(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.
(g) The assessment of and conditions upon a proposed amendment to a water right under 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).

Source Note: The provisions of this §297.53 adopted to be effective February 24, 1999, 24 TexReg 1162