Rule §297.18 Interbasin Transfers, Texas Water Code, §11.085


Published: 2015

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(a) No person may take or divert any state water from
a river basin and transfer such water to any other river basin without
first applying for and receiving a water right or an amendment to
a water right authorizing the transfer.
(b) An increase in the authorized amount of water being
transferred to the receiving basin under an existing water right constitutes
a new interbasin transfer for purposes of this section.
(c) In addition to the other requirements of this chapter
relating to the review of and action on an application for a new or
amended water right, the commission shall weigh the effects of the
proposed transfer by considering:
  (1) the need for the water in the basin of origin and
in the proposed receiving basin based on the period for which the
water supply is requested, but not to exceed 50 years;
  (2) factors identified in the applicable approved regional
water plans which address the following:
    (A) the availability of feasible and practicable alternative
supplies in the receiving basin to the water proposed for transfer;

    (B) the amount and purposes of use in the receiving
basin for which the water is needed;
    (C) proposed methods and efforts by the receiving basin
to avoid waste and implement water conservation and drought contingency
measures;
    (D) proposed methods and efforts by the receiving basin
to put the water proposed for transfer to beneficial use;
    (E) the projected economic impact that is reasonably
expected to occur in each basin as a result of the transfer; and
    (F) the projected impacts of the proposed transfer
that are reasonably expected to occur on existing water rights, instream
uses, water quality, aquatic and riparian habitat, and bays and estuaries
in each basin. If the water sought to be transferred is currently
authorized to be used under an existing water right in the basin of
origin, such impacts shall only be considered in relation to that
portion of the water right proposed for transfer and shall be based
on the historical uses of the water right for which amendment is sought.

  (3) proposed mitigation or compensation, if any, to
the basin of origin by the applicant;
  (4) the continued need to use the water for the purposes
authorized under the existing water right if an amendment to an existing
water right is sought;
  (5) comments received from county judges required to
be provided notice of the application as provided by §297.17
of this title (relating to Emergency Authorization (Texas Water Code, §11.139));
and
  (6) information required to be submitted by the applicant.

(d) The commission may grant, in whole or in part,
an application for an interbasin transfer only to the extent that:

  (1) the detriments to the basin of origin during the
proposed transfer period are less than the benefits to the receiving
basin during the proposed transfer period, as determined by the commission
based on consideration of the factors described by subsection (c)(1)
- (4) and (6) of this section; and
  (2) the applicant for the interbasin transfer has prepared
drought contingency and water conservation plans meeting the requirements
of Chapter 288 of this title (relating to Water Conservation Plans,
Drought Contingency Plans, Guidelines and Requirements) and has implemented
a water conservation plan that will result in the highest practicable
levels of water conservation and efficiency achievable within the
jurisdiction of the applicant.
(e) The commission may grant new or amended water rights
under this section with or without specific terms or periods of use
and with specific conditions under which a transfer of water may occur.

(f) If an interbasin transfer of water is based on
a contractual sale of water, the new or amended water right authorizing
the transfer shall contain a condition for a term or period not greater
than the term of the contract, including any extension or renewal
of the contract.
(g) The parties to a contract for an interbasin transfer
of water may include provisions for compensation and mitigation. If
the party from the basin of origin is a governmental entity, each
county judge located in whole or in part in the basin of origin may
provide comment on the appropriate compensation and mitigation for
the interbasin transfer.
(h) A new water right or amendment to an existing water
right for a proposed interbasin transfer of water is junior in priority
to water rights in the basin of origin granted before the time an
administratively complete application for the transfer is filed with
the chief clerk in accordance with §281.17 of this title (relating
to Notice of Receipt of Application and Declaration of Administrative
Completeness). If an amendment is made to the water right to effectuate
an interbasin transfer of water for a term, the affected portion of
the water right shall be junior to all existing water rights in the
basin of origin only for the term of the amendment.
(i) A new water right or amendment to an existing water
right for a transfer of water from a river basin in which two or more
river authorities or water districts have written agreements or permits
that provide for the coordinated operation of their respective reservoirs
to maximize the amount of water for beneficial use within their respective
water service areas shall be junior in priority to water rights granted
in that basin before the time an administratively complete application
for the interbasin transfer is filed with the chief clerk in accordance
with §281.17 of this title. If an amendment is made to the water
right to effectuate an interbasin transfer of water for a term, the
affected portion of the water right shall be junior to all existing
water rights in the basin of origin only for the term of the amendment.

(j) An appropriator of water for municipal purposes
in the basin of origin may, at the appropriator's option, be a party
in any hearings under this section. Nothing in this provision shall
be construed as adversely affecting the ability of any other potentially
affected person to obtain party status.
(k) The provisions that are contained in subsections
(b) - (j) of this section that are in addition to those generally
required for an application for a new or amended water right do not
apply to:
  (1) a proposed transfer which in combination with any
existing transfers totals less than 3,000 acre-feet of water per annum
from the same water right;
  (2) a request for an emergency transfer of water as
provided by §297.17 of this title;
  (3) a proposed transfer from a basin to its adjoining
coastal basin;
  (4) a proposed transfer of water that is:
    (A) imported from a source located wholly outside the
boundaries of this state; except water that is imported from a source
located in the United Mexican States;
    (B) for use in this state; and
    (C) transported by using the bed and banks of any flowing
natural stream in this state; or
  (5) a proposed transfer from the part of the geographic
area of a county or municipality, or the part of the retail service
area of a retail public utility as defined by Texas Water Code, §13.002,
that is within the basin of origin for use in the part of the geographic
area of the county or municipality, or that contiguous part of the
retail service area of the utility, not within the basin of origin.
The further transfer and use of this water outside of such county,
municipality, or the part of the retail service area of a retail public
utility as defined by Texas Water Code, §13.002 as existing at
the time of the transfer or as may exist in the future other than
back to the basin of origin shall not be exempt under this paragraph.


Source Note: The provisions of this §297.18 adopted to be effective May 29, 1986, 11 TexReg 2330; amended to be effective February 24, 1999, 24 TexReg 1162; amended to be effective August 15, 2002, 27 TexReg 7152; amended to be effective May 6, 2010, 35 TexReg 3504; amended to be effective August 28, 2014, 39 TexReg 6494