Texas Water Matters

Wastewater Treatment

Generally speaking, we only partially treat our wastewater before we discharge it. The final "treatment" of the waste occurs in our rivers, streams, lakes, and estuaries. Although it has often been said that "dilution is not the solution to pollution," we do rely heavily on dilution as part of the treatment process. The amount of pollution that can safely be discharged is very much a function of the amount of flow in the river or stream that receives the pollution. As a result, if river or stream flows are reduced because of increased water diversions, either water quality will decline dramatically or dischargers, such as cities and industries, will have to increase the level of wastewater treatment undertaken. That type of improvement in treatment levels can be extremely expensive because new treatment technologies may be required with accompanying modifications to the treatment plant itself.

page top

close window

Commercial Fishing

click to enlarge

The most obvious commercial activity that is dependent on freshwater flows is commercial fishing. In particular, the multi-million dollar harvests of shrimp, oysters, and crab are dependent on adequate freshwater inflows. However, a tremendous variety of aquatic species, including many fish species, depend on estuaries and freshwater inflows for part of their life cycles. Although many of those species are not commercially harvested, recreational fishing also supports many commercial activities, such as fishing guides, boat and tackle sales, restaurants, hotels, and the like. Many species of other animals, including many birds, feed on aquatic life that depends on freshwater inflows. Bird watching also attracts many people to coastal areas and also helps to support businesses like hotels and restaurants. Probably the most prominent example of this economic effect is associated with tourism around the presence of whooping cranes at the Aransas National Wildlife Refuge. One of the key food items for whooping cranes is blue crab, the abundance of which is tied to adequate freshwater inflows.

Various commercial activities also depend on river-based recreation. Increasingly, rural communities are developing new sources of income, with hunting, fishing, and nature-based tourism becoming increasingly important. Many of those activities revolve around adequate river flows. For example, many campgrounds and business have developed to offer canoeing and tubing opportunities on the Guadalupe River. In other areas, bed and breakfast facilities often feature riverfront views, fishing, and canoeing.

page top

close window

Bottomland Hardwood Forest

Forests located in floodplain areas, particularly those in the eastern portions of Texas, are commonly referred to as bottomland hardwood forests. Not surprisingly, floodplains are found along watercourses. As a result, the areas where reservoirs are located tend to be characterized, at least in their natural states, by bottomland hardwood forests. The Texas Parks and Wildlife Department (TPWD) estimates that at least 63% of the bottomland hardwood forest once occurring in Texas had already been lost by 1980. A TPWD study assessing the potential for terrestrial habitat loss associated with various proposed reservoirs can be viewed at the TPWD website.

page top

close window

Springs

Comanche Springs in Fort Stockton formerly gave rise to a 30-mile long stream. Now, as a result of groundwater pumping, it has ceased to flow other than for brief periods after heavy rainfall. View a historic picture of Comanche Springs in comparison to a current picture.

click to enlarge

Springs have a magical quality. They generally are formed when water trapped under the ground emerges through an opening in the layer of impermeable rock or soil that overlies that particular portion of the aquifer. Springs can give rise to entire rivers and usually are the source of the "desert oasis" of folklore.

Groundwater pumping in excess of recharge lowers aquifer levels and may cause springs to cease to flow. In a 1975 report, Gunnar Brune, the author of the 1981 classic reference book the "Springs of Texas, Volume I," noted that 63 (or almost 25%) of the original 281 major and historically significant springs in Texas had already ceased to flow. Even with that reduction, he estimated that the total annual flow of springs in Texas likely exceeded 3,000,000 acre-feet. In most areas of Texas, groundwater continues to be pumped at rates exceeding recharge, with an accompanying loss of spring flows. [Gunnar Brune's Springs of Texas reference book has recently been reissued and is available through Texas A&M; University Press.]

page top

close window

Bay and Estuary Studies

Over the last three decades, the State of Texas has undertaken extensive studies designed to determine the amount of freshwater needed to maintain healthy and productive coastal estuaries. Those studies have resulted in inflow estimates for each of the major estuary systems in Texas. The studies do not give just one number for each system. Rainfall is variable both from month to month and from year to year. Historically, certain months are much wetter than others. Accordingly, the needs of fish and wildlife also reflect those inflow variations. The detailed study results recognize those needs and give inflow recommendations on a monthly basis.

The study results also recognize that even under natural conditions, low inflow years occurred. Accordingly, the results include a range of flow recommendations designed to reflect natural variation. Basically, the flow recommendations were developed by correlating historic inflows with productivity data for a group of commercially important species. Fortunately, Texas has pretty good historical data from commercial fishery harvests and, in some cases, from direct measurements of species abundance by the Texas Parks and Wildlife Department (TPWD). See the TPWD website for information about these, and other environmental water needs assessments.

page top

close window

Instream Flow Studies

The state has limited specific information about how much flow is needed to protect instream uses in rivers and streams. For a few rivers, intensive studies have been undertaken. Those studies require extensive data collection and, generally, involve estimates of habitat availability at different flow levels. For an example of such a study, visit the Texas Parks and Wildlife Department (TPWD) website to view a report of spring flow requirements for a portion of the San Marcos River.

In 2001, as part of Senate Bill 2, the Texas Legislature directed the TPWD, the Texas Commission on Environmental Quality (TCEQ), and the Texas Water Development Board (TWDB) to undertake larger-scale studies of instream flow needs. However, such intensive studies will take years to complete. In the meantime, placeholder numbers are needed to allow comprehensive water planning to go forward. A number of different "desktop" methods have been used to estimate instream flow needs in the context of developing special conditions for inclusion in water rights permits as a way to minimize harm to instream uses. Most of those methods involve using historical data about stream flows and attempting to minimize the extent to which flows fall below historical levels.

The best way to protect the natural system in the stream is to keep flow patterns as natural as possible, while still allowing reasonable use of water to meet human demands. Because desktop methods are very general, intensive site-specific studies are needed for large reservoir and diversion projects.

page top

close window

Regions H and K Environmental Flows Discussion

Because of the recognition of the importance of Galveston Bay to people in the Houston/Galveston area and because of the leadership of the regional water planning group members, Region H included freshwater inflows for Galveston Bay as a water need in the 2001 and 2006 Regional Water Plans. That estimate is based on the results of the state's inflow needs study for Galveston Bay. Including the inflow requirements as a water need was a major positive step. The next big challenge for the group will be including management strategies designed to ensure that the freshwater inflow needs for the Bay are actually met. Although that was done for other categories of water needs, it was not done for environmental flows. In addition, instream flow needs for rivers and streams were not considered.

The Region K Water Planning Group also incorporated the instream flow and freshwater inflow requirements of the Lower Colorado River Authority's Water Management Plan into the 2001 and 2006 Regional Water Plans. Again, the planning group deserves great credit for having done so. However, the instream flow numbers only address the Colorado River and only the portion of the river below Austin. In addition, as noted above for Region H, the Region K Regional Water Plan also fails to include management strategies designed to ensure that the instream flow and freshwater inflow needs will be met.

page top

close window

Statute and Rules

Senate Bill 1
Senate Bill 1, the law that triggered the current regional water planning process in 1997, addressed the issue of planning to meet environmental needs in several places. First, Senate Bill 1 amended Section 16.051 (a) of the Texas Water Code to require the development of a comprehensive state water plan that, among other things, provides

"for the orderly development, management, and conservation of water resources and preparation for and response to drought conditions, in order that sufficient water will be available at a reasonable cost to ... protect the ... natural resources of the entire state." Senate Bill 1 also provides a consistent directive with respect to the required components of regional water plans. A statutory provision directs that regional plans shall include consideration of

"appropriate provision for environmental water needs and for the effect of upstream development on the bays, estuaries, and arms of the Gulf of Mexico and the effect of plans on navigation." Texas Water Code, Section 16.053 (e)(4)(F). It is impossible for the regional planning groups to meet these requirements without considering the water needs of fish and wildlife, particularly those species directly dependent on stream and river flows.

Senate Bill 2
Senate Bill 2, which was passed in 2001, amended the planning requirements to make it clear that the Texas Water Development Board (TWDB) cannot approve a regional water plan without first determining that it meets certain minimum requirements. Thus, for the 2006 round of planning and any future rounds, the Board cannot approve a regional plan unless it specifically finds

"the plan is consistent with long-term protection of the state's ... natural resources as embodied in the [Board's] guidance principles. Texas Water Code, Section 16.053 (h)(7).

Texas Water Development Board Rules
The TWDB, however, has refused to revise its rules regarding environmental flow protection, which are supposed to implement the water planning laws. In its response to comments, the TWDB declined to clarify the duty of planning groups to consider environmental flows needed to protect natural resources, saying:

"The planning structure has been designed to provide for environmental water needs by assuring that water development is planned in a way that to leave sufficient water for environmental purposes in the waterways of the state. This is consistent with the current regulatory system for protection of water resources. While the regional water planning groups would be free, if they desired, to specifically target a water flow for environmental needs, this is not, in the Board's opinion, required either under the statute nor is it the practice in the regulatory process." (Texas Register, p. 11028, Dec. 28, 2001).

Basically, the TWDB has said they intend to rely exclusively on conditions in new water rights as the way to protect environmental flows. However, conditions on new rights only minimize the extent to which the new project will make things worse. That approach fails to address cumulative impacts of multiple projects and fails to do anything to help in situations where existing water rights already are inconsistent with the protection of environmental flows. The TWDB's response also seems to ignore the role of the Texas Water Trust. The Trust is a part of the regulatory system that the Legislature directed the TWDB to use as a way to convert existing water rights to environmental flow protection.

page top

close window

Region L Impacts

The 2001 and 2006 Region L Water Plans include significant, substantive discussion about the potential adverse environmental impacts of various water management strategies. That is important for a couple of reasons. First, from a public policy perspective, we ought to know as much as possible, within the limits of reasonable inquiry, about all options being considered so policy makers can make informed decisions. Second, having this information allows planning group members to avoid choosing options that are not likely to meet permitting requirements because of environmental problems. The Region L planning group members and their consultants deserve credit for providing good information for use in making those decisions. During the preparation of the 2006 regional plan, with the support of the planning group, the National Wildlife Federation collaborated with the Region L consultants to perform an assessment of the impacts of the overall regional plan on freshwater inflows to San Antonio Bay. That information was included in Chapter 7 of the plan as part of the assessment of consistency of the plan with long-term protection of the state's water resources, natural resources, and agricultural resources.

Unfortunately, most of the other regional plans include only perfunctory reviews and consideration of environmental impacts of management strategies. NWF did collaborate with Region M to perform a review of impacts on freshwater inflows to the Laguna Madre. Unfortunately, there was not sufficient time to include a review of inflows to the estuarine portion of the Rio Grande. For many plans, the environmental review consisted of little more than a simple table with notations of whether environmental impacts were considered major or minor. In reality, even with the new requirement in the rules for a "quantitative assessment" of environmental impacts, most of the 2006 regional water plans still fail to reflect careful consideration of those impacts.

page top

close window

Designating Unique Stream Segments

Regional water planning groups have the ability to recommend designation of a sensitive river and stream segments as having "unique ecological value". A segment's uniqueness can be based on biological or hydrologic functions, the presence of riparian conservation areas, high water quality, exceptional aquatic life, high aesthetic value, threatened or endangered species, or unique communities. Visit the Texas Parks and Wildlife Department (TPWD) website to see which river and stream segments in Texas are identified as potentially deserving of the designation.

Region H was the only group to recommend segments for designation during the first round of regional planning. Those recommendations are forwarded to the Texas Legislature and only the Legislature can actually designate a stream segment. The designations recommended by Region H were not considered during the 2003 session of the Texas Legislature. All of the other regional groups claimed that the impact of designation was too unclear, and asked the Legislature for clarification. Through Senate Bill 2, the Legislature has clarified and limited the significance of such designations:

"This designation solely means that a state agency or political subdivision of the state may not finance the actual construction of a reservoir in a specific river or stream segment designated by the legislature...."

Thus, the effect of designating an ecologically unique stream segment would simply be to stop public financing for a reservoir directly in the designated portion of a stream or river. In addition, Senate Bill 2 directs the regional planning groups to assess the potential impacts of their plan on designated unique segments.

page top

close window

Permitting Process

Surface water rights permitting in Texas, in its broadest sense, began in the late 1800s. With only very limited exceptions, Texas water rights, like those in most western states, are based on a "first-in-time, first-in-right" principle that is often called the "prior appropriation" doctrine. That means the oldest right has "priority" or the first claim to water. During wet periods, priority usually is irrelevant because there is enough water to meet all demands. However, in times of shortage, only the people with the most senior rights may be able to get the full amount of water they are authorized to divert. This may mean that the holder of an upstream water right with a priority date junior to a downstream water right

will not be able to divert water and must let flows pass downstream so the holder of the downstream (and senior) water right can get his or her water.

The Texas Commission on Environmental Quality (TCEQ) administers water rights permitting in Texas. Water rights permits usually have a definite priority date; specify the location, amount, and rate at which water can be diverted from a stream; and specify the use to which the water can be put. In addition, most water rights are perpetual.

Many eastern states in the U.S. rely on a riparian rights system of water allocation. Under that system, everyone with property along a watercourse may use water as long as their use doesn't unduly harm other people with rights to use the water. That system works well only when the supply of water greatly exceeds demands. For a while, Texas recognized both the appropriation doctrine and the riparian rights doctrine. However, because riparian rights are not quantified, it is very hard to know how much water is available for new users. As a result, during the 1960s, the Texas Legislature created an adjudication process through which all surface water rights would be quantified and converted to paper rights, called "certificates of adjudication." The only surface water body in the state that has not been adjudicated is a portion of the Rio Grande near El Paso. The adjudication process there is currently underway.

As a result of the adjudication statutes, riparian rights currently are only recognized in an amount of up to 200 acre-feet and only for one of three uses: domestic, livestock, or wildlife. The other exceptions to the "first-in-time, first-in-right" principle occur in the portions of the Rio Grande below Amistad Reservoir. There, Texas courts established a system of equitable water rights as a way to administer competing claims. Those court decisions paved the way for the creation of the adjudication process used in the rest of the state.

page top

close window

Water Availability Map

Click to view Water Availability Map

New water rights may only be issued when there is water available even after all existing water rights get all of the water they are entitled to get. Generally, there is much less water available during dry periods. For most types of permits, most of the requested water must be available even during drought conditions before a new water right will be issued. The map above depicts, in a very general manner, whether additional water is still available to support new permits, during dry conditions, for various areas of the state. Historically, for various reasons, including poor information, water rights often were issued for more water than was available in the stream or river. Thus, for some of the areas indicated as "water being fully used during dry periods," there may not be enough water to satisfy all of the existing rights, much less to provide for environmental flows. The state has recently developed new water availability models designed to give more accurate estimates of how much water is available after existing rights are honored.

page top

close window

Rio Grande and Nueces Examples

click to enlarge

In 2001, for the first time in recorded history, the Rio Grande stopped flowing without reaching the Gulf of Mexico. Basically, the flow of the river was so low that it did not have enough force to push back the sand carried by ocean currents. Those low flows resulted from a combination of natural drought conditions and from human diversions. Fortunately, increased rainfall has restored that connection, at least for now. Because of the huge demands for water from the Rio Grande, which led to the creation of three huge reservoirs on the Rio Grande itself and numerous others on its tributaries, the Rio Grande has become more of a water delivery canal than a river. This is a sobering fate for the "great river" that once supported extensive riverboat traffic upstream to Roma, with one 150-foot long side-wheeler traveling all the way up to Laredo during the mid-1800s.

click to enlarge

Using the state's new water availability models, it is possible to predict what river flows would be like if all water rights were fully exercised. This graph is an example of such a prediction. It depicts flows on the Nueces River near Carrizo Springs. The "naturalized flows" are a representation of the flows expected to occur without any significant alterations caused by human diversion or impoundment of water. That is, they represent a baseline of the environmental flow basically unaffected by man. The future flow conditions are what is predicted to occur during dry periods if all existing water rights are fully exercised, including the absence of return flows. That is, they represent the future conditions that have been authorized and that can be expected to exist absent steps to protect or restore environmental flows.

page top

close window

San Marcos River Foundation Water Rights Application

In 2000, the San Marcos River Foundation (SMRF) applied for a water right to keep water flowing in the San Marcos River, the lower portion of the Guadalupe River, and into San Antonio Bay. Unlike most other water right applicants, the SMRF application does not seek to make exclusive use of the public's water. It seeks to make sure that the public has the right to enjoy the water in the river for the long-term. On April 2, 2002, American Rivers, a nation-wide river advocacy group based in Washington, D.C., declared the Guadalupe Basin one of the nation's Top Ten Most Endangered Rivers.

SMRF filed a water right application for instream flows in the amount of 1.15 million acre-feet per year, which is the amount of inflow recommended in state studies for San Antonio Bay. SMRF stated in its application that the water right, if granted, would be donated to the state-operated Texas Water Trust.

The application has encountered strong opposition from many of the entities that have for years applied for, and received, rights to divert the public's water out of rivers, but who are now expressing opposition to the concept that there can be a right to keep water in a river. Many others are puzzled over why it should be considered acceptable for one person to divert public water to irrigate a golf course or a grain field solely for private profit but not acceptable to get a right ensuring that water will stay in the river for the public to enjoy. Opponents also have raised concerns that the amount of water requested will tie up all of the remaining water that is available for permitting. In many dry years, there will be not be enough water available to meet even close to the amount requested for bay and estuary inflows. However, in other wetter years, significant additional water beyond that requested will be available. Regardless, TCEQ would determine how much of the requested amount to authorize.

The TCEQ Commissioners dismissed the SMRF application in April, 2003 contending, contrary to agency staff analysis, that the agency did not have authority to issue the requested permit. SMRF appealed the dismissal to district court. In February 2006, Judge Suzanne Covington granted a motion for partial summary judgment filed by SMRF, and by several other entities appealing dismissals of similar applications. In granting the motion, Judge Covington found that TCEQ had erred in its dismissal of the application. National Wildlife Federation and Environmental Defense filed an amicus brief supporting the appeals of TCEQ's decisions, arguing that current Texas law does authorize these types of permits. The Judge's ruling [link here to judge's orders] indicates that instream water rights are indeed authorized under Texas laws. This favorable ruling also extends to the similar applications filed by the Caddo Lake Institute, Matagorda Bay Foundation, and a joint application filed by the Galveston Bay Foundation and Galveston Bay Conservation and Preservation Association. Judge Covington has now issued a final order in the SMRF appeal. TCEQ has appealed that ruling to the Court of Appeals. Because some issues in the other appeals remain unresolved, those cases are still pending before Judge Covington in district court. Scroll to the bottom of this page to read Covington's orders.

For more information about SMRF and the application visit www.sanmarcosriver.org.

page top

close window

Texas Water Trust

In 1997, as part of Senate Bill 1, the Texas Legislature created the Texas Water Trust

"to hold water rights dedicated to environmental needs, including instream flows, water quality, fish and wildlife habitat, or bay and estuary inflows."

The Texas Water Development Board (TWDB) administers the Trust. The concept of the Water Trust is that water rights, such as an unused irrigation right can be placed in the Water Trust, either for a limited period of time or permanently, for use in meeting instream flow needs. Thus, a person with a water right who is concerned about protecting river flows or bay and estuary inflows can donate the water right to the Trust.

While in the Trust, water rights are protected from cancellation. Water rights are a right to "use" water for a specific purpose and if the water is not used, the right can be cancelled so the state can reallocate the water. The Texas Commission on Environmental Quality (TCEQ) has the power to cancel water rights that aren't used for a period of ten years. In spite of this authority, with only very rare exception, water rights are not cancelled.

In November 2003, the first donation was made to the Texas Water Trust. Kit Bramblett, a West Texas Attorney, donated water rights totaling 1,236 acre-feet per year of water to the Texas Parks and Wildlife Department for placement in the Trust. The right is located on the Rio Grande in the stretch of the river between El Paso and Big Bend National Park. More recently, Texas State University, in San Marcos, donated a right to about 33,000 acre-feet per year of water near the headwaters of the San Marcos River to the Trust.

page top

close window

Return Flows

Return flows of treated wastewater and irrigation water are extremely important components of existing flows in Texas rivers and streams. In dry periods, many streams and rivers would virtually cease to flow without return flows. In some instances, return flows serve to replace some of the flows that have been captured by upstream dams and diversions. In other instances, the return flows represent water from interbasin transfers or distant groundwater sources that would not naturally have been present in the stream. Water that is not consumed during its authorized use, such as treated wastewater and irrigation tailwater, generally must be returned to a surface water body. However, most permits do authorize the entire amount diverted to be completely consumed as long as it is used in a beneficial fashion consistent with the type of use authorized. Thus, for example, under Texas law, water diverted and used for municipal purposes can be treated and reused for municipal purposes over and over again until it is completely consumed. As long as the water stays in the municipal treatment system or pipelines, no additional authorization is required for such "direct reuse." However, if an entity seeks to reuse water by discharging it into a stream and then diverting an equal quantity of water downstream, a separate type of authorization is required for such "indirect reuse."

When indirect reuse is authorized by TCEQ, the agency, with limited exceptions, has authority to impose special conditions to protect other water rights and to protect environmental flows. The special conditions may require that a portion of the discharged water be left in the stream. Many such applications for indirect reuse authorizations are currently pending before TCEQ. However, because direct reuse does not require additional authorization, there generally is no guarantee that any return flows will continue to be available to meet environmental flow needs or to supply downstream water rights. There are rare instances in which existing permits require that a specific amount of the water diverted must be put back in the stream in the form of return flows.

page top

close window

Judge Covington's Orders

Judge Covington's initial decisions on all cases

Judge Covington's Initial ruling in SMRF's appeal

Judge Covington's final judgment in SMRF's appeal

Judge Covington's initial ruling in appeal by Caddo Lake Institute

Judge Covington's initial ruling in appeals by Galveston Bay Conservation and Preservation Association and Galveston Bay Foundation and by Matagorda Bay Foundation

page top

close window