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 297.42 - Water Availability

Current through Reg. 49, No. 28; July 12, 2024
(a) Except as
				  provided by Texas Water Code (TWC), § 11.1381, and §
										297.19
				  of this title (relating to Term Permit under Texas Water Code, §
										11.1381 ), an application
				  for a new or increased appropriation will be denied unless there is a
				  sufficient amount of unappropriated water available for a sufficient amount of
				  the time to make the proposed project viable and ensure the beneficial use of
				  water without waste.
(b) A new
				  water right may be conditioned as appropriate to protect any applicable
				  environmental flow standards as described in Chapter 298 of this title
				  (relating to Environmental Flow Standards for Surface Water), and, if
				  applicable, instream uses, water quality, aquatic and wildlife habitat, and
				  freshwater inflows to bays and estuaries as provided by TWC,
				  §§11.147, 11.150, 11.152, and 16.059.
(c) For the approval of an application for a
				  direct diversion from a stream without sufficient on or off channel water
				  storage facilities for irrigation, approximately 75% of the water requested
				  must be available approximately 75% of the time when distributed on a monthly
				  basis and based upon the available historic stream flow record. Lower
				  availability percentages may be acceptable if the applicant can demonstrate
				  that a long-term, reliable, alternative source or sources of water of
				  sufficient quantity and quality are economically available to the applicant to
				  make the proposed project viable and ensure the beneficial use of state water
				  without waste.
(d) Projects that
				  are not required to be based upon the continuous availability of historic,
				  normal stream flow include, but are not limited to: conjunctive ground and
				  surface water management projects; diversions or impoundments at times of
				  above-normal stream flow (e.g., "scalping" operations) for seasonal or
				  supplemental use; a system operation in conjunction with other water rights;
				  non-consumptive instream uses except for instream flows dedicated to
				  environmental needs or inflows to the state's bay and estuary systems, pursuant
				  to TWC, §11.0237(a); or other similar type projects. The required
				  availability of unappropriated water for these special type projects shall be
				  determined on a case-by-case basis based upon whether the proposed project can
				  be viable for the intended purposes and the water will be beneficially used
				  without waste.
(e) New
				  appropriations of water for recharge into an aquifer underlying this state,
				  including aquifer recharge projects as defined by TWC, §27.201 or for
				  storage in an aquifer storage and recovery project before the water is
				  recovered for a beneficial use may be for water that is not continuously
				  available. Water availability for the full amount of water requested for these
				  types of projects must, at a minimum, be available at least one year in the
				  period of record based on the commission's water availability model for the
				  applicable river basin, and the proposed project must be viable for the
				  intended purposes and the water must be beneficially used without
				  waste.
(f) New appropriations of
				  water based on an increase in the amount of water diverted or the rate of
				  diversion resulting from an evaporation credit under TWC, §11.158(c) may
				  be for water that is not continuously available, as defined in subsection (e)
				  of this section. Water availability for projects under this subsection that
				  request an increase in the amount of water diverted or the rate of diversion
				  from an on-channel reservoir that has not been constructed shall be based on
				  the evaporation calculations that were used in developing the terms of the
				  water right for which the amendment is sought and cannot exceed the maximum
				  annual modeled evaporation as determined in the commission's water availability
				  model for the applicable river basin.
(g) The volume of water available for
				  conversion of a water right that authorizes storage in a reservoir that has
				  lost storage capacity because of sedimentation to storage as part of an aquifer
				  storage and recovery project, as described in TWC, §11.158(d), does not
				  have to be continuously available, as defined in subsection (e) of this
				  section. The volume of water that can be converted to storage in an aquifer
				  storage and recovery project under this subsection is limited to the lesser of:
(1) the storage volume that is demonstrated
				  to have been lost to sedimentation, as determined by a survey performed by the
				  Texas Water Development Board; or
(2) the volume of storage in the aquifer
				  storage and recovery project that would restore the amount of previously
				  authorized storage capacity lost to sedimentation.