statutory order of the criteria and factors used in the review and approval of a water right application as set forth in the Texas Water Code as well as to make certain clarifications and to implement changes made to the Texas Water Code by Senate Bill 1 (1997).

The repeal of §297.41, Subject to Prior and Superior Rights, and adoption of new §297.41, General Approval Criteria, provides the general statutory criteria the commission must use in its review and action on a water right application pursuant to Texas Water Code 11.134. The provisions of existing §297.41 are clarified and transferred to new §297.44 as provided below.

The repeal of §297.42, Additional Limitations, and adoption of new §297.42, Water Availability, sets forth the criteria the commission uses to determine whether there is sufficient unappropriated water available to grant a new appropriation pursuant to Texas Water Code §11.134(b)(2). Generally, one hundred percent of the water does not need to be available one hundred percent of the time for the requested appropriation to be granted. Rather, sufficient water will be found available if there is a sufficient amount available a sufficient amount of time to make the proposed project viable and ensure the beneficial use of water without waste. Alternatively, supplemental water supplies available to the applicant and return flow requirements may be considered in making this determination. The existing provisions of §297.42 are consolidated with other special conditions under a new §297.58 as described below. These provisions have long been the policy of the commissions.

The repeal of §297.43, Requiring Storage Facilities, and adoption of new 297.43, Beneficial Uses, sets forth the statutorily authorized purposes for which water may be put to use as provided under Texas Water Code §11.023. The new rule also provides that such preferences of use as provided under Texas Water Code §11.024 shall be used in the commission's consideration of competing applications for the use of the same water, which has long been commission policy. The provisions of existing §297.43 are transferred and consolidated with other special conditions under new §297.58 described below.

The repeal of §297.44, Acceptance of Permit or Certificate of Adjudication, and adoption of new §297.44, Subject to Prior and Superior Rights, reflect that Texas has generally adopted the prior appropriation doctrine as a basis of allocating state water resources as provided by Texas Water Code §11.027. The amendment further provides that the priority of a water right is determined by the date the application is filed with the commission as provided by Texas Water Code 11.141. The amendment clarifies that an application is deemed to have been filed with the commission for purposes of time priority when it has been declared administratively complete by the executive director and filed with the chief clerk. The provisions of existing §297.44 are transferred and consolidated with other special conditions under new §297.58 described below.

Additionally, new §297.44 provides that there are some exceptions to the first in time, first in right principle. One such exception relates to water rights granted on the main stem of the Rio Grande below the Amistad Reservoir in the Lower Rio Grande Valley (see, generally, Chapter 303 of this title). In the court's adjudication of those rights in State v. Hidalgo County WCID No. 18, 443 S.W.2d 728 (Tex. Civ. App. - Corpus Christi 1969, writ ref'd n.r.e.), priority was assigned based upon the classification of use, rather than the date the certified filing, claim, or application was filed, in order to address rights granted under Spanish and Mexican law and recognized by Texas under treaty and equitable rights granted by the courts. State v. Valmont Plantations, S.W. 2d 502 (1962). Under the court's ruling, rights for domestic, municipal, and industrial use have a higher priority and may be curtailed during times of low flow only after rights for irrigation, mining, and other uses have been limited. The other exceptions to the prior appropriation principle relate to certain limited uses exempt from permitting under Texas Water Code §§11.142, 11.1421, 11.1422, and 11.303(l).

The repeal of §297.45, Return and Surplus Water, and adoption of new §297.45, "No Injury" Rule, sets forth the "no injury" rule pursuant to Texas Water Code §11.134(b)(3)(B) providing that an application may not be approved if it would impair an existing water right or vested riparian right such as domestic and livestock use exempt from permitting. Additionally, the amendment provides that the scope of review under the "no injury" rule when considering an application for a water right amendment is limited by the "four corners" analysis provided under Texas Water Code §11.122, as amended by Senate Bill 1 (1997). Under this provision, the commission is to compare the effect of the proposed amendment on other existing water rights with such effects from the full, lawful exercise of the water right prior to its amendment to determine whether the proposed change would impair another existing water right. If the existing water right can be fully exercised in accordance with all terms and conditions within the "four corners" of the existing water right so as to have the same impacts on stream flows as the proposed amended water right, then the proposed change could not, as a matter of law, impair other water rights. If the proposed change would create such impacts, however, the commission will consider what types of restrictions to place on the amendment to prevent such impacts. This is commission practice and consistent with case law. The provisions of existing §297.45 are clarified and transferred to new §297.49 as described below.

The repeal of §297.46, Suppliers of Water for Irrigation, and adoption of new §297.46, Consideration of Public Welfare, implements Texas Water Code §11.134(b)(3)(C) by providing that the commission may not grant an application for a new or amended water right if it would be detrimental to the public welfare. The rule sets out the factors and criteria, already in another rule, to be used by the commission in making this determination. The provisions of existing §297.46 are transferred to new §297.52.

The repeal of §297.47, Time Limitations for Commencement or Completion of Construction, and adoption of new §297.47, Impacts on Groundwater, implements changes made by Senate Bill 1 (1997) to Texas Water Code §11.134(b)(3)(D) and new Texas Water Code §11.151 requiring the commission to assess the impacts to groundwater in its review and action on an application for a new or amended water right. The provisions of existing §297.47 are transferred to new §297.51 as described below.

The repeal of §297.48, Low-Flow Outlets for Dams, and adoption of new §297.48, Waste Prevention, provides for the transfer of provisions in existing §297.54 to new 297.48. The provisions of existing §298.48 are consolidated with other special conditions and transferred to new §297.58.

The repeal of §297.49, Habitat Mitigation, and adoption of new §297.49, Return and Surplus Water, implements changes made by Senate Bill 1 (1997) to Texas Water Code 11.046. Such changes clarify that, unless provided otherwise in the water right, the water right holder may use and reuse the water as authorized under the water right prior to its return to the stream. However, once the water is returned to the stream, it is generally considered to be surplus water, subject to appropriation by others and meeting environmental water needs. The amendments also make clear that return flows must also meet applicable water quality standards for the stream contained in Chapter 307 of this title. The provisions of existing §297.49 are clarified and transferred to new §297.53 as described below.

The repeal of §297.50, Water Quality Effects, and adoption of new §297.50, Consideration of Water Conservation Plans, provides for the clarification and transfer of the provisions of §297.50 to new §297.54 and the transfer of the provisions of §297.55 to proposed new §297.50.

The repeal of §297.51, Estuarine Considerations, and adoption of new §297.51, Time Limitations for Commencement or Completion of Construction, provides for the clarification and transfer of the existing provisions of §297.51 to proposed new §297.55 as described below and the transfer of existing provisions of §297.47 to new §297.51.

The repeal of §297.52, Instream Uses, and adoption of new §297.52, Suppliers of Water for Irrigation, allows for the transfer of the existing provisions of §297.46 to proposed new §297.52 and the clarification and transfer of the existing provisions of §297.52 to proposed new §297.56 as described below.

The repeal of §297.53, Conservation and Beneficial Use, and adoption of new §297.53, Habitat Mitigation, allows for the clarification and transfer of the existing provisions of §297.53 to new §297.50 and for the clarification and transfer of existing provisions of §297.49 to new 297.53. New §297.53, Habitat Mitigation, reorganizes the existing provisions under §297.49 to make it more readable. Additionally, the change clarifies existing criteria used to determine the manner and extent of mitigation required for aquatic and wildlife habitat lost as a result of the approval of the application pursuant to Texas Water Code §11.152. Specifically, the commission is to consider any environmental net benefit to the habitat produced by the project in determining overall mitigation requirements. These rules are consistent with current 279 rules and policy.

The repeal of §297.54, Waste, and adoption of new §297.54, Water Quality Effects, provides for the transfer of the existing provisions of §297.54 to new §297.48 and the clarification and transfer of the provisions of existing §297.50 to new §297.54. New §297.54, Water Quality Effects, clarifies that the commission is also to assess the impacts to water quality resulting from a proposed new or amended water right pursuant to Texas Water Code §11.147 and 11.150. The commission may also impose conditions on new or amended water rights to protect water quality standards established by commission rules contained in Chapter 307 of this title.

The repeal of §297.55, Consideration of Water Conservation Plans, and adoption of new §297.55, Estuarine Considerations, allows for the transfer of the provisions of existing §297.55 to new §297.50 and the clarification and transfer of the provisions of existing §297.51 to new §297.55. New §297.55, Estuarine Considerations, includes all factors and information provided under Texas Water Code §11.147 relevant to determine water right conditions for the maintenance of beneficial inflows to bays and estuaries. Amendments to this section also include the appropriation to Texas Parks and Wildlife Department for bay and estuary purposes of at least five percent of the storage of a reservoir built after September 1, 1985, with state financial aid as well as the emergency release of unappropriated or unallocated water in certain state-owned and controlled reservoirs for the protection of environmental water needs as provided by Texas Water Code §16.1331 and 16.195, respectively.

The repeal of §297.56, Conserved Water, and adoption of new §297.56, Instream Uses, implements the changes to Texas Water Code §11.002 enacted by Senate Bill 1 (1997) which provides that conserved water constitutes a beneficial use of water and allows the clarification and transfer of the provisions under existing §297.52 to new §297.56. New §297.56, Instream Uses, clarifies that the commission also assesses the impacts to existing instream uses resulting from proposed water right amendments as well as new water rights. The commission shall impose limitations in a new or amended water right necessary to maintain applicable water quality standards for the affected stream or as necessary to protect federally listed species or species of "high interest" as defined under the section or recreational uses.

Adoption of new §297.58, Accounting; Multiple Uses of the Same Amount, prevents the redundancy with proposed new §35.101 of this title (relating to Emergency Suspension of Permit Conditions) and implements new Texas Water Code §11.135(b)(5) enacted by SB 1 (1997) providing that if the use of the appropriated water is authorized for multiple purposes, the permit shall contain a special condition limiting the total amount of water that may actually be diverted for all the purposes to the amount of water appropriated. The rule also provides that if a water right has appropriations with different priority dates, the oldest priority water shall be credited against the water right first unless the water right expressly provides otherwise.

The adoption of new §297.59, Additional Limitations, incorporates special permit conditions currently provided under §§297.43, 297.44 and 297.48. These latter rules are repealed so that they may be consolidated under the one general, miscellaneous provision.

FINAL REGULATORY IMPACT ANALYSIS The commission has reviewed the rules, as adopted, and in light of the regulatory analysis requirements of Texas Government Code §2001.0225, has determined that the rulemaking is not subject to this provision because it does not meet any of the four applicability requirements listed in the provision because the rule is specifically required by changes made to the Water Code by Senate Bill 1 (1997), and it does not otherwise exceed any express requirements of state law, and does not involve any delegation agreements or contracts. Some of these rules implement S.B. 1, and other rules implement existing commission policy which has been necessary to implement existing law.

TAKINGS IMPACT ASSESSMENT The commission has prepared a Takings Impact Statement for these rules pursuant to Texas Government Code §2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to implement the substantive requirements of Senate Bill 1 from the 1997 legislative session. Promulgation and enforcement of these rules will not burden private real property. Rather, they implement statutory requirements providing for the beneficial use of state water to which persons have been granted a usufructuary interest and over which the state retains supervisory oversight in trust for the public for the protection of the public health, safety, and welfare. And, since these requirements are in the legislation of S.B. 1, any takings argument would be that the statute violates Chapter 2007 of the Government Code.

Any burden to real property, if it exists, would be exempt from takings claims because the rules are adopted pursuant to a real and substantial threat to human health and safety, significantly advance that human health and safety purpose and go no further than is necessary to achieve that purpose. Specifically, these requirements protect property right holders, other water right holders, and protect environmental uses of state water.

COASTAL MANAGEMENT PROGRAM (CMP) The commission has determined the rulemaking is subject to the Texas Coastal Management Program and has reviewed the rules for consistency in accordance with the Coastal Coordination Act Implementation Rules 31 TAC §505, relating to Council Procedures for State Consistency with Coastal Management Program Goals and Policies, and in particular, 31 TAC §505.11, relating to Actions and Rules Subject to the Coastal Management Program, and has identified the rules as potentially affecting an action or authorization identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Applicable goals contained in 31 TAC §505.12 include: 1) to protect, preserve, restore, and enhance the diversity, quality, quantity, functions and values of coastal natural resource areas (CNRAs); 2) to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone; and 5) to balance the benefits from economic development and multiple human uses of the coastal zone, the benefits from protecting, preserving, restoring, and enhancing CNRAs, the benefits from minimizing loss of human life and property, and the benefits from public access to and enjoyment of the coastal zone. Of the eighteen policies contained in 31 TAC §501.14, relating to Policies for Specific Activities and Coastal Natural Resource Areas, only one: (r) Appropriation of Water, has the potential for being affected by the rule. The commission has reviewed these rules for consistency with the aforementioned goals and policies of the Texas Coastal Management Program and has determined the rules are consistent with the intent of the applicable goals and policies and will not result in any significant adverse effects to CNRAs. The rules implement, in part, provisions under Chapter 11 of the Texas Water Code requiring the assessment of environmental impacts from applications for new and amended water rights to existing instream uses, aquatic and wildlife habitat, water quality, and freshwater inflows to bays and estuaries. In determining what conditions may be placed on the water right, if granted, the commission is to weigh such impacts with the proposed use of the water to balance such benefits with any potential impacts. The commission may also require that if such impacts cannot be avoided, that they be minimized and mitigated.

PUBLIC HEARING A public comment hearing on this proposal and rules was held in Austin on October 29, 1998, beginning at 10:00 a.m. in the Texas Natural Resource Conservation Commission Office Complex, Building E, Room 201S, located at 12100 Park 35 Circle. The hearing was structured to receive oral or written comments by interested persons. One individual, Dr. Richard Kiesling provided oral comment. Dr. Kiesling also filed written comments prior to close of the public comment period established through publication of the rules in the October 9, 1998 Texas Register (23 TexReg 10298 et. seq.).

GENERAL COMMENTS In reviewing the proposed rule following the public comment period commission staff identified a small number of grammatical and typographical errors which were not caught by respondents. Since the corrections do not constitute substantive changes to the rules, staff have made corrections in conjunction with the revisions made to address comments received during the public comment period.

Written comments suggesting changes to the proposed rules were provided by: the American Land Foundation (ALF); the Association of Electric Companies of Texas, Inc. (AECT); Bracewell & Patterson, L.L.P., on behalf of the company of Azurix, a subsidiary of the Enron Corporation; Booth, Ahrens & Werkenthin, L.L.P., on behalf of the City of Victoria (Victoria) and Tarrant Regional Water Authority (Tarrant Regional); Bracewell & Patterson, L.L.P., on behalf of Associated General Contractors (AGC); Brown McCarroll & Oaks Hartline, L.L.P. (Brown McCarroll); Brown & Potts, L.L.P. (Brown & Potts); the Brazos River Authority (BRA); the City of Dallas; the Law Offices of Glenn Jarvis on behalf of the Texas Irrigation Council (TIC); Henry, Lowerre, Johnson, Hess & Frederick, Attorneys at Law (Henry, Lowerre); the Lake Medina Conservation Society (LAMCOS); the Law Offices of Louis T. Rosenberg, P.C., on behalf of Bexar Metropolitan Water District (Bexar Met); the City of North Richland Hills (North Richland Hills); the Public Interest Council of the Texas Natural Resource Conservation Commission (PIC); the San Antonio Water System (SAWS); Small, Craig & Werkenthin, P.C., on behalf of the Texas and Southwestern Cattle Raisers' Association (Cattle Raisers); the Texas Water Conservation Association (TWCA); the Texas Water Development Board (TWDB); Texas Parks and Wildlife, Texas Utilities Services (TU) and an individual.

Henry, Lowerre, Johnson, Hess & Frederick stated that proposed revisions to Chapter 297 were subject to the Texas Coastal Management Program (CM) and by failing to acknowledge this, the TNRCC failed to comply with the requirements of 31 TAC Section 505.22.

The commission has conducted a consistency review of the adopted rules and has found the rules to be consistent with the applicable goals and policies of the CMP (see Coastal Management Program discussion above).

Brown & Potts, L.L.P., commented that the definition of "conserved water" contained in §297.1(12) providing that conserved water does not include water made available simply through its non-use without the use of conservation practices, techniques or technologies is confusing and exceeds statutory authority.

The commission disagrees with the comment because the definition makes a necessary distinction between the simple non-use of water subject to cancellation of a water right under Subchapter E, Chapter 11 of the Texas Water Code, and water saved by the active employment of conservation measures and, thus , the beneficial use of the water.

SAWS comments that the definition for "municipal use" contained in §297.1(29) also be provided in Chapter 295 and that revisions to the definition substitute the language "reuse of such water" for "use of sewage" and "municipal, industrial and commercial" uses be substituted for "urban uses".

The commission disagrees with the comment because §297.1 expressly provides that these definitions are also applicable to Chapter 295 and that the inclusion of the term "reuse" and uses other than municipal would greatly expand current authorizations for municipal water rights. Changes in purpose of use, diversion point, and location of use that may be associated with reuse and industrial and commercial use require the approval of an amendment to the water right in accordance with Texas Water Code §§11.122, 11.042 and 11.046.

The ALF and the Cattle Raisers comment that the definition for "domestic use" contained in §297.1, Definitions, should not limit the amount of acreage that may be used for domestic purposes exempt from permitting pursuant to Texas Water Code §11.142 to one acre or any other fixed amount. Rather when questions arise of whether the amount of irrigated acreage exceeds that necessary for the domestic use of an individual of an individual or household, that this be reviewed on a case-by-case basis considering the particular needs and size of the household.

The commission agrees with this comment. The commission further responds that the greatest number of water right complaints to the commission's central office and field staff relate to whether a use is exempt from permitting under Texas Water Code §11.142. Because of limited staff resources and the inability to investigate and evaluate every complaint, a fixed amount of irrigated acreage below which there would be no question as to whether the use qualified as exempt would have greatly helped alleviate this work load on the agency. Additionally, it would have provided clear and consistent guidance on this issue. A similar practice is followed by other western states for these reasons. It is generally believed that a one acre/orchard may be sufficient to meet any household's domestic needs. However, the commission recognizes that what amount of irrigated acreage falls within an exempt use is subject to the particular domestic needs and size of a household. Accordingly, the amendment to the definition of "domestic use" at this time simply clarifies that such use is limited to the use by the person or household. The commission will include factors that may be considered in this evaluation in the commission's regulatory guidance document for water rights.

The Cattle Raisers commented that the proposed changes to the definition of "domestic use" has changed the definition to exclude uses for which payment or compensation is received, without any qualification to recognize legitimate incidental situations where "consideration" may be given or received. For example, the Cattle Raisers state that such incidental uses could include persons trading products from a family garden or orchard with a neighbor or using such products in bake sales, potluck suppers or similar circumstances. Therefore, the Cattle Raisers recommend that the definition include a qualification for such incidental activities.

The commission responds that the definition of domestic use as it relates to uses exempt from permitting under Texas Water Code §11.142 previously included that compensation for such use may not be given or received. However, the intent of the provision is to not require a permit for the use of water that may result in such incidental exchanges between neighbors or other similar activities such as bake sales or potluck suppers. The commission has amended §297.21, relating to (Domestic and Livestock Use) to further clarify the intent to not require a permit for the use of water that goes toward such exchanges and donations.

The AECT, commented that the proposed definition for "drought of record" contained in §297.1(17), Definitions, should be amended by deleting language providing that such flows are calculated by using naturalized streamflow.

The commission disagrees with the comment because the definition relates to the lowest anticipated flow in the stream as a result of drought based upon historical records, and not the lowest flow based on artificial diversions and impoundments.

TWDB commented that the proposed definition for "drought of record" in §297.1(17) specify an appropriate period for determining the drought of record and that a separate period should be provided for direct diversion rights and for projects with reservoir storage. TWDB suggests a single year for the former and the period between consecutive flood spills for the latter.

The commission has made no changes in response to this comment. The phrase "drought of record" is only used in the Chapter in the definition of firm yield. Firm yield is a concept related to the effective amount of water to be produced from a reservoir. Since the phrase "drought of record" is not used in this Chapter in relation to direct diversions, a definition for this purpose would be superfluous. The appropriate period for determining the drought of record is specified in the adopted rules as the historic period of record in order to ensure that the full range of available historical data is examined in order to find the period of lowest flows, to obtain a worst case scenario on which to base the proposed yield of the reservoir.

Brown & Potts, L.L.P. commented that the proposed definition for "drought of record" contained in §297.1(17) is inconsistent with the use of this term by the TWDB for regional planning purposes and that the two agencies should use consistent definitions. Specifically, the rule defines "drought of record" as "(t)he historic period of record for a watershed in which the lowest flows were known to have occurred on naturalized streamflow" whereas the TWDB definition defines the term to mean "(t)he period of time when natural hydrological conditions provided the least amount of water supply".

The commission disagrees with the comment because the commission's term relates only to surface water while the TWDB's term must relate to all sources of water supply, including surface and groundwater. In addition, there is no conflict in meaning between the two terms when applied to surface water.

TWDB commented that the proposed definition for "firm yield" in §297.1(18) be revised so that the term "annually" be replaced with "each year" because the term "annually" could imply any one year. TWDB also commented that a comma should go in between the words "flows" and "that" and the word "naturalized" be substituted for "historic available". Finally, the TWDB commented that "naturalized" stream flows could be defined as historic stream flows adjusted to remove human impacts, including those associated with diversions, storage and discharges.

The commission agrees in part with the comments. The change from "annually" to "each year" is unnecessary and does not provide greater clarity. However, the commission agrees with the remaining comments and has revised the rule accordingly.

Henry, Lowerre commented that the proposed definition in §297.1(18), Definitions, for "firm yield" should acknowledge that the calculation would also assume the passage of flows needed to meet all applicable instream and inflow requirements.

The commission agrees with the comment and has revised the rule accordingly.

BRA commented that the proposed definition for "firm yield"contained in §297.1(18), Definitions, should be clarified to indicate that firm yield is based upon naturalized flows for which the full impact of all pre-existing water rights exercised at their full legal amount is accorded.

The commission agrees with the comment and has amended the rule accordingly.

Brown & Potts, L.L.P., commented that the proposed definition for "mitigation" is incomplete as it may also relate to mitigating economic impacts of an interbasin transfer to the basin of origin.

The commission responds that the definition is intended to relate only to habitat mitigation provided by §297.53, Habitat Mitigation, and has revised the term accordingly by placing the word "habitat" before "mitigation" and renumbering the definitions according to alphabetical order.

The AECT, commented that all proposed new language for the definition of "mitigation"contained in §297.1(28) setting out the sequence of mitigation steps be deleted because mitigation is addressed in Senate Bill 1 (1997) only in regards to interbasin transfers and is listed there as "compensation and mitigation."

The commission disagrees with the comment because the definition is applicable to mitigation required for impacted aquatic and wildlife habitat in the assessment of water right applications as provided under §297.53 of this title (relating to Habitat Mitigation) and pursuant to Texas Water Code, §11.152. The changes are also consistent with the TNRCC's regulatory guidance contained in "A Regulatory Guidance Document for Applications to Divert, Store or Use State Water" (June 1995). An expressly-stated purpose of this rulemaking was not only to implement Senate Bill 1 but to also provide in rule where necessary and appropriate the agency's policies and guidance contained in this document as required by Texas Water Code §5.103.

The City of Dallas commented that in the proposed definition of "mitigation" that "balance", "compensate", or "counteract" be used instead of the term "offset".

The commission disagrees with the comment because the term "offset" is appropriate when considering actions to mitigate loss of wildlife habitat affected by a project. It is also consistent with the state's "no net loss" policy of wetland functions and values contained in Texas Parks and Wildlife Code §14.002 and the goals and policies of the Texas Coastal Management Program contained in 31 TAC §501.14. The term is also used in the underlying statute, Texas Water Code §11.152.

Tarrant Regional commented that the proposed definition of "priority" contained in §297.1(35) is inappropriate because it is a generic term that may be applicable to many things, not just to the prior appropriation principle of "first in time, first in right."

The commission disagrees with the comment because the definition is needed to clarify how that term is used for the specific purposes of the rule.

Henry, Lowerre commented that the proposed definition in §297.1(37), Definitions, for "recreational use" invites confusion in its reference to "non-domestic use of aquatic and wildlife resources" and is unclear how it relates to the additions to the definition of "livestock use" regarding game animals and fur-bearing animals. Similarly, the commenter stated that the definition of "recreational use" and "industrial use" seem to overlap with respect to aquatic resources. The commenter presumes that "recreational use" is intended to have a more limited context than the livestock or industrial use categories with respect to aquatic and wildlife resources, but the distinction seems unclear.

The commission agrees that the definitions and their applicability could be made more clear. The intent of the proposed changes was to make clear that aquatic and wildlife enjoyment is included within the domestic use associated with domestic and livestock reservoirs exempt from permitting under Texas Water Code §11.142. However, for such use to be exempt, compensation cannot be given or received for aquatic and wildlife enjoyment. If so, a permit must be obtained. For example, a business where people are allowed to fish in a pond for a fee would be a recreational use for which a permit is required. If the reservoir is used to raise fish to be harvested and sold commercially, then a permit would be required for this industrial use of water. In addition, the changes were to make clear that the incidental use of reservoirs by free-ranging wild game and fur-bearing animals that may be harvested by hunters and trappers who pay a fee to hunt or trap on the property does not constitute a recreational use for which a permit must be obtained for an otherwise exempt domestic and livestock reservoir. Accordingly, the commission has revised the definitions for "recreational use" and §297.21, Domestic and Livestock Use, to make this intent more clear.

The City of Dallas commented that the proposed definition of "reservoir system operations" contained in §297.1(39) be amended by adding the words "or a reservoir and river stream segment" after the words "more than one reservoir."

The commission has interpreted the comment to refer to a reservoir in combination with a direct diversion facility and has changed the rule accordingly.

Henry, Lowerre commented that the definition of "state water," specifically the reference to a "state watercourse," invites confusion since no definition is provided for a "state watercourse." The commenter also states that the last sentence does not appear to advance the clarity of the definition.

The commission responds that what constitutes a state watercourse is derived from the definition of "state water" and "watercourse"; i.e., state water in a watercourse. It is not limited by state ownership of the bed and banks. In order to make this more clear, the word "state" preceding watercourse has been deleted. With regard to the last sentence, the purpose of the change is to make clear that state water does not lose its characteristic as state water simply because it has been injected into the ground for an aquifer storage and recovery project. It is to also make clear that the state retains the ability to ensure that the water is put to beneficial use in accordance with the water right after it has been retrieved and used by the permittee.

Additionally, diffuse surface runoff from rainfall, percolating groundwater seepage, and percolating groundwater before it erupts from a spring and before it enters a watercourse is not state water. The commission has revised the definition of "state water" to clarify its intent.

Henry, Lowerre commented that the definition of "unappropriated water" contained in proposed §297.1 also includes a requirement for the passage of flows needed to meet all applicable instream and inflow requirements.

The commission disagrees with the comment because the definition describes the total remaining unappropriated water to meet both consumptive as well as instream use and freshwater inflow needs. Additionally, the comment presumes the result of the balancing test between these needs to be performed under Texas Water Code, §11.147. Finally, the commission's ability to assess environmental impacts when evaluating applications for new and amended water rights and to impose related conditions on such rights, if appropriate, is clearly set forth under §297.42(b), Water Availability.

Brown & Potts, L.L.P., commented that the proposed definition for "surplus water" in §297.1(49) refers to water taken from "any source" and, therefore, may relate to groundwater for which the commission does not have authority to regulate its use.

The commission disagrees with the comment because the definition includes water taken by an appropriator, and appropriator relates to a person authorized to appropriate state water. In addition, the applicability of the chapter and the commission's authority over state water is stated numerous times throughout the chapter.

TWDB commented that the proposed definition for "unappropriated" water contained in §297.1(50) be revised so that the word "state" precedes "water".

The commission agrees with the comment because an appropriation for purposes of Chapters 295 and 297 relates to state water.

Bexar Met commented that groundwater based sources should be addressed with respect to granting a water right for storage under §297.11, General Authorization to Divert, Store, or Use State Water, Texas Water Code, §11.121, and include water quality criteria with respect to water proposed for underground injection.

The commission disagrees with this comment because §297.11 relates to the diversion, storage, or use of state-owned surface water, rather than groundwater, and water quality criteria for underground injection is provided in Chapter 331 of this title (relating to Underground Injection Control).

AGC comments that proposed §297.13 should be clarified by providing that a temporary permit may be suspended only in accordance with the terms of the permit.

The commission disagrees with the comment because the commission continues to have oversight authority after the issuance of the water right to ensure compliance with the law. Actions the commission may take to administer and enforce water rights are not limited by the express provisions in the permit but are also provided by statute including, but not limited to, Texas Water Code §5.013(a)(1) and 11.327(b).

AGC commented that proposed §297.13 should be amended to provide that the commission may issue a temporary permit without notice and hearing, rather than notice or hearing.

The commission agrees and has revised the rule accordingly.

Henry, Lowerre and Brown McCarroll commented that §297.13, Temporary Permit Under the Texas Water Code, §§11.138 and 11.153-11.155, appeared to have a typographical error in referring to a"commissioner" who may issue a temporary permit, rather than commission. Additionally, TPWD commented that all three commissioners should be involved in a decision that may affect senior water right holders.

The commission disagrees with the comment. Texas Water Code, §11.138, provides that the commission may, by appropriate order, authorize any member of the commission to approve and issue temporary permits without notice and hearing if it appears that sufficient water is available and authorizes not more than 10 acre-feet of water for not more than one year. The order adopting these rules is also the order authorizing any one commissioner to issue such permits.

AGC commented that proposed §297.13(d) should be amended to provide that a registration for a temporary permit may be denied for failure to meet the requirements of Texas Water Code §11.138, rather than the requirements of the rule.

The commission disagrees with the comment because the rule also contains the definitions and implementation procedures for the statute.

TPWD commented that §297.13 should provide that the commission may place conditions in a temporary permit as appropriate to protect environmental flow needs.

The commission agrees and has revised the rule accordingly.

Tarrant Regional commented that the intent of reinstituting the contractual permit in proposed §297.14 is unclear.

The commission responds that the intent of reinstating language regarding contractual permits is to allow for the streamlined review and approval of such actions if the underlying water right already authorizes such contracts. Under the rule, the commission staff would simply review the contract to ensure it was consistent with the underlying water right . No formal commission review and approval would be required. However, if the contract provided for a different location of use or diversion point, for example, either the underlying water right would have to be amended or a contractual permit obtained by the buyer.

Bexar Met commented that proposed §297.16, Conveyance of Water Down Bed and Banks, should include groundwater other than of effluent quality.

The commission responds that such conveyance of groundwater other than effluent is covered under subsection (b) of §297.16, relating to the conveyance of water in general.

North Richland Hills commented that proposed §297.16, Conveyance of Water Down Bed and Banks, should be amended to provide that the reuse of wastewater plant discharges should be the right of the parties who have the NPDES permit and should not be restricted.

The commission disagrees with the comment because such reuse may be expressly limited by the underlying water right or by conditions necessary to protect existing water right holders and environmental flow needs as provided by Texas Water Code §§11.042 and 11.046.

Henry, Lowerre commented that proposed §297.16(a) should be clarified by stating that special conditions to help maintain instream uses and freshwater may be included in a water right as provided by Texas Water Code §§11.147, 11.150, and 11.152.

The commission agrees with the comment and has revised the rule accordingly.

Henry, Lowerre commented that proposed §297.16(c) should be clarified by making it consistent with the water quality antidegradation policy contained in §307.5 of this title (relating to Texas Surface Water Quality Standards). The policy provides that existing uses be protected and that no activities subject to regulatory action which would cause degradation of waters which exceed fishable/swimmable quality will be allowed unless it can be shown that the lowering of water quality is necessary for important economic or social development. Degradation is defined as a lowering of water quality to more than a de minimus extent, but not to the extent that an existing use is impaired. Finally, the policy provides that the quality of outstanding national resource waters will be maintained and protected.

The commission agrees with the comment and has revised the rule to provide that it will be implemented consistent with the state antidegradation policy contained in §307.5.

Henry, Lowerre also commented that the last sentence in proposed §297.16(c) should be clarified to provide that nothing in the chapter affects the obligation to obtain the appropriate water quality permit.

The commission agrees with the comment and has revised the rule accordingly.

Tarrant Regional and an individual commented that proposed §297.16 generally tracks the statutory language and that the commission should elaborate on the circumstances that it would authorize indirect reuse under a bed and banks permit and placing conditions on such bed and banks permits. Tarrant Regional further provides specific rule language providing recommended factors.

The commission responds that the underlying statutes, Texas Water Code §§11.042 and 11.046, and the applicable rules of this chapter taken together, adequately provide the factors the commission is to consider when determining bed and banks permitting decisions. Therefore, the inclusion in the rule of additional factors recommended by the commenter would be unnecessary and confusing. If necessary , the commission may revise the regulatory guidance document to provide further description of the technical assessment that will need to be done based upon the statutory considerations.

Tarrant Regional commented that it is unclear why previous language in §297.16 relating to optimum development projects under Texas Water Code, §11.140, was proposed for deletion because it was redundant of other rules.

The commission responds that Texas Water Code, §11.140, simply provides that the commission may issue permits for storage solely for the purpose of optimum development of projects. The statute further provides that the commission may convert these permits to permits for beneficial use if application to have them converted is made to the commission. The criteria and procedures for the review and approval of these projects and subsequent amendments would be the same as the general criteria and procedures provided under Chapters 295 and 297 of this title.

Brown & Potts, L.L.P., commented that it is unclear in proposed §297.17 whether the terms "affected person," "affected water right holder," and "water right holders for whom the water is being transferred" are synonymous and, if so, they should all be referred to by using a consistent term.

The commission responds that the terms may be synonymous in many instances but not exclusive since there may be other affected persons as that term is defined under Texas Water Code §5.115 besides water right holders or water right holders from whom the water is being transferred.

Brown & Potts, L.L.P., comments that proposed §297.17 contains inconsistent references to the executive director and the commission.

The commission disagrees with the comment. The use of the two separate terms is to identify emergency authorizations for which the executive director is authorized to make under Texas Water Code §11.139(f).

The City of Dallas commented that proposed §297.17(a) relating to Emergency Authorization (Texas Water Code §11.139) be clarified to read that the authorization may relate to the emergency use of water appropriated "by someone other than the applicant" rather than simply by "another".

The commission agrees with the comment and has revised the rule accordingly.

AECT and TU commented that proposed §297.17(b), Emergency Authorization, should be revised by deleting whether the purchase of water or a water right at a "reasonable price" should constitute a practical alternative to the emergency transfer of water. The commenter explained that the emergency authorization process should be a path of last resort and not triggered if one party in need of additional water makes a determination that the cost of alternative water is "too high." Rather, the party in need should provide the quoted water cost to the commissioners as the basis that no additional water is available.

The commission agrees that the rule needs clarification as to whether the purchase of water or a water right is a practical alternative to an emergency transfer of water. Therefore, the rule is amended to require the applicant to provide information on whether such purchase was available at a reasonable as well as affordable price to the applicant.

Brown & Potts, L.L.P., commented that proposed 297.17(e) providing that the commission shall issue an order directing water right holders from whom water is being transferred to curtail their use of water should only be issued after notice and opportunity for hearing has been provided to affected water right holders.

The commission responds that such notice and opportunity for hearing is already provided under subsection (e) of the rule providing that such notice and hearing shall be provided in accordance with Chapter 2001 of the Texas Government Code, pursuant to Texas Water Code §11.139. This provides that affected persons be provided notice and opportunity for a hearing on whether to affirm, modify or set aside the initial emergency authorization. At that hearing, the order directing affected water right holders to curtail their use would also be considered, and notice of this would be included in the notice of the hearing provided to the affected water right holders. Such affected persons would include water right holders from whom the water is being transferred.

The City of Dallas commented that proposed §297.17(h) be clarified to provide that the order requiring the applicant to timely pay the amounts for which the applicant may be liable to be couched in terms using the current rather than future tense.

The commission agrees with the comment and has revised the rule accordingly.

AECT, and TU comments that proposed §297.17(k) should be amended by providing that if the emergency transfer of water is to be made, the allocation to be made among two or more water right holders should not exclude domestic or municipal water right holders.

The commission disagrees with the comment because Texas Water Code §11.139 expressly excludes domestic and municipal water right holders from those among whom the burden of the transfer may fall.

Brown McCarroll and Brown & Potts, L.L.P., commented that proposed §297.17(l), Emergency Authorization (Texas Water Code, §11.139) should be amended to provide that the person receiving an emergency transfer of water is liable to the water right holder from whom the water is being transferred for the fair market value of the water and related damages regardless of whether the water was being used by the water right holder or whether financial commitments by the water right holder would be jeopardized. Similarly, Tarrant Regional commented that it is bad policy to look first to having water transferred from unused water rights and not provide them compensation because there is an assumption that the rights are not being used because of low flow drought conditions. Tarrant Regional recommends that these holders of unused water rights be provided an opportunity to demonstrate the circumstances of their non-use and whether they are entitled to compensation under Texas Water Code, §11.139.

The commission disagrees with the comment by Tarrant Regional that it is bad policy to first examine whether unused appropriated water is available to meet the transfer request because the comment does not take into account the ability to issue term permits pursuant to Texas Water Code, 11.1381. Section 11.1381 provides that the commission may issue a term permit to the extent that it would not interfere with the use of an existing water right holder or jeopardize existing financial commitments. Generally, if there is unused water available, the applicant could obtain a term permit, thus avoiding the consequences to water right holders discussed by Tarrant Regional. If a request for water is submitted, the commission would determine first whether appropriated but unused water is available to meet the emergency need. If such water is available, the option of obtaining a term permit would be made known to the applicant and, if pursued, would follow the procedures applicable to the issuance of a term permit. However, if the applicant indicates that the water is needed on a more immediate timeframe, then procedures for the issuance of an emergency transfer would be followed, including the applicant being liable for the fair market value of the water whether it was being used or had related financial commitments. Not to provide this option to the applicant and to automatically require the payment of fair market value and damages to a water right holder when conditions exist to grant a term permit would nullify the existence of §11.1381, provide unwarranted windfall profits to the water right holder, improperly reward the nonuse of available water by a water right holder, and unreasonably penalize a person facing an emergency need for water. The commission agrees with the other comments recommending that if an emergency transfer is granted, the transferee is liable for the fair market value of the water and damages, if any, under Texas Water Code §11.139 and has clarified this in the rules.

Brown McCarroll commented that §297.17, Emergency Authorization (Texas Water Code, §11.139), should be clarified that a person receiving an emergency transfer of water under Texas Water Code, §11.139 is liable to the water right holder from whom the water is being transferred for the fair market value of the water as well as any damages caused to the water right holder by the transfer, such as loss of production due to inadequate water for manufacturing or jeopardy to some existing financial commitment of the water right holder. The commenter also stated that additional guidance was needed in determining what constituted fair market value for this purpose.

The commission agrees with the comment and has revised the rule to expressly include a statement that the transferee is liable for the fair market value of the water transferred as well as any damages and that fair market value will be determined in accordance with Texas Water Code, §11.0275.

The City of Dallas commented that proposed §297.17(m) be clarified to state that the commission's designation of affected water right holders under this section does not preclude other water right holders from "establishing," rather than "demonstrating," the impact of the transfer.

The commission agrees with the comment and has revised the rule accordingly.

AECT and City of Dallas comments that the correct citation of exhaustion of administrative remedies in proposed §297.17(n) should be subsections (l) and (m).

The commission agrees with this comment and has revised the rule accordingly.

The City of Dallas recommended adding two sentences to §297.17(o) which would clarify that: 1) emergency authorizations could be suspended in order to protect senior water rights; and 2) the commission could include provisions for the protection of instream uses, water quality, aquatic and wildlife habitat, and freshwater inflows to bays and estuaries.

The commission has modified the rule to clarify that emergency authorizations may be suspended to protect senior water rights. The commission agrees that emergency authorizations may include provisions for environmental flows for the protection of instream uses, water quality, aquatic and wildlife habitat, and freshwater inflows to the bays and estuaries. However, some of these needs may be secondary to the emergency use because public health and safety take precedent over all other discretionary uses of water. The commission would also consider the time it would take to assess and identify environmental flow needs which could preclude the conditioning of an emergency authorization if it would result in a significant delay in the delivery of the water for the identified emergency situation. Accordingly, the emergency use of water shall be consistent with any environmental conditions placed on the water right from which the water is being transferred. Any conditions placed on an emergency authorization to protect instream uses related to public health and safety (including, but not limited to water quality) would require the commission to weigh all relevant factors. The rule has been amended to clarify this intent.

Azurix commented that §297.18 should be amended to "grandfather" transfers that were between river basins under previous TWDB definitions or delineations prior to the passage of Senate Bill 1.

The commission responds that this is unnecessary since, by law, rules and law that were in effect at the time the application was submitted were applied in the review and action on the application. Interbasin transfer permittees who received authorization prior to the effective date of Senate Bill 1 changes to Texas Water Code §11.085 and who do not request an amendment will not be subject to any new application requirements.

The City of Dallas commented that the word "for" should be inserted between the words "applying" and "and" in the first sentence of proposed §297.18(a) for grammatical purposes.

The commission agrees with this comment and has revised the rule accordingly.

The City of Victoria commented that proposed §297.18(b), Interbasin Transfers, should be amended to provide that a change in place or purpose of use for an existing interbasin transfer constitutes a new interbasin transfer for which additional requirements should apply.

The commission disagrees with this comment because the additional requirements for a new transfer seek to address the impacts of a new loss of water from the basin of origin, not on a transfer of water that has already been authorized. In the case of a change in purpose or location of use for an already authorized transfer, impacts from the transfer itself have already been assessed and addressed when the original transfer was granted. Changes in purpose of use or place of use for water that has already left the basin of origin would not have any greater impact on the basin of origin than the original transfer. Whether there is a justified need for the change in purpose or place of use are already addressed under Texas Water Code §11.085(j) making applicable Texas Water Code §§11.122, 11.1271, 11.134 and other Code provisions generally applicable to an application for an amended water right. However, in response to the comment, the commission has clarified that a change in place of use to a third basin not currently authorized, constitutes a new interbasin transfer so that impacts of the transfer to the third basin on the previously authorized receiving basin may be assessed, unless otherwise exempt.

Azurix commented that proposed §297.18(c) should include the provisions that the comments by county judges be considered by the commission in its review and action on an interbasin transfer as required by Texas Water Code §11.085(j).

The commission responds that this provision is already contained in §297.18(c)(5).

Brown & Potts, L.L.P., commented that proposed §297.18(c)(5) providing that the commission will give consideration to the comments of county judges as well as weigh the effects of the scientific and technical issues is contrary to Senate Bill 1 because the comments by county judges will be hearsay opinions, not based on fact or technical expertise, and not subject to cross-examination.

The commission disagrees with the comment. Section 11.085 of the Water Code not only requires the commission to weigh the technical aspects of the application but also the social and economic impacts. Section 11.085(j)(2) expressly requires the commission to give consideration to the comments of each county judge of a country located in whole or in part in either the basin of origin or destination. As elected representatives, county judges may provide useful information on the less technical aspects of the balancing test between the detriments and benefits to the two basins. Finally, nothing in the rule or underlying statute prescribes what weight to give such comments vis a vis other factors. In evidentiary hearings, such comments will be provided appropriate weight under applicable rules of evidence.

AECT comments it is in strong support of the term language in §297.18(h), Interbasin Transfers, and the return of the interbasin transfer water to its original priority date in the basin of origin upon expiration of the term period.

The commission acknowledges the comment.

Henry, Lowerre commented that proposed §297.18(j), Interbasin Transfers, Texas Water Code, §11.085, providing that a municipal water right holder may be a party in a hearing on the application, should not be construed as adversely affecting the ability of any other potentially affected person to obtain party status.

The commission agrees with this comment and has revised the rule accordingly.

Henry, Lowerre commented that proposed §297.19(b), Term Permit under Texas Water Code, §§11.1381 and 11.153-11.155, would be more clear if it stated that the commission may deny or condition an application for reasons applicable to any water right application.

The commission agrees with the comment and has revised the rule accordingly.

AECT comments that proposed §297.19(b)(2) should be amended to provide that an application for a term permit be denied if it would interfere with a water right holder's authorized use of water for electric generation needs.

The commission agrees with the comment because interference with the exercise of a water right for any authorized purpose, including electrical general needs, would be grounds to deny a term permit under Texas Water Code, §11.139 and, therefore, the rule has been revised accordingly.

TPWD commented that proposed §297.19(b) be clarified by providing that a term permit may be denied if it will interfere or adversely affect environmental flow needs.

The commission responds that conditions in the permit may be provided in the permit for this purpose pursuant to Texas Water Code §§11.134(b)(3)(C), 11.147, 11.150 and 11.152 and has revised the rule to clarify this.

An individual commented that proposed §297.21 should delete the authority for someone to build an off-channel domestic and livestock reservoir exempt from permitting.

The commission disagrees with the comment because the underlying statute for the rule, Texas Water Code §11.142, provides that such a reservoir must be on the person's land but does not limit it to being on-channel. Additionally, such reservoir may not be built on navigable streams.

Brown & Potts, L.L.P., commented that the use of the term "riparian" in proposed §297.21 is confusing and needs further clarification.

The commission agrees with the comment and has revised the rule accordingly. An individual commented that proposed §297.21 should be revised by adding a definition for "riparian".

The commission responds that the rule has been revised to more clearly describe how the term is used in the rule.

AECT comments that proposed §297.21(a), Domestic and Livestock Use, should be amended by providing that releases of water stored in reservoirs to meet downstream water supply contracts are not subject to diversion or use for vested riparian domestic and livestock purposes.

The commission agrees with the comment because a riparian water right holder is entitled only to the reasonable use of the normal flow of the stream, and has revised the rule accordingly. However, because such vested riparian rights are not required to register with or report their use to the commission, enforcement of such a provision is problematic.

The Cattle Raisers commented that proposed §297.21(b) should be clarified that the permit and permit exemption provisions relating to domestic and livestock reservoirs relate only to the storage of state water, and are not privately-owned water such as diffuse surface runoff collected in a stock pond.

The commission agrees with this comment and has revised the rule accordingly.

Henry, Lowerre commented that proposed §297.24, Permit Exemption for Mariculture Activities, should be amended to require that the notice include a justification for determining that the amount to be diverted is an "appropriate amount" as provided under Texas Water Code, 11.1421. Additionally, TPWD comments that proposed §297.24, Permit Exemptions for Mariculture Activities, be clarified to provide that after notice and hearing, if the commission determines that low freshwater inflows are interfering with estuarine productivity, the commission shall issue an order requiring the interruption or reduction of the use of water.

The commission agrees with the comments and has revised the rule accordingly.

Brown & Potts, L.L.P., commented that the commission does not have the authority to deny a water right application or reserve water from appropriation in order to maintain or protect environmental flow needs. In addition, Brown & Potts, L.L.P., commented that the commission does not have authority to assess estuary impacts beyond 200 stream miles for the coast.

The commission disagrees with this comment. Texas Water Code §§11.122, 11.134, 11.147, 11.150 and 11.152 expressly provide that the commission may assess such impacts when reviewing and taking action on an application. In performing this assessment, the commission is to weigh the request with such impacts. If the environmental impacts outweigh the request, the commission may find the application detrimental to the public welfare and deny the application or place conditions on the permit to avoid or mitigate such impacts. The effect of either option is to reserve water from appropriation. In addition, Texas Water Code §11.147 mandates that commission to assess bay and estuary impacts on applications within 200 stream miles of the coast, but does not preclude such consideration of other applications. To assess such applications for aquatic and wildlife habitat would also be consistent with other provisions §11.147 as well as §§11.134(b)(3)(C) and 11.152.

BRA comments that proposed §297.21(b), Domestic and Livestock Use, should be amended by deleting the reference to "normal" storage and replacing it with "conservation" storage.

The commission disagrees with the comment because the term "normal" storage is used in the underlying statute, Texas Water Code, §11.142. However, the commission has included a definition for what constitutes "normal" storage by providing that it is the conservation storage of the reservoir and further defines this term.

TWCA and Tarrant Regional commented that proposed §297.42(b) should be clarified to read that a water right may be conditioned as appropriate to protect instream uses, after considering all factors provided under Texas Water Code, §11.134(b)(3)(C), §11.147, and §11.150.

The commission agrees with the comment and has amended the rule accordingly.

TPWD commented that it is concerned that allowing an appropriation where less than 75% of the water is available less than 75% of the time will lead to the over-appropriation of streams.

The commission disagrees with the comment because the commission places limits on new appropriations to prevent over-appropriation and resulting impacts to senior water rights or environmental flow needs. In addition, the 75% rule of thumb is intended to be flexible because it is based upon an average percentage of amount and time of water availability needed for a viable irrigation use based upon cases determined during the adjudication of water right claims. However, it does not take into account other purposes by use that may be viable at lesser or greater percentages and/or that also rely on alternative sources of water supply.

AECT comments that it strongly supports limiting the applicability of §297.42(b), Water Availability, to new water rights as provided in the rule.

The commission acknowledges the comment.

TWDB commented that proposed §297.42(c) should be revised to provide that the 75% rule of thumb for direct diversion projects should also apply to those with on-channel storage capability as well as off-channel storage capability.

The commission agrees with this comment and has revised the rule accordingly.

The City of Dallas commented that proposed §297.42(d) be amended by adding that a system operation in conjunction with other water rights may also be a project that does not require the continuous availability of historic, normal stream flow.

The commission agrees with this comment and has revised the rule accordingly.

BRA comments that proposed §297.42(e), Water Availability, should be revised by providing that for an application for a municipal or domestic water right to be approved, the diversion right, rather than the yield, must be equal to its firm yield.

The commission agrees with this comment and has revised the rule accordingly.

Tarrant Regional commented that proposed §297.42(g) should be revised to delete the reference to "direct" reuse and simply refer to the cessation of flow for any lawful reason.

The commission disagrees with the comment because the reference to direct reuse is to provide one of many examples under which flows may be diminished. Such examples also assist in the reader's understanding of the rule. The rule also makes clear that this example is not exclusive by also providing that flows may be diminished for other lawful reasons.

Tarrant Regional also commented that it is unclear how the commission staff will decide if return flows may cease in the future under proposed §297.42(g) in order to provide the permittee the caveat that the permit has been granted based upon an interruptible water supply.

The commission responds that for the water availability analysis for a new water right application, it will be assumed that existing water rights without specific return flow requirements or other limits on direct reuse will be able to directly reuse and consume the entire appropriative amount as authorized by the water right, resulting in no return flows. In cases where no water is available for a new water right except for these potentially, interruptible return flows, the permit will contain a condition providing that this was the basis for granting the water right on an interruptible basis.

TPWD comments that proposed §297.43, Beneficial Uses, be revised to specifically include instream uses as a beneficial use.

The commission responds that the existing list includes specific instream uses such as navigation, recreation and pleasure, aesthetics, public parks, game preserves, and hydro-electric generation. In addition, these uses would include water quality, aquatic and wildlife habitat, and freshwater inflows to bays and estuaries necessary for the listed instream uses other than navigation and hydro-electric generation. However, the commission has further clarified the provision referencing beneficial uses recognized by other law by including instream uses also recognized under Texas Water Code §§11.147 and 15.7031. This is also consistent with the existing definition of instream use contained in §297.1 of this title (relating to Definitions) specifically providing that an instream use is a beneficial use of water.

Tarrant Regional commented that administrative completeness of an application for purposes of time priority contained in proposed §297.44(c) should be further clarified to provide that clear and objective criteria for such a determination will be used by commission staff.

The commission disagrees with the comment because such criteria already exist in other commission rules. The proposed rule is based on existing §295.201(b) and §281.17 of this title relating to Filing and Instruments and Notice of Receipt of Application and Declaration of Administrative Completeness, respectively. The latter provides a detailed list of what constitutes an administratively complete application and the former provides that the commission will not formally accept an application until it has met the administrative completeness requirements provided under §281.17.

Henry, Lowerre commented that subsection (a) of proposed §297.45, "No Injury" Rule, would be more clear if it acknowledged that the limitations on approval of a new or amended water right are in addition to the other limitations that also apply to such applications; for example, protection of water quality and fish and wildlife resources.

The commission agrees and has revised the rule accordingly to make clear that the section relates only to impacts to existing water rights and is not exclusive of other requirements that may apply, including the assessment of environmental impacts.

BRA comments that proposed §297.45(a), "No Injury" Rule, should be clarified to provide that changes in stream conditions necessary to constitute an adverse impact to other water right holders would be those changes in addition to those that would have occurred with the full exercise of senior water rights.

The commission disagrees with the comment because the conditions under which the "four corners" analysis shall be applied to proposed water right amendments are provided under §297.45.

TPWD commented that proposed §297.45(a) should be amended to include impacts to aquatic and wildlife habitat.

The commission disagrees with the comments because the provision relates only to the assessment of impacts to other water right holders. The assessment of environmental impacts are addressed by subsequent sections in the chapter including §§297.46, 297.47, 297.53, 297.54, 297.55 and 297.56.

The City of Dallas commented that proposed §297.45, "No Injury" rule, be amended to provide that nothing in this section is intended to limit changes in return flow discharge points where the change is needed to improve water quality or public health risk, or where the return flow did not exist when the affected water right was granted.

The commission disagrees with the comment because it is inconsistent with Texas Water Code §11.046(b) providing that the commission may include conditions in a water right providing for the return of surplus water, in a specific amount or percentage of water diverted, and the return point on a watercourse or stream as necessary to protect senior downstream water rights or to provide flows for instream uses or bays and estuaries. In addition, the commission may require flows to be returned in order to protect senior water rights pursuant to Texas Water Code §11.1351. The commission has revised the rule to incorporate these provisions.

The City of Dallas commented that §297.45(b) should be amended by adding the following sentence at the end of that subsection: "However, if the water right was not limited according to §297.42(e), then the adverse impact should consider the firm yield of the water right."

The commission has made no changes in response to this comment. In the commission's analysis of potential adverse impacts to existing water rights as provided in the adopted §297.45, the commission will look to the "four corners" of existing water rights. What water the commission finds available for permitting will depend on the specific fact situation of the application and will, therefore, be decided on a cases by case basis. The proposed language by the City of Dallas does not further clarify the subsection. Accordingly, no changes have been made to the rule.

The Cattle Raisers commented that the commission has no specific statutory authority to require a public welfare evaluation or social, economic, or environmental impact statements for purposes of water rights applications as provided under proposed §297.46.

The commission disagrees with the comment. Section 11.134(b)(3)(c) of the Texas Water Code expressly provides that the commission shall grant a water right application only if it is not detrimental to the public welfare. Since the burden is on the applicant to meet all application requirements, it is reasonable and necessary to require the applicant to submit supporting information.

TIC commented that proposed §297.46, consideration of Public Welfare, and §297.47, Impact on Groundwater, should be revised by providing that an amendment to a water right that does not have a greater impact on the public welfare or groundwater than the full, legal exercise of the water right prior to the amendment, must be granted pursuant to Texas Water Code §11.122(b). By not doing so, the commenter states, the rules could hinder the marketing of water rights.

The commission disagrees with the comment. Section 11.122(b) of the Water Code provides that with respect to impacts to existing water rights or instream uses and freshwater inflows, an amendment other than an increase in the appropriative amount or diversion rate shall be authorized if the requested change will not result in a greater impact on existing water right rights or the environment than the full, legal exercise of the water right prior to its amendment. However, with respect to criteria other than water right and environmental impacts, the statute states that the application is subject to meeting all other applicable requirements of Chapter 11 of the Water Code including, but not limited to, the assessment of groundwater impacts, conservation and the avoidance of waste, and public welfare considerations provided under Texas Water Code §11.134.

TPWD commented that it supports the adoption of §297.47(c) relating to Impacts of Groundwater.

The commission acknowledges the comment.

AECT comments that the applicability of proposed §297.47, Impacts on Groundwater, be limited to applications for new water rights and an amendment to an existing water right that would increase the appropriative amount.

The commission disagrees with the comment because the applicability of Texas Water Code §§11.134 and 11.1501 are not limited as suggested and changes in purpose of use to a more consumptive use or changes in the points of diversion also have the potential to significantly impact groundwater by reducing recharge amounts and location.

Brown & Potts, L.L.P., comments that there is no Senate Bill 1 provision requiring or statutory authority for proposed §297.48.

The commission responds that the notice and scope of rulemaking is not limited to only implementing Senate Bill 1 but to also implement by rule all provisions of Chapter 11 of the Water Code, where appropriate, and to provide in rule form all related policies and guidance as required by Texas Water Code §5.103. The waste of water not contributing a beneficial use of water is based upon the definition of "beneficial use" contained in Texas Water Code §11.002.

Brown & Potts, L.L.P., commented that proposed §297.49 be amended to provide that return flows of surplus water may not be used for environmental flows without an express reservation or other act by the commission.

The commission disagrees with the comment because return flows in a stream will have environmental benefits whether the commission takes an official act recognizing this or not.

TPWD commented that it supports the adoption of proposed §297.49, Return of Surplus Waters.

The commission acknowledges the comment.

AECT and TU comment that proposed §297.49, Return and Surplus Waters, be amended to provide that water recirculated within a reservoir for cooling purposes shall not be considered to be surplus water.

The commission agrees with the comment because it is consistent with Texas Water Code §11.046(d) and has revised the rule accordingly.

TWDB and Brown & Potts, L.L.P., commented that the requirement in proposed §297.49(c) that the discharge of return waters shall not impair an existing or potential beneficial use of groundwater as to its water quality significantly expands the provision of Senate Bill 1 and is particularly onerous.

The commission disagrees with the comment. The protection of existing and beneficial uses of groundwater is consistent with §26.401(c) of the Water Code providing that discharges subject to regulation by state agencies be conducted in a manner that will maintain present uses and not impair potential uses of groundwater or pose a public health hazard.

TPWD commented that it supports the adoption of proposed §297.50, Water Use Measurement.

The commission acknowledges the comment.

The City of Dallas commented that proposed §297.50(b) be clarified to provide that the use of a water source which in itself is not a dependable water supply is a conservation practice because using this water where it is available reduces and thus, conserves the use of the dependable supply.

The commission disagrees with the comment because the use first of an available, non- dependable water supply is a drought management measure, rather than a conservation measure that provides the overall reduction in the use of water by reducing waste and using water more efficiently as defined by Texas Water Code §11.002(8).

TWDB and Brown & Potts, L.L.P., commented that the requirement under proposed §297.50(b)(3) that an applicant must prove that no feasible alternative exists to the requested appropriation is too burdensome because it exceeds commission authority and such alternatives may be too costly from either a financial or environmental viewpoint. Specifically, SAWS commented that it found no legislative support for a burden of proof that an applicant show that "no feasible alternative" to the proposed appropriation existed in order to have the appropriation authorized. SAWS stated that it agrees that applicants for appropriations bear the burden of proof to show that they have evaluated all feasible alternatives and that the alternative selected is reasonable and necessary. However, SAWS expressed concern that the language in the proposed rule may allow a protestant to argue that there was some other feasible alternative, which the applicant may have chosen not to pursue for any variety of legitimate reasons and, therefore, the application should be denied under the concept embodied in the proposed rule is untenable. TWDB further comments that the imposition of this standard would create a situation where no permits would be granted, as there almost always are other options even through they are not acceptable to the applicant.

The commission disagrees, in part, with these comments. In its review and action on a water right application, the commission must determine whether the application is intended for a beneficial use and whether the applicant has provided evidence that reasonable diligence will be used to avoid waste and achieve water conservation. "Beneficial use" is defined by Texas Water Code §11.002(4) to mean the use of that amount of water which is economically necessary for a purpose authorized by law when reasonable intelligence and diligence are used in applying the water to that purpose. "Conservation" is defined in Texas Water Code §11.002(8) to include those practices, techniques and technologies that will reduce the consumption and loss of water and improve efficiency in the use of water. These standards have been in place prior to this rule adoption and the current rule adoption does not impose this as a new requirement, but simply renumbers an existing requirement. Under this standard, numerous water right applications have been approved. The term "feasible" allows the applicant to provide information as to financial and environmental costs associated with options and whether the requested appropriation is the most cost-effective and environmentally sensitive option to meet applicant's water needs. Information submitted under the beneficial use and conservation standard will also help the commission determine whether the amount requested is reasonable and necessary for the proposed purpose. The burden is appropriately on the applicant as the petitioner for a favorable action on the application as well as the party with the best and most complete access to this information to support the application. However, to avoid confusion and to distinguish the broader practical alternatives test that may be applied under the public welfare criteria contained under §297.46, and pursuant to Texas Water Code, §11.134(b)(3)(c), §297.50(b)(3) has been revised to delete the reference to this broader test and to just provide how the conservation plan is used to determine whether the need for the water and the requested amount are reasonable and necessary considering the efforts made by the applicant to conserve water and avoid waste. This deletion is not intended to remove an existing requirement that the applicant bears the burden to demonstrate that the applicant has examined practical alternatives to the proposed project to determine whether there exists practical alternatives that are less impacting to the available supply of water and the environment and that are also cost effective to the applicant.

AECT comments that it is in support of proposed §297.50(c). Consideration of Water Conservation Plan, allowing the executive director or watermaster to waive the 5% measurement accuracy requirement because many existing water rights have historically measured diversions using alternative measuring methods such as pump curves and water balances and hopes the approval process for such waivers does not unduly burden the water right holder.

The commission acknowledges the comment and responds that this provision is similar to that contained in Chapter 303 and 304 of this title (relating to Watermaster Operations). Past experience and implementation of this provision has shown the approval process to be relatively short and simple because such acceptable alternative measuring methods such as the one mentioned in the comment are widely known and have been previously approved.

Brown McCarroll and TWCA commented that proposed §297.53, Habitat Mitigation, be amended to remove language providing the steps and criteria used for the habitat mitigation assessment of a water right application pursuant to Texas Water Code §11.152. Brown McCarroll commented that the statute does not provide the authority for such an "exhaustive" analysis and mitigation as provided in the proposed rule and is essentially duplicative of requirements of the U.S. Corps of Engineers, under §404 the Clean Water Act. Additionally, both commenters stated that the commission should wait until negotiations with the U.S. Corps of Engineers on a memorandum of agreement relating to §401 certification of Corps permits be finalized before going forward with any guidance on rulemaking on habitat mitigation. For similar reasons, Brown McCarroll requests the definition of "mitigation" in 297.1, Definitions, also be deleted.

The commission disagrees with the comment because the proposed rule is authorized under Texas Water Code §§11.147 and 11.152 and is consistent with related regulatory guidance previously adopted by the commission and published in "A Regulatory Guidance Document For Applications To Divert , Store Or Use State Water" (June 1995). This document was developed in 1994-1995 with the assistance of an earlier ad hoc advisory group. This guidance and rule are based upon Texas Water Code §11.147 and §11.152 providing that the commission may require the applicant to take reasonable actions to mitigate adverse impacts on fish and wildlife habitat. In determining whether to require an applicant to mitigate adverse impacts on a habitat, the statutes provide that the commission may consider any net benefit to the habitat produced by the project and shall offset against any mitigation required by the U.S. Fish & Wildlife Service pursuant to 33 CFR §§320-330. The rule sets forth the specific criteria the commission uses to determine such reasonable actions that would be required to mitigate such impacts, including the consideration of net benefits and mitigation required by the USFWS. The rule is also consistent with the state wetlands policy of "no net loss" of wetlands functions and values provided by Texas Parks and Wildlife Code §14.002(b)(2) and the goals and policies of the Coastal Management Program contained in 31 TAC §501.14. Additionally, the rule seeks to avoid unnecessary conflict with Corps requirements by expressly providing that the commission shall offset against any mitigation required by the U.S. Fish and Wildlife Service pursuant to 33 CFR §§320-330. Although the rules are consistent with a similar analysis conducted under the §401 state water quality standards certification program provided in Chapter 279 of this title (relating to Water Quality Certification), this rule implements state authority provided under Chapter 11 of the Water Code that is independent of §401 as well as broader in scope than determining whether a federal permit may be in violation of State water quality standards. In addition, to defer action on water right applications until finalization of a MOA relating to a different program when there already exists policy and guidance approved by the commission to make such assessments is unwarranted, would cause unnecessary delays, and be inconsistent with Texas Water Code §5.312 providing a time limit for which action must be taken on an application. In addition, Texas Water Code §5.103 requires that the commission adopt rules when adopting or amending any agency statement of general applicability that interprets or prescribes law or policy or describes the procedure or practice requirements of the agency.

AECT, Brown McCarroll and Brown & Potts, L.L.P., commented that proposed §297.53, Habitat Mitigation, should be limited to only those applications requesting a new or increased annual appropriation of 5,000 acre-feet or more.

The commission disagrees with this comment. Texas Water Code §11.152 requires the commission to assess the affects of applications in excess of 5,000 acre feet per year on fish and wildlife habitats but does not preclude the commission from performing such assessments on applications for less than that amount. Texas Water Code §11.147 requires the commission in its review of an application to assess similar impacts on instream uses and freshwater inflows to bays and estuaries, including aquatic and wildlife habitat. There is no numeric qualification contained in 11.147. In reading the two statutes together, the commission has construed §11.152 to be a non-discretionary requirement to assess all applications for 5,000 acre-feet per year or more, rather than an exclusion of projects less than 5,000 acre-feet per year. To conclude the latter would be to create an irreconcilable conflict between the two statutes. Because Texas Water Code §11.152 requires the commission to perform such assessments for applications in excess of 5,000 acre feet per year but allows the commission the discretion to make such assessments for application of lesser amounts, the commission shall also assess the latter because they may also have significant impacts to fish and wildlife habitat, and such assessment would also be consistent with Texas Water Code §11.147.

AECT and the TWDB comments that the reference contained in proposed §297.53(a), Habitat Mitigation, be clarified that it relates to commission consideration of areas of unique ecological value identified by the applicable approved regional water plan and designated as such by the legislature pursuant to Texas Water Code §16.051(e).

The commission agrees with this comment and has revised the rule accordingly to track the statutory language.

TPWD commented that it supports the adoption of proposed §297.55, Estuarine Considerations.

The commission acknowledges the comment.

AECT and the TWDB comments that §297.55(e), Estuarine Consideration, should track the exact statutory language in Texas Water Code §16.1331 and 15.3041 as it relates to the appropriation of five percent (5%) of the annual for yield to Texas Parks & Wildlife Department of reservoir built with state funds after September 1, 1985.

The commission responds that the intent of the proposed rule is to implement Texas Water Code §§16.1331 and 15.3047 as well as §§11.147, 11.150 and 11.152. The former two statutes grant an appropriation to the Texas Parks and Wildlife Department of 5% of the annual firm yield of the reservoir and the latter statutes provide the commission with authority to place environmental conditions on water rights to protect instream uses and freshwater inflows to bays and estuaries. The combined implementation of these provisions may result in more than 5% of the yield being used to meet these environmental needs. However, to avoid confusion between the amount statutorily appropriated to TPWD and the total amount that may be provided to meet environmental needs, the commission has deleted "at least" from the beginning of subsection (c).

An individual commented that proposed §297.56 should include the description of the instream use impact assessment contained in the agency's regulatory guidance document.

The commission disagrees with the comment because the guidance is intended to provide the applicant as well as the public at large the various acceptable methodologies when conducting a project evaluation, rather than to require only one specific methodology in every case.

TPWD commented that it supports the adoption of proposed §297.56, Instream Uses.

The commission acknowledges the comment.

AECT, the Cattle Raisers, and Brown & Potts, L.L.P., commented that proposed §297.56(a), Instream Uses, should be amended by deleting the reference to species other than federally listed species for which the commission may consider requiring conditions in a water right to provide sufficient instream flows.

The commission disagrees with the comment because it does not take into account the overall ecological health and diversity of the stream as contemplated by Texas Water Code, §11.147.

AECT commented that the title to proposed §297.58, Accounting of Water Use: Multiple Uses for the Same Amount, be more general and reflect other provisions in the section besides accounting for multiple uses for the same amount.

The commission agrees with this comment and has revised the rules accordingly by deleting the references to multiple uses and simply providing that the rule relates to water use accounting.

The AECT, BRA, Tarrant Regional and Brown & Potts, L.L.P., commented that proposed §297.58 be amended to remove the provision that water from a water right with multiple appropriation dates be deducted from the oldest priority date first. The commenter states that if water became scarce later in the year, the water right holder would not be able to rely on his senior water right because it may have already been fully used. The commenter also states that this accounting practice appears to defeat the priority system recognized by statute and case law. AECT also suggests that if the provision is kept, that it apply only to appropriations with priority dates after December 31, 1998.

Additionally, BRA and Tarrant Regional commented that §297.58(b) should be revised to provide that the most recent priority water shall be credited against water first used unless the water right expressly provides otherwise, or unless the appropriator expresses the desire to assert the senior water right at some other time.

The commission disagrees, in part, with the comments and responds that the purpose of the proposed rule was to account for water use under a water right with varying priority dates in accordance with the prior appropriation system where the older rights are honored first. If a water right holder wishes to exercise the junior portion of the right first, the water right holder must affirmatively seek this by amendment to the right or, in a watermaster area, make this request to the watermaster. However, for purposes of water availability modeling, water use shall still be counted against the older rights first. The rule has been clarified to better reflect the intent of the rule.

TPWD commented that proposed §297.59(b), Additional Limitation, be amended to include that permits authorizing dams may also require low-flow outlets for the protection of water quality, as appropriate.

The commission agrees with the comment and has revised the rule accordingly as consistent with Texas Water Code §§11.147 and 11.150.

TWDB comments that proposed §297.71(b) should be rewritten to more closely follow the language of the underlying statutes and to combine the provisions relating to the Water Bank and Water Trust since the latter is an account in the former.

The commission disagrees with the comment because the rule consolidates the provisions relating to several statutes into one rule and a close paraphrase of the statutory language without substantive change was necessary to more clearly and succinctly state the requirements. The Water Bank and Water Trust are referenced separately because of the different criteria and procedural requirements for a deposit of a water right into the Water Trust.

TWDB comments that proposed §297.73(c) be revised to provide that no water right, held by a city, town, village or municipal water district authorizing the use of water for municipal purposes shall be canceled if "any portion" of the water right has been put to beneficial use during the last ten years.

The commission disagrees with the comment because is inconsistent with the underlying statute, Texas Water Code §11.184. This sections provides that no portion of the water right held by a municipality may be canceled if the water has been beneficially used in accordance with the water right. The rule tracks the statutory language to ensure that there is no confusion as to the grounds for which a water right may be canceled. The rule has been revised to clarify that a water right obtained to meet demonstrated long term water supply needs as evidenced in the applicable regional water plan is not subject to cancellation pursuant to Texas Water Code §11.177(b)(3).

Subchapter A. Definitions

30 TAC §297.1

STATUTORY AUTHORITY The amended section is adopted under Texas Water Code (TWC), Chapter 5, Subchapter D, §§5.103, 5.105 and 5.120 which establishes the commission's authority to promulgate rules necessary for the exercise of its jurisdiction and to establish and approve all agency policy by rule. Other relevant sections of the TWC under which the commission takes this action include: §11.002, which contains definitions necessary for the commission's water rights permitting program; §11.023, which establishes the purposes for which state water may be appropriated; 11.024, which establishes the commission's public policy regarding the preference among recognized beneficial uses of state water; §11.027, which establishes the commission's policy regarding rights between appropriators; §11.042, which established the commission's jurisdiction over delivering water down stream bed and banks; §11.046, which establishes the commission's authority concerning the return of unused water; §11.085, which establishes the commission's authority concerning the interbasin transfer of state water; §11.121, which establishes the commission's jurisdiction regarding the permitting of state water; §11.122, which establishes the commission's authority over the amendment of water rights; §11.1271, which establishes the commission's authority regarding additional requirements for water conservation plans; §11.1272, which establishes the commission's authority regarding additional requirements for drought contingency plans for certain applicants and water right holders; §11.134, which establishes the commission's jurisdiction regarding actions on applications to use state water; §11.135, which establishes the commission's authority to issue permits for the use of state water; §11.138, which establishes the commission's authority to issue temporary permits; §11. 1381, which establishes the commission's authority to issue term permits; §11.139, which establishes the commission's authority to issue emergency permits; §11.140, which establishes the commission's authority to issue permits for storage for project development; §11.141, which establishes the commission's authority to set priority dates for appropriations of water; §11.142, which establishes the commission's jurisdiction over permit exemptions for the use of state water; §11.1421, which establishes the commission's jurisdiction regarding permit exemption for mariculture activities; §11.1422, which establishes the commission's jurisdiction regarding permit exemptions for historic cemeteries; §11.143, which establishes the commission's jurisdiction over domestic and livestock reservoirs and uses for other purposes; §11.145, which establishes the commission's jurisdiction over when construction must begin for a permit to appropriate water by direct diversion; §11.146, which establishes the commission's jurisdiction over forfeitures and cancellation of permits for inaction; §11.147, which establishes the commission's authority regarding effects of permits on bays and estuaries and instream uses; §11.1491, which establishes the commission's authority regarding the evaluation of bays and estuaries data prepared under TWC, §16.058; §11.150, which establishes the commission's jurisdiction over permit effects on water quality; §11.151, which establishes the commission's jurisdiction over permit effects on groundwater; §11.152, which establishes the commission's jurisdiction over permit effects on fish and wildlife habitats; §11.153, which establishes the commission's jurisdiction over pilot projects for storage of appropriated water in aquifers; §11.154, which establishes the commission's authority regarding permits to store appropriated water in aquifers; §11.155, which establishes the commission's authority regarding aquifer storage pilot project reports; §11.173, which establishes the commission's authority regarding the cancellation of permits in whole; §11.175, which establishes the commission's authority regarding notice requirements for permits being considered for cancellation; §11.176, which establishes the commission's authority regarding hearings for permits being considered for cancellation; §11.177, which establishes the commission's regarding commission findings and action on a permit being considered for cancellation; §11.303, which establishes the commission's jurisdiction over recordation and limitation of certain water rights claims; §11.502, which establishes the commission's definition for wetlands within the State of Texas; §16.1331, which establishes the commission's jurisdiction over the reservation and appropriation of water for bays and estuaries and instream uses; and §16.195, which establishes the commission's authority regarding the emergency release of water.

§297.1.Definitions.

The following words and terms, when used in this chapter and in Chapters 288 and 295 of this title (relating to Water Conservation and Drought Contingency Plans and Water Rights, Procedural, respectively), shall have the following meanings, unless the context clearly indicates otherwise:

(1)

Appropriations - The process or series of operations by which an appropriative right is acquired. A completed appropriation thus results in an appropriative right; the water to which a completed appropriation in good standing relates is appropriated water.

(2)

Appropriative right - The right to impound, divert, store, take or use a specific quantity of state water acquired by law.

(3)

Aquifer Storage and Retrieval Project - A project with two phases that anticipates the use of a Class V aquifer storage well, as defined in §331.2 of this title (relating to Definitions), for injection into a geologic formation, group of formations, or part of a formation that is capable of underground storage of appropriated surface water for subsequent retrieval and beneficial use. Phase I of the project requires commission authorization by a temporary or term permit to determine feasibility for ultimate storage and retrieval for beneficial use. Phase II of the project requires commission authorization by permit or permit amendment after the commission has determined that Phase I of the project has been successful.

(4)

Baseflow or normal flow - The portion of streamflow uninfluenced by recent rainfall or flood runoff and is comprised of springflow, seepage, discharge from artesian wells or other groundwater sources, and the delayed drainage of large lakes and swamps. (Accountable effluent discharges from municipal, industrial, irrigation, or other uses of ground or surface waters may be included at times.)

(5)

Beneficial inflows - Freshwater inflows providing for a salinity, nutrient, and sediment loading regime adequate to maintain an ecologically sound environment in the receiving bay and estuary 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.

(6)

Beneficial use - Use of the amount of water which is economically necessary for a purpose authorized by law, when reasonable intelligence and reasonable diligence are used in applying the water to that purpose and shall include conserved water.

(7)

Certificate of adjudication - An instrument evidencing a water right issued to each person adjudicated a water right in conformity with the provisions of the Texas Water Code, §11.323, or the final judgment and decree in State of Texas v. Hidalgo County Water Control and Improvement District No. 18, 443 S.W.2d 728 (Texas Civil Appeals - Corpus Christi 1969, writ ref. n.r.e.).

(8)

Certified filing - A declaration of appropriation or affidavit which was filed with the State Board of Water Engineers under the provisions of the 33rd Legislature, 1913, General Laws, Chapter 171, §14, as amended.

(9)

Claim - A sworn statement filed pursuant to Texas Water Code, §11.303.

(10)

Commencement of construction - An actual, visible step beyond planning or land acquisition, which forms the beginning of the on-going (continuous) construction of a project in the manner specified in the approved plans and specifications, where required, for that project. The action must be performed in good faith with the bona fide intent to proceed with the construction.

(11)

Conservation - Those practices, techniques, and technologies that will reduce the consumption of water, reduce the loss or waste of water, improve the efficiency in the use of water, or increase the recycling and reuse of water so that a water supply is made available for future or alternative uses.

(12)

Conserved water - That amount of water saved by a water right holder through practices, techniques, or technologies that would otherwise be irretrievably lost to all consumptive beneficial uses arising from the storage, transportation, distribution, or application of the water. Conserved water does not mean water made available simply through its non-use without the use of such practices, techniques or technologies.

(13)

Dam - Any artificial structure, together with any appurtenant works, which impounds or stores water. All structures which are necessary to impound a single body of water shall be considered as one dam. A structure used only for diverting water from a watercourse by gravity is a diversion dam.

(14)

Diffused surface water - Water on the surface of the land in places other than watercourses. Diffused water may flow vagrantly over broad areas coming to rest in natural depressions, playa lakes, bogs, or marshes. (An essential characteristic of diffused water is that its flow is short-lived.)

(15)

District - Any district or authority created by authority of the Texas Constitution, either Article III, §52, (b), (1) and (2), or Article XVI, §59.

(16)

Domestic use - Use of water by an individual or a household to support domestic activity. Such use may include water for drinking, washing, or culinary purposes; for irrigation of lawns, or of a family garden and/or orchard; for watering of domestic animals; and for water recreation including aquatic and wildlife enjoyment. If the water is diverted, it must be diverted solely through the efforts of the user. Domestic use does not include water used to support activities for which consideration is given or received or for which the product of the activity is sold.

(17)

Drought of record - The historic period of record for a watershed in which the lowest flows were known to have occurred based on naturalized streamflow.

(18)

Firm yield - That amount of water, that the reservoir could have produced annually if it had been in place during the worst drought of record. In performing this simulation, naturalized streamflows will be modified as appropriate to account for the full exercise of upstream senior water rights is assumed as well as the passage of sufficient water to satisfy all downstream senior water rights valued at their full authorized amounts and conditions as well as the passage of flows needed to meet all applicable permit conditions relating to instream and freshwater inflow requirements.

(19)

Groundwater - Water under the surface of the ground other than underflow of a stream and underground streams, whatever may be the geologic structure in which it is standing or moving.

(20)

Habitat Mitigation - Actions taken to off-set anticipated adverse environmental impacts from a proposed project. Such actions and their sequence include:

(A)

avoiding the impact altogether by not taking a certain action or parts of an action or pursuing a reasonably practicable alternative;

(B)

minimizing impacts by limiting the degree or magnitude of the action and its implementation;

(C)

rectifying the impact by repairing, rehabilitating, or restoring the affected environment;

(D)

reducing or eliminating the impact over time by preservation and maintenance operations during the life of the project; and

(E)

compensating for the impact by replacing or providing substitute resources or environments.

(21)

Hydropower use - The use of water for hydroelectric and hydromechanical power and for other mechanical devices of like nature.

(22)

Industrial use - The use of water in processes designed to convert materials of a lower order of value into forms having greater usability and commercial value, including commercial feedlot operations, commercial fish and shellfish production and the development of power by means other than hydroelectric.

(23)

Instream use - The beneficial use of instream flows for such purposes including, but not limited to, navigation, recreation, hydropower, fisheries, game preserves, stock raising, park purposes, aesthetics, water quality protection, aquatic and riparian wildlife habitat, freshwater inflows for bays and estuaries, and any other instream use recognized by law. An instream use is a beneficial use of water. Water necessary to protect instream uses for water quality, aquatic and riparian wildlife habitat, recreation, navigation, bays and estuaries, and other public purposes may be reserved from appropriation by the commission.

(24)

Irrigation use - The use of water for the irrigation of crops, trees, and pasture land, including but not limited to golf courses and parks which do not receive water through a municipal distribution system.

(25)

Irrigation water use efficiency - the percentage of that amount of irrigation water which is beneficially used by agriculture crops or other vegetation relative to the amount of water diverted from the source(s) of supply. Beneficial uses of water for irrigation purposes include but are not limited to evapotranspiration needs for vegetative maintenance and growth and salinity management and leaching requirements associated with irrigation.

(26)

Livestock use - The use of water for the open-range watering of livestock, exotic livestock, game animals or fur-bearing animals. For purposes of this definition, the terms livestock and exotic livestock are to be used as defined in §142.001 of the Agriculture Code, and the terms game animals and fur-bearing animals are to be used as defined in §63.001 and 71.001, respectively, of the Parks and Wildlife Code.

(27)

Mariculture - The propagation and rearing of aquatic species, including shrimp, other crustaceans, finfish, mollusks, and other similar creatures in a controlled environment using brackish or marine water.

(28)

Mining use - The use of water for mining processes including hydraulic use, drilling, washing sand and gravel, and oil field repressuring.

(29)

Municipal per capita water use - The sum total of water diverted into a water supply system for residential, commercial, and public and institutional uses divided by actual population served.

(30)

Municipal use - The use of potable water within a community or municipality and its environs for domestic, recreational, commercial, or industrial purposes or for the watering of golf courses, parks and parkways, or the use of reclaimed water in lieu of potable water for the preceding purposes or the application of municipal sewage effluent on land, pursuant to a Texas Water Code, Chapter 26, permit where:

(A)

the application site is land owned or leased by the Chapter 26 permit holder; or

(B)

the application site is within an area for which the commission has adopted a no-discharge rule.

(31)

Navigable stream - By law, Natural Resources Code §21.001(3), any stream or streambed as long as it maintains from its mouth upstream an average width of 30 feet or more, at which point it becomes statutorily nonnavigable.

(32)

One-hundred-year flood - The flood peak discharge of a stream, based upon statistical data, which would have a l% chance of occurring in any given year.

(33)

Permit - The authorization by the commission to a person whose application for a permit has been granted. A permit also means any water right issued, amended, or otherwise administered by the commission unless the context clearly indicates that the water right being referenced is being limited to a certificate of adjudication, certified filing, or unadjudicated claim.

(34)

Pollution - The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of any water in the state that renders the water harmful or detrimental to humans, animal life, vegetation, or property, or the public health, safety or welfare, or impairs the usefulness of the public enjoyment of the waters for any lawful or reasonable purpose.

(35)

Priority - As between appropriators, the first in time is the first in right, Texas Water Code, §11.027, unless determined otherwise by an appropriate court or state law.

(36)

Reclaimed water - Municipal or industrial wastewater or process water that is under the direct control of the treatment plant owner/operator, or irrigation tailwater that has been collected for reuse, and which has been treated to a quality suitable for the authorized beneficial use.

(37)

Recreational use - The use of water impounded in or diverted or released from a reservoir or watercourse for fishing, swimming, water skiing, boating, hunting, and other forms of water recreation, including aquatic and wildlife enjoyment , and aesthetic land enhancement of a subdivision, golf course or similar development.

(38)

Register - The Texas Register.

(39)

Reservoir system operations - The coordinated operation of more than one reservoir or a reservoir in combination with a direct diversion facility in order to optimize available water supplies.

(40)

Return water or return flow - That portion of state water diverted from a water supply and beneficially used which is not consumed as a consequence of that use and returns to a watercourse. Return flow includes sewage effluent.

(41)

Reuse - The authorized use for one or more beneficial purposes of use of water that remains unconsumed after the water is used for the original purpose of use and before that water is either disposed of or discharged or otherwise allowed to flow into a watercourse, lake or other body of state-owned water.

(42)

Runoff - That portion of streamflow comprised of surface drainage or rainwater from land or other surfaces during or immediately following a rainfall.

(43)

Secondary use - The reuse of state water for a purpose after the original, authorized use.

(44)

Sewage or sewage effluent - Water-carried human or animal wastes from residences, buildings, industrial establishments, cities, towns, or other places, together with any groundwater infiltration and surface waters with which it may be commingled.

(45)

Spreader dam - A levee-type embankment placed on alluvial fans or within a flood plain of a watercourse, common to land use practices, for the purpose of overland spreading of diffused waters and overbank flows.

(46)

State water - The water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the stormwater, floodwater, and rainwater of every river, natural stream, and watercourse in the state. State water also includes water which is imported from any source outside the boundaries of the state for use in the state and which is transported through the beds and banks of any navigable stream within the state or by utilizing any facilities owned or operated by the state. Additionally, state water injected into the ground for an aquifer storage and recovery project remains state water. State water does not include percolating groundwater; nor does it include diffuse surface rainfall runoff, groundwater seepage, or springwater before it reaches a watercourse.

(47)

Stormwater or floodwater - Water flowing in a watercourse as the result of recent rainfall.

(48)

Streamflow - The water flowing within a watercourse.

(49)

Surplus water - Water taken from any source in excess of the initial or continued beneficial use of the appropriator for the purpose or purposes authorized by law. Water that is recirculated within a reservoir for cooling purposes shall not be considered to be surplus water.

(50)

Unappropriated water - The amount of state water remaining in a watercourse or other source of supply after taking into account complete satisfaction of all existing water rights valued at their full authorized amounts and conditions.

(51)

Underflow of a stream - Water in sand, soil, and gravel below the bed of the watercourse, together with the water in the lateral extensions of the water-bearing material on each side of the surface channel, such that the surface flows are in contact with the subsurface flows, the latter flows being confined within a space reasonably defined and having a direction corresponding to that of the surface flow.

(52)

Waste - The diversion of water if the water is not used for a beneficial purpose; the use of that amount of water in excess of that which is economically reasonable for an authorized purpose when reasonable intelligence and reasonable diligence are used in applying the water to that purpose. Waste may include, but not be limited to, the unreasonable loss of water through faulty design or negligent operation of a water delivery, distribution or application system or the diversion or use of water in any manner that causes or threatens to cause pollution of water. Waste does not include the beneficial use of water where the water may become polluted because of the nature of its use, such as domestic or residential use, but is subsequently treated in accordance with all applicable rules and standards prior to its discharge into or adjacent to water in the state so that it may be subsequently beneficially used.

(53)

Water conservation plan - a strategy or combination of strategies for reducing the volume of water withdrawn from a water supply source, for preventing or reducing the loss or waste of water, for maintaining or improving the efficiency in the use of water, for increasing the recycling and reuse of water, and for preventing the pollution of water. A water conservation plan may be a separate planning document or may be contained within another water management document(s).

(54)

Water in the state - Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.

(55)

Watercourse - A definite channel of a stream in which water flows within a defined bed and banks, originating from a definite source or sources. (The water may flow continuously or intermittently, and if the latter with some degree of regularity, depending on the characteristics of the sources.)

(56)

Water right - A right or any amendment thereto acquired under the laws of this state to impound, divert, store, convey, take or use state water.

(57)

Watershed - A term used to designate the area drained by a stream and its tributaries, or the drainage area upstream from a specified point on a stream.

(58)

Water supply - Any body of water, whether static or moving, either on or under the surface of the ground, available for beneficial use on a reasonably dependable basis.

(59)

Wetland - An area (including a swamp, marsh, bog, prairie pothole, playa, or similar area) having a predominance of hydric soils that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and that under normal circumstances supports the growth and regeneration of hydrophytic vegetation. The term "hydric soil" means soil that, in its undrained condition is saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation. The term "hydrophytic vegetation" means a plant growing in water or a substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content. The term "wetland" does not include:

(A)

irrigated acreage used as farmland;

(B)

man-made wetlands of less than one acre; or

(C)

man-made wetlands not constructed with wetland creation as a stated objective, including but not limited to impoundments made for the purpose of soil and water conservation which have been approved or requested by soil and water conservation districts. This definition does not apply to man-made wetlands described under this subparagraph constructed or created on or after August 28, 1989. If this definition conflicts with the federal definition in any manner, the federal definition prevails.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 4, 1999.

TRD-9900753

Margaret Hoffman

Director, Environmental Law Division

Texas Natural Resource Conservation Commission

Effective date: February 24, 1999

Proposal publication date: October 9, 1998

For further information, please call: (512) 239-6087