Section 297.55 - Estuarine Considerations(a) In its consideration of an application for a new or amended water right to store, take, or divert water, the commission shall assess the effects, if any, of the granting of the application on the bays and estuaries of Texas. For permits issued within an area that is 200 river miles of the coast, to commence from the mouth of the river thence inland, the commission shall include in the water right, to the extent practicable when considering all public interests, those conditions considered necessary to maintain beneficial inflows to any affected bay and estuary system.(b) For purposes of making a determination under this section, the commission shall consider: (1) the need for periodic freshwater inflows to supply nutrients, sediments, and modify salinity to preserve the sound environment of the bay and estuary, using any available information, including studies and plans specified in Texas Water Code § 11.1491 and other studies considered by the commission to be reliable; together with existing circumstances, natural or otherwise, that may prevent the conditions imposed from producing benefits;(2) the ecology and productivity of the affected bay and estuary system;(3) the expected effects on the public welfare of not including in the water right some or all of the conditions considered necessary to maintain the beneficial inflows to the affected bay or estuary system;(4) the quantity of water requested and the proposed use of the water by the applicant, as well as the needs of those who would be served by the applicant;(5) the expected effects on the public welfare of the failure to issue all or part of the water right being considered; and(6) the declarations as to preferences for competing uses of water as found in Texas Water Code §§ 11.023 and 11.024 as well as the policy statement in Texas Water Code § 11.003.(c) At least five percent (5%) of the annual firm yield of water in any reservoir or associated works on which construction began on or after September 1, 1985, and which is constructed with state financial participation and is located within 200 river miles from the coast, to commence from the mouth of the river thence inland, is appropriated to the Texas Parks and Wildlife Department for use to make releases to bays and estuaries and instream uses. This five percent figure may not be indicative of the full instream needs or the freshwater inflow needs of the affected bay or estuary system and the commission may impose additional water right conditions to provide a greater amount of water for this purpose, if necessary and appropriate after considering all the factors provided by subsection (b) of this section.(d) Pursuant to Texas Water Code, § 16.195, unallocated water and other water of the state permitted to the Texas Water Development Board and stored in any facility acquired by and under the control of the Texas Water Development Board may be released without charge to relieve any emergency condition arising from drought, severe water shortage, or other calamity including, but not limited to, insufficient flows for existing instream uses and beneficial inflows for the maintenance of bays and estuaries, if the commission first determines the existence of the emergency and requests the Texas Water Development Board to release the water. Such release may not impair a contractual obligation of the Texas Water Development Board. The Texas Parks and Wildlife Department may also petition the commission to request such release for the maintenance of existing instream uses and beneficial inflows to bays and estuaries.(e) The assessment of and conditions upon a proposed amendment to a water right under subsections (a) and (b) of this section shall be limited by § 297.45(b) of this title (relating to "No Injury" Rule) as provided by Texas Water Code § 11.122(b).30 Tex. Admin. Code § 297.55
The provisions of this §297.55 adopted to be effective February 24, 1999, 24 TexReg 1162