Current through Reg. 49, No. 38; September 20, 2024
(a) Dredging and construction of structures
in, or the discharge of dredged or fill material into, critical areas shall
comply with the policies in this section. In implementing this section,
cumulative and secondary adverse effects of these activities will be
considered.
(1) The policies in this section
shall be applied in a manner consistent with the goal of achieving no net loss
of critical area functions and values.
(2) Persons proposing development in critical
areas shall demonstrate that no practicable alternative with fewer adverse
effects is available.
(3) In
evaluating practicable alternatives, the following sequence shall be applied:
(A) Adverse effects on critical areas shall
be avoided to the greatest extent practicable.
(B) Unavoidable adverse effects shall be
minimized to the greatest extent practicable by limiting the degree or
magnitude of the activity and its implementation.
(C) Appropriate and practicable compensatory
mitigation shall be required to the greatest extent practicable for all adverse
effects that cannot be avoided or minimized.
(4) Compensatory mitigation includes
restoring adversely affected critical areas or replacing adversely affected
critical areas by creating new critical areas. Compensatory mitigation should
be undertaken, when practicable, in areas adjacent or contiguous to the
affected critical areas (on-site). If on-site compensatory mitigation is not
practicable, compensatory mitigation should be undertaken in close physical
proximity to the affected critical areas if practicable and in the same
watershed if possible (off-site). Compensatory mitigation should also attempt
to replace affected critical areas with critical areas with characteristics
identical to or closely approximating those of the affected critical areas
(in-kind). The preferred order of compensatory mitigation is:
(A) on-site, in-kind;
(B) off-site, in-kind;
(C) on-site, out-of-kind; and
(D) off-site, out-of-kind.
(5) Mitigation banking is
acceptable compensatory mitigation if use of the mitigation bank has been
approved by the agency authorizing the development and mitigation credits are
available for withdrawal. Preservation through acquisition for public ownership
of unique critical areas or other ecologically important areas may be
acceptable compensatory mitigation in exceptional circumstances. Examples of
this include areas of high priority for preservation or restoration, areas
whose functions and values are difficult to replicate, or areas not adequately
protected by regulatory programs. Acquisition will normally be allowed only in
conjunction with preferred forms of compensatory mitigation.
(6) In determining compensatory mitigation
requirements, the impaired functions and values of the affected critical area
shall be replaced on a one-to-one ratio. Replacement of functions and values on
a one-to-one ratio may require restoration or replacement of the physical area
affected on a ratio higher than one-to-one. While no net loss of critical area
functions and values is the goal, it is not required in individual cases where
mitigation is not practicable or would result in only inconsequential
environmental benefits. It is also important to recognize that there are
circumstances where the adverse effects of the activity are so significant
that, even if alternatives are not available, the activity may not be permitted
regardless of the compensatory mitigation proposed.
(7) Development in critical areas shall not
be authorized if significant degradation of critical areas will occur.
Significant degradation occurs if:
(A) the
activity will jeopardize the continued existence of species listed as
endangered or threatened, or will result in likelihood of the destruction or
adverse modification of a habitat determined to be a critical habitat under the
Endangered Species Act, 16 United States Code Annotated, §§1531 -
1544;
(B) the activity will cause
or contribute, after consideration of dilution and dispersion, to violation of
any applicable surface water quality standards established under §26.21 of
this title (relating to Policies for Discharge of Municipal and Industrial
Wastewater to Coastal Waters);
(C)
the activity violates any applicable toxic effluent standard or prohibition
established under §26.21 of this title;
(D) the activity violates any requirement
imposed to protect a marine sanctuary designated under the Marine Protection,
Research, and Sanctuaries Act of 1972, 33 United States Code Annotated, Chapter
27; or
(E) taking into account the
nature and degree of all identifiable adverse effects, including their
persistence, permanence, areal extent, and the degree to which these effects
will have been mitigated pursuant to subsections (c) and (d) of this section,
the activity will, individually or collectively, cause or contribute to
significant adverse effects on:
(i) human
health and welfare, including effects on water supplies, plankton, benthos,
fish, shellfish, wildlife, and consumption of fish and wildlife;
(ii) the life stages of aquatic life and
other wildlife dependent on aquatic ecosystems, including the transfer,
concentration, or spread of pollutants or their byproducts beyond the site, or
their introduction into an ecosystem, through biological, physical, or chemical
processes;
(iii) ecosystem
diversity, productivity, and stability, including loss of fish and wildlife
habitat or loss of the capacity of a coastal wetland to assimilate nutrients,
purify water, or reduce wave energy; or
(iv) generally accepted recreational,
aesthetic or economic values of the critical area which are of exceptional
character and importance.
(b) The TCEQ and the RRC shall comply with
the policies in this section when issuing certifications and adopting rules
under Texas Water Code, Chapter 26, and the Texas Natural Resources Code,
Chapter 91, governing certification of compliance with surface water quality
standards for federal actions and permits authorizing development affecting
critical areas; provided that activities exempted from the requirement for a
permit for the discharge of dredged or fill material, described in Code of
Federal Regulations, Title 33, §323.4 and/or Code of Federal Regulations,
Title 40, §232.3, including but not limited to normal farming,
silviculture, and ranching activities, such as plowing, seeding, cultivating,
minor drainage, and harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices, shall not be
considered activities for which a certification is required. The GLO and the
SLB shall comply with the policies in this section when approving oil, gas, or
other mineral lease plans of operation or granting surface leases, easements,
and permits and adopting rules under the Texas Natural Resources Code, Chapters
32, 33 and 51 - 53, and Texas Water Code, Chapter 61, governing development
affecting critical areas on state submerged lands and private submerged lands,
and when issuing approvals and adopting rules under Texas Natural Resources
Code, Chapter 221, for mitigation banks operated by subdivisions of the
state.
(c) Agencies required to
comply with this section will coordinate with one another and with federal
agencies when evaluating alternatives, determining appropriate and practicable
mitigation, and assessing significant degradation. Those agencies' rules
governing authorizations for development in critical areas shall require a
demonstration that the requirements of subsection (a)(1) - (7) of this section
have been satisfied.
(d) For any
dredging or construction of structures in, or discharge of dredged or fill
material into, critical areas that is subject to the requirements of
§26.15 of this title (relating to Policy for Major Actions), data and
information on the cumulative and secondary adverse affects of the project need
not be produced or evaluated to comply with this section if such data and
information is produced and evaluated in compliance with §26.15(b) - (c)
of this title.
