(a) On the petition of the executive director, the commission may amend a water right permit for a new appropriation or an amendment for an increase in the amount of water authorized to be stored, taken, or diverted issued after September 1, 2007, in order to adjust environmental flow special conditions, if the commission determines, through the process set forth herein, that such an adjustment is appropriate to achieve compliance with applicable environmental flow standards adopted in this chapter.
(b) A petition to adjust an environmental flow special condition shall be prepared by the executive director in the manner of an original application for a permit and have a title that indicates that it is to adjust environmental flow special conditions. The petition shall be filed with the Chief Clerk in the same manner as a water right permit application.
(c) Notice of the petition, with an opportunity for public comment, shall be mailed by the executive director by first-class mail, postage prepaid, to each water right holder of record within the basin, to the Texas Parks and Wildlife Department, and to all navigation districts within the river basin concerned not less than 30 days before the date of action on the petition by the commission. The executive director will also cause a copy of the notice to be posted to the commission's Web site at least 30 days before the date of action on the petition by the commission. A temporary outage of service of the commission's Web site during the 30-day notice period does not prevent the commission's consideration of the petition. The inadvertent failure of the executive director to mail notice to a navigation district that is not an appropriator of water does not prevent the commission's consideration of the petition.
(d) The commission may act on the petition without holding a public hearing. The commission shall consider all written public comment received on the petition prior to the commission's decision on the petition.
(e) A motion for rehearing of the commission's action must be filed no later than 23 days after the Chief Clerk mails (or otherwise transmits) the decision on the petition and provides instructions for requesting that the commission reconsider the decision or hold a contested case hearing. The following may file a motion for rehearing under this chapter:
  (1) the commission on its own motion;
  (2) the executive director;
  (3) the water right holder;
  (4) Texas Parks and Wildlife Department; and
  (5) affected persons, when authorized by law.
(f) A motion for rehearing by an affected person must be in writing, and must be filed with the Chief Clerk within the time provided by subsection (e) of this section.
(g) If the motion for rehearing is granted, the commission may refer the matter to the State Office of Administrative Hearings.
(h) The environmental flow adjustment, in combination with any previous adjustments made under this section may not increase the amount of the environmental flow pass-through or release requirement for a water right permit by more than 12.5% of the annualized total of that requirement contained in the permit as issued or of that requirement contained in the amended water right and applicable only to the increase in the amount of water authorized to be stored, taken, or diverted under the amended water right permit. Any new permit conditions must be consistent with the environmental flow standards to the maximum extent practicable.
  (1) For environmental flow conditions expressed in cubic feet per second, the maximum adjustment is calculated by summing the monthly rate in cubic feet per second for each month and then multiplying the sum of the monthly rates in the original standard in cubic feet per second by 12.5% to generate the maximum annualized adjustment expressed in cubic feet per second. The adjustment, in combination with all previous adjustments, cannot increase the annualized flow requirement above the sum of the original annualized flow requirement plus the original 12.5% adjustment.
  (2) For environmental flow conditions, such as a pulse, expressed with multiple characteristics, such as frequency, peak flow, volume, and duration, the maximum adjustment is calculated by summing the original pulse volume for each season and multiplying that volume by 12.5% to generate the maximum annualized adjustment amount. The combination of all previous adjustments, and any new adjustment, cannot increase the annualized pulse volume above the sum of the original annualized pulse volume requirement plus the original 12.5% adjustment.
(i) The environmental flow adjustment must be based on appropriate consideration of the priority dates and diversion locations of any other water rights granted in the same river basin that are subject to adjustment under this section.
(j) The environmental flow adjustment must be based on appropriate consideration of any voluntary contributions to the Texas Water Trust, and of any voluntary amendments to existing water rights to change the use of a specified quantity of water to or add a use of a specified quantity of water for instream flows dedicated to environmental needs or bay and estuary inflows as authorized by Texas Water Code, §11.0237(a), that actually contribute toward meeting the applicable environmental flow standard. Any water right holder who makes a contribution or amends a water right as described herein is entitled to appropriate credit for the benefits of the contribution or amendment against the adjustment of the holder's existing water right permit conditions under this section.
  (1) Water rights that are voluntarily contributed to the Texas Water Trust or voluntary amendments to change the use where the total volume of water is available in at least 75% of the years, are entitled to credit the contribution or amendment against the adjustment only by spreading out the amount contributed evenly over the year, or, if the underlying permit limits the portion of the year when use is authorized, over that portion of the year when use is authorized in the underlying permit; and
  (2) Water rights that are voluntarily contributed to the Texas Water Trust or voluntary amendments to change the use where the reliability of the water does not meet the criteria that the water is available in at least 75% of the years, or amendments to add a use of a specified quantity of water for instream flows dedicated to environmental needs or bay and estuary inflows are entitled to credit the contribution or amendment against the adjustment only by spreading out one half of the amount contributed evenly over the year, or, if the underlying permit limits the portion of the year when use is authorized, over that portion of the year when use is authorized in the underlying permit; and
  (3) For water rights that are voluntarily contributed to the Texas Water Trust and include storage, and providing that the underlying water right authorizes diversion from that storage, allowing the water to be provided in at least 75% of the years, the commission may allow credit for the contribution without spreading the amount of the contribution evenly across the year if the commission determines that doing so would better ensure protection of the standards and any applicable environmental flow set-aside.

Source Note: The provisions of this §298.25 adopted to be effective May 15, 2011, 36 TexReg 2908