Texas Administrative Code › Title 30 - ENVIRONMENTAL QUALITY › Part 1 - TEXAS COMMISSION ON ENVIRONMENTAL QUALITY › Chapter 297 - WATER RIGHTS, SUBSTANTIVE › Subchapter E - ISSUANCE AND CONDITIONS OF WATER RIGHTS › Section 297.53 - Habitat Mitigation

Current through Reg. 49, No. 28; July 12, 2024
(a) In its
				  consideration of an application for a new or amended water right to store,
				  take, or divert state water in excess of 5,000 acre-feet per year, the
				  commission shall assess the effects, if any, of the granting of the application
				  on fish and wildlife habitats. The commission shall also consider whether the
				  proposed project would affect river or stream segments of unique ecological
				  value as identified by the applicable approved regional water plan and
				  designated as such by the Texas Legislature in accordance with Texas Water Code
				  §
										16.051(e).
(b) For an application for a new or amended
				  water right to store, take, or divert state water, the commission may require
				  the applicant to take reasonable actions to mitigate adverse impacts, if any,
				  on fish and wildlife habitat.
(c)
				  An assessment under this section shall include the project site as well as
				  potentially impacted habitat upstream, adjoining, and downstream of the project
				  site.
(d) In determining whether to
				  require an applicant to mitigate adverse impacts on a habitat, the commission
				  may consider any net environmental benefit to the habitat produced by the
				  project. The commission shall offset any mitigation it requires by any
				  mitigation required by the United States Fish and Wildlife Service pursuant to
				  33 Code of Federal Regulations §§320-330.
(e) The goal of the mitigation of wetlands is
				  to achieve "no net loss" of wetland functions and values. In addition to
				  aquatic and wildlife habitat, wetland functions also include, but are not
				  limited to, water quality protection through sediment catchment and filtration,
				  storage plans for flood control, erosion control, groundwater recharge, and
				  other uses.
(f) In case of
				  unavoidable wetlands loss, impacts to wetland habitat are mitigated in
				  accordance with the following guidelines:
(1)
				  Wetlands shall be classified using the USFWS's "Classification of Wetlands and
				  Deepwater Habitats of the United States" (USFWS 1979). Specific functions and
				  values for wetlands habitats shall be determined on an individual case basis
				  using the most technically appropriate habitat evaluation methodology (e.g.,
				  USFWS's Habitat Evaluation Procedures and Wetlands Evaluation Techniques;
				  TPWD's Wildlife Habitat Appraisal Procedure).
(2) Mitigation for wetland habitat loss shall
				  seek first to be an on-site and in-kind replacement of lost wetland function
				  and value whenever possible. Habitat mitigation shall be considered only after
				  the complete sequencing (avoidance, minimization or modification, and
				  compensation/replacement) process has been performed in accordance with
				  40 CFR
				  §230.10 et seq.
(3) Habitats shall be evaluated using the
				  most appropriate methodology (e.g., USFWS's Habitat Evaluation Procedures and
				  Wetlands Evaluation Techniques; TPWD's Wildlife Habitat Appraisal Procedure).
				  Total habitat value for each habitat type shall be determined on an individual
				  case basis for the area impacted by a project.
(4) Mitigation for terrestrial and riparian
				  habitat loss shall be based upon on-site and in-kind replacement of lost
				  habitat whenever possible. Habitat mitigation shall be considered only after it
				  has been established that habitat impacts are unavoidable and there is suitable
				  mitigation habitat available for complete compensation for the lost habitat.
				  Where on-site, in-kind replacement of habitat is not possible, mitigation shall
				  be limited to the same watershed and ecoregion.
(5) Replacement of affected terrestrial and
				  riparian habitats shall be of equal or greater value with respect to affected
				  habitat. Mitigation will not be limited to a total habitat replacement, but
				  will consider the threatened or endangered nature of the habitat(s) being lost
				  or degraded and the limiting effects of surrounding land use on success
				  compensation. Buffer zones around the mitigation area may be required to fully
				  compensate for the total habitat loss.
(6) Water right permit reviews shall examine
				  both direct and indirect impacts to terrestrial and riparian habitats, as well
				  as long and short-term effects to the watershed or ecoregion that may result
				  from the permitted activity.
(7)
				  Habitat mitigation plans and agreements shall be ensured through binding legal
				  contracts, permit provisions, and detailed management plans and shall include
				  goals and schedules of completion of those goals. The mitigation habitat shall
				  be managed in perpetuity by a party approved by the commission to maintain the
				  habitat value lost because of project impacts.