(a) This subchapter only applies to diversion and use of marine seawater for desalination, diversion of seawater from a bay or arm of the Gulf of Mexico for desalination solely for industrial purposes, and conveyance of treated marine seawater through the bed and banks of a flowing stream. The commission may issue a permit under this subchapter to authorize a diversion of state water from the Gulf of Mexico or a bay or arm of the Gulf of Mexico for desalination and use if:
  (1) the point of diversion is located less than three miles seaward of any point located on the coast of this state; or
  (2) the water at the proposed diversion point contains a total dissolved solids concentration based on a yearly average of samples taken monthly at the water source of less than 20,000 milligrams per liter.
(b) A person may divert and use state water that consists of marine seawater or seawater without obtaining a permit if subsection (a) of this section does not apply.
(c) A person may not begin construction of a facility for the diversion of marine seawater or seawater without obtaining a permit until the person has provided data to the commission demonstrating:
  (1) based on the location of each proposed diversion location, that subsection (a)(1) of this section does not apply; and
  (2) based on the analysis of samples taken at the water source for each proposed diversion location over a period of at least one year, in accordance with the requirements set out in §297.205 of this title (relating to Determination of Total Dissolved Solids Concentration) that subsection (a)(2) of this section does not apply.
(d) A person who has begun construction of a facility for the diversion of marine seawater or seawater without obtaining a permit because the person has demonstrated that subsection (a)(2) of this section does not apply is not required to obtain a permit for the facility if the total dissolved solids concentration of the marine seawater or seawater at the water source subsequently changes so that subsection (a)(2) of this section applies.
(e) This subchapter does not apply to a diversion of marine seawater from a point of diversion located in a bay or estuary unless the diversion is solely for the purpose of desalination of seawater for industrial use under Texas Water Code (TWC), §11.1405.
(f) TWC, Chapter 11, applies to a permit or authorization under this subchapter in the same manner as that chapter applies to a permit or authorization under that chapter which is not subject to this subchapter.
(g) If a person seeks to utilize a facility that was constructed or permitted for the diversion of seawater solely for the purpose of desalination for industrial use under this subchapter to divert seawater for another use, the person must first obtain a water right permit pursuant to provisions of TWC, Chapter 11, other than TWC, §11.1405.

Source Note: The provisions of this §295.300 adopted to be effective December 8, 2016, 41 TexReg 9539