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Water for the Environment Water is a vital feature of Texas' natural heritage. Fish and wildlife depend on water flowing in rivers and streams to sustain riparian vegetation and wetland areas and supply the bays and estuaries along the Gulf Coast with freshwater inflows. More than any other factor, the availability of water will determine the future of fish and wildlife in our state. Initially, all of the spring flows and stream and river flows in Texas were available as environmental flows. That has changed dramatically as more and more water has been withdrawn for use by humans. Fortunately, nature is adaptable and can tolerate reasonable reductions in flows as a result of human use. The big questions to be answered are how much those flows can be reduced without destroying our natural heritage and how do we make sure adequate flows are maintained. Topics  Role of Environmental Flows Determining Environmental Flow Needs Environmental Flows and Water Planning Ways to Protect Environmental Flows What You Can Do Additional ResourcesRelated Information History of the Study Commission on Water for Environmental Flows (2003 - 2004) and the Environmental Flows Advisory Committee (2006) New Environmental Flows Provisions - 2007 Role of Environmental Flows "Environmental flows" do much more than support fish, other aquatic organisms, and wildlife. We rely on in-place stream and river flows for recreation, to dilute and further treat our wastewater, for livestock watering, for commercial activity, and much more. Obviously, fish need water of sufficient quantity and quality to have a place to live. They also need higher flows at certain times in order to allow them to move to spawning grounds and complete their life cycles. Many other species, including many birds, rely on wetlands for their habitat. Many wetland habitats, especially bottomland hardwood forests, depend on periodic out-of-bank flows from river systems. As more and more reservoirs are built and more water is diverted, these natural flow patterns are reduced or lost. Although we usually think of environmental flows as referring to surface water resources, groundwater usage also greatly affects fish and wildlife in Texas. Especially during dry periods, many streams and rivers would cease to flow without the contributions of springs and seeps. In many parts of the state, groundwater is being pumped out faster than it is replenished by rainfall. As a result, many of the large springs in Texas already have ceased to flow.  back to topDetermining Environmental Flow Needs One difficult issue in protecting environmental flows is determining how much flow is needed to protect fish and wildlife. Different species and activities may need varying amounts of flow at different times. In addition, the amount of water available may vary from year to year. In drought years, we need to leave enough water in streams and rivers to allow fish and wildlife to survive and in wetter years we need to leave enough to allow them to thrive. There are two broad categories of environmental flows: instream flows and freshwater inflows (see Define It! in the side column). Various techniques are available for determining how much flow is needed. In the case of freshwater inflows to bays and estuaries, the state has funded extensive scientific studies resulting in determinations about some aspects of inflow needs for every major estuary system in the state. More limited work has been done on determining instream flow needs. However, intensive studies have been done on some rivers and in 2001 the state created the Instream Flow Program to establish and continually maintain an instream flow data collection and evaluation program. In addition, there are desktop methods that can quickly provide estimates of instream flow requirements in the absence of intensive studies. Another method, sometimes referred to as the "collaborative scientific approach", is increasingly being recognized as providing a way to quickly develop estimates of environmental flow needs. This method, which has grown out of efforts led by The Nature Conservancy, involves convening a panel of scientific experts with a broad range of relevant knowledge and charging the panel with coming up with an agreed-upon set of flow recommendations based on the best information available at the time. The method also involves recognition of the need to employ "adaptive management" concepts to allow the flow protections to be modified later to varying degrees as new information becomes available. back to topEnvironmental Flows and Water Planning Although the relevant statutes and the Texas Water Development Board's rules seem to require that the regional water plans include water for environmental flow, the plans continue to fall short. One hurdle is that the overall planning process still fails to recognize environmental flows as a category of water need. Environmental water needs constitute a demand for water that must be met along with municipal, agricultural, and industrial demands. Two of the planning regions (H, which includes Houston, and K, which includes Austin and the lower Colorado River area) stand out for having at least recognized the environment as a water need. Unfortunately, not even those groups included measures designed to ensure that water would be left in streams and rivers to meet that need. A couple of other planning groups also acknowledged the need for environmental flows to be more fully addressed. Region E (Far West Texas Region, which includes El Paso) included a formal recommendation to that effect and Region M (the Rio Grande Valley Region) discussed the potential for more meaningful consideration of environmental needs. Two separate environmental flow inquiries are needed.
Planning groups also have the option of recommending the designation of unique stream segments. Only a handful of designations were recommended. Unfortunately, the planning groups had limited money to complete the planning process and environmental issues generally got little attention. Because insufficient attention has been paid to the environmental flows issue, the planning process has failed to develop truly comprehensive plans that address all water needs, including environmental needs. A comprehensive water plan that includes water for environmental needs and also avoids unnecessarily destructive projects is more likely to contain projects that will pass permitting requirements and be implemented than a plan that is prepared without careful consideration of those factors. back to topWays to Protect Environmental Flows Unfortunately, the water needs of fish and wildlife have been largely ignored in water allocation in Texas. Although surface water is owned in common by all Texans, individuals can obtain perpetual permits to divert and use water. With over 22,000,000 acre-feet (see Define It! in the side column) of consumptive rights permitted, the right to use the vast majority of Texas' water has already been granted by the State. 
Permit ConditionsFor permits issued before 1985, impacts on fish and wildlife generally weren't even considered. Since 1985, the Texas Commission on Environmental Quality (TCEQ) and its predecessor agencies, are directed to include some level of environmental flow protections on new water rights issued for any purpose. Such conditions normally involve a restriction on when, or how much, water can be taken from a river or stream in order to ensure some environmental flow downstream. Thus, such permit conditions serve to minimize the extent to which new water rights permits granted for other purposes adversely affect environmental flows. The level of protection provided by such permit conditions varies widely from permit to permit Because the rights to divert most of the surface water in the state were issued before 1985, most permits do not have any conditions to protect the environment. About 92% of the water rights currently authorized were issued prior to 1985. Texas, like most western states, operates primarily on the prior appropriation system in which the oldest water rights have the first claim on the available water. That makes the absence of flow protections on older rights particularly problematic. In a number of river basins, permits were issued for all (and in some cases more than all) of the water that would be present in the stream during dry periods. That means if all water rights were fully used, those streams and rivers would be dry except during wetter years. Fortunately, because many water rights currently aren't fully used, most of our rivers do continue to flow, but that may well change. In addition, the flow in many streams and rivers increasingly depends on "return flows" of treated wastewater. As many water users consider reusing more and more of the wastewater that historically has been discharged, it is critical to consider the impact on environmental flows. The National Wildlife Federation recently undertook a detailed study of freshwater inflows. That study, titled Bays in Peril, found that five of the seven major bay systems in the state would face serious problems if existing water rights were fully used and wastewater reuse were increased significantly. The NWF report did not consider the additional impacts that could result from currently pending applications for new water diversion permits. Other Approaches to Environmental Flow Protection There are a variety of mechanisms for ensuring that water will be left in streams and rivers to meet environmental flow needs, including issuing environmental flow permits, formally setting aside unappropriated water, and adjusting existing water rights. Environmental Flow Permits One such method would be to obtain a water rights permit that is just like other such permits except that instead of diverting water out, the water would be protected so that it would remain in the stream. Some Texas water rights do include instream flows as one of the authorized uses of the water. However, the San Marcos River Foundation (SMRF) and several other organizations, made history in 2000 by applying for new water right permits solely to keep water flowing in our rivers, and into our wetlands and bays. The applications generated vocal opposition and the TCEQ Commissioners dismissed the applications without allowing for a formal evidentiary hearing. Several of the applicants have filed legal appeals of the TCEQ action dismissing the applications and those appeals currently are ongoing. In initial rulings on those appeals, Judge Suzanne Covington determined that TCEQ erred in interpreting the law when it dismissed those applications. In response to those applications, Legislature enacted a temporary moratorium prohibiting any new permits for environmental flow protection, which expired in 2005. That same legislation also created a Study Commission on Water for Environmental Flows, which was charged with responsibility to consider ways to protect environmental flows. The Study Commission issued recommendations for an approach to flow protection that was included as Article 1 of Senate Bill 3 in 2005. Because Senate Bill 3 was not adopted in 2005, Governor Perry appointed an Environmental Flows Advisory Committee to continue work on the environmental flows issue. Finally on the last day of the 2007 Session of the Texas Legislature, a new Senate Bill 3 was adopted which establishes an Environmental Flows Allocation Process. The new Senate Bill 3 provides that new permits for environmental flow protection won't be available in the future and that, instead, the State will formally set some water aside for environmental flow protection in areas where unappropriated water still is available. Water set-aside, or reserved, in this way will not be available for permitting for any other use. In some parts of the state, there is little or no unappropriated water available to be set aside, whether by permit or other means, for environmental flows. In other words, in those places, permits have been granted authorizing the taking and use of virtually all of the water that would be in the river, at least during relatively dry periods. The new Senate Bill 3 does expressly provide that existing permits for other uses may be converted to environmental flow protection purposes. Adjustments to Existing Water Rights For areas without significant amounts of unappropriated water available even in dry years, some method of adjusting existing water rights will be needed in order to ensure water for the environment. Attempts to impose new involuntary restrictions on existing water rights would be extremely contentious. As a result, voluntary approaches are needed. One way that could be done is through donations or purchases of existing water rights to be placed in the Texas Water Trust. Another way would be for the state to put new flow protections on existing permits when changes to those permits are requested. For example, when permits are sold or otherwise put to new uses not originally authorized, the state might condition the transfer by requiring reasonable flow protections. Similarly, the state might consider mechanisms for ensuring that reasonable amounts of wastewater return flows will continue to be returned to streams and rivers. back to topWhat You Can Do The only way to ensure that Texas streams, rivers and bays are protected is to let policy-makers know that is what Texans want. Here are examples of things YOU can do: Get involved in or stay abreast of the Environmental Flows Allocation Process, the new state process for identifying and preserving flowing rivers and freshwater inflows into Texas coastal bays and estuaries. back to topAdditional Resources San Marcos River Foundation Texas Commission on Environmental Quality TWDB Regional Water Planning Website TPWD Texas Water Websiteback to top
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