Texas has experienced some serious dry spells in recent years, but the drought of 2011 turned out to be a record breaker. By October, all 254 counties in Texas were experiencing some stage of drought—most in the “exceptional” category.
As the state agency charged with managing surface water rights in Texas, the TCEQ carries out this responsibility primarily through issuing and enforcing water-right permits. Among permitted water-right holders, the permit holders that got their authorization first (senior water rights) are entitled to receive their water before water-right holders that got their authorization later (junior water rights). Any water-right holders not getting their entitled water can call on the TCEQ to enforce the priority doctrine—a priority call.
As drought persisted in 2011, the TCEQ received 15 priority calls on surface water from municipal, industrial, irrigation, and domestic and livestock users in the Brazos, Guadalupe, Colorado, Sabine, and Neches river basins. These priority calls resulted in the suspension or curtailment of more than 1,200 water-right permits, and the TCEQ stopped issuing temporary water-right permits. When drought conditions began to abate, priority calls were rescinded and suspensions lifted, allowing junior water-right holders the opportunity to use and store water.
During the drought, TCEQ field personnel enforced curtailments through ground-level and aerial investigations. They also conducted streamflow monitoring to aid agency decisions regarding curtailments and management of priority calls.
The TCEQ initiated proactive steps as concerns intensified over extreme drought conditions. Information about drought conditions and permit suspensions was communicated to state leadership, legislative officials, county judges, county extension agents, holders of water-right permits, and the media.
This response was coordinated through the TCEQ Drought Team, a multidisciplinary agency group that began meeting in February 2010. The team issued updates on the status of drought conditions and agency response activities. Attending team meetings were agency partners, such as the Texas Department of Emergency Management and the Texas Water Development Board.
The TCEQ conducted a number of outreach and assistance activities—specifically targeting public water systems—in an effort to prevent systems from running out of water. The agency contacted all public water suppliers to urge implementation of drought contingency plans. TCEQ staff offered assistance to any public water systems experiencing critical conditions.
The agency intensively monitored a targeted list of public water systems that had a limited or an unknown supply of water remaining. The TCEQ offered those systems financial, managerial, and technical assistance, such as identifying alternative water sources, coordinating emergency drinking-water planning, and finding possible funding for alternative sources of water.
Because of the exceptional and prolonged nature of the drought, the TCEQ was also called on to assist power plants in managing lake levels and temperatures and to work with the U.S. Army Corps of Engineers to coordinate releases from Lake Whitney.
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Drought Hits Home
When Texas experienced a record drought in 2011, 742 public water systems reported to the TCEQ that they implemented mandatory water restrictions. Weather conditions improved in 2012 and only 171 water systems reported implementing mandatory water restrictions, as of Aug. 20, 2012.
Water flowing in Texas creeks, rivers, lakes, and bays is state water. The right to use it may be acquired through appropriation via the permitting processes established in state law.
Each permit application is reviewed by the TCEQ for administrative and technical requirements to evaluate the proposed project’s likely impact on matters such as other water rights, fish and wildlife habitat, conservation, water availability, and public welfare.
In fiscal 2011 and 2012, the agency processed a total of 792 water-rights actions, including new permits and amendments, water supply contracts, and ownership transfers.
As more surface water rights are issued, available water supplies diminish. For this reason, some cities are turning to indirect reuse of water as a source of supply. With indirect reuse, a city takes effluent that has been discharged into a stream, re-diverts the wastewater, and reuses it for irrigation or some other purpose. This type of project requires a bed-and-banks permit. Of these permits, a total of two were issued in fiscal 2011 and 2012.
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In 2007, the Legislature passed HB 3 and SB 3 relating to the development, management, and preservation of water resources, including the protection of instream flows and freshwater inflows. This legislation changed the process by which the state would decide the flow that needed to be preserved in the watercourse for the environment, considering both environmental and other public interests. The TCEQ is required to adopt rules for environmental flow standards for Texas’ rivers and bays.
Schedule for Adoption of Environmental Flow Standards
TCEQ Rule Adoption
River and Bay Systems
|Sabine and Neches rivers and Sabine Lake Bay; Trinity and San Jacinto rivers; Galveston Bay
|Guadalupe, San Antonio, Mission, and Aransas rivers; Mission, Copano, Aransas, and San Antonio bays; Colorado and Lavaca rivers; Matagorda and Lavaca bays
|Nueces River and Corpus Christi and Baffin bays; Brazos River and its associated bay and estuary system
|Rio Grande, Rio Grande estuary, and Lower Laguna Madre
Once environmental flow standards are adopted for a river basin, the TCEQ’s goal is to protect the standards, along with the interests of senior water-right holders, in the agency’s water-rights permitting process for new appropriations and amendments that increase the amount of water to be taken, stored, or diverted.
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Texas Instream Flow Program
Established in 2001, the Texas Instream Flow Program is a cooperative effort by the TCEQ, the Texas Water Development Board, and the Texas Parks and Wildlife Department to perform scientific studies to determine flow conditions necessary for supporting a sound ecological environment in river basins. Texas Instream Flow Program studies are ongoing in the San Antonio, Brazos, Trinity, and Guadalupe River Basins, and scheduled to be completed by the end of 2016.
The TCEQ is responsible for delineating and designating priority groundwater management areas (PGMAs) (download a PGMA map ) and creating groundwater conservation districts (GCDs) (download a GCD map ) in response to landowner petitions or through the PGMA creation process.
In 2011, the Legislature made changes to the PGMA program, including the requirement that new studies will be undertaken over the next several years to determine whether any areas of the state without GCDs have—or will have—critical groundwater problems in the next 50-year planning cycle.
The TCEQ adopted new rules to implement the 2011 statutory changes, added one PGMA to an existing GCD, and began tracking and pursuing GCD creation in the other PGMAs.
Also, the TCEQ and the Texas Water Development Board (TWDB) will submit a report to the Legislature in 2013 on the following topics: the creation of new GCDs, the status and result of actions in the PGMAs, GCD management planning, and agency-required interactions.
Groundwater conservation districts are the state’s preferred method of groundwater management. Each district is governed by a locally selected board of directors. Under the Texas Water Code, GCDs are authorized and required to permit water wells, develop a management plan, and adopt rules to implement the management plan.
By quantifying and evaluating the groundwater resource on an ongoing basis, GCDs help groundwater users understand the aquifer located in their area, the combined demands on the aquifer, and the need for conservation of the aquifer. A GCD uses aquifer data and public input to develop a plan to manage and conserve groundwater resources. A locally developed management plan outlines goals to conserve and protect the groundwater resources within the aquifers. A GCD implements rules and programs to achieve the plan’s goals through monitoring, registration and permitting, and educational outreach.
A GCD management plan and the “desired future conditions” for a groundwater management area (GMA) must be readopted and approved at least once every five years. The state’s GCDs have completed the first round of GMA planning to adopt desired future conditions for their groundwater resources. The TWDB has provided the estimates of “modeled available groundwater” to the GCDs for their next management plans and to the regional water planning groups for their 2016 plans.
In 2011, the Legislature continued the current law for the first round of GMA planning, but made significant changes to the GMA process for the next cycle of joint planning. The changes apply to GCD responsibilities, petitions for inquiry to the TCEQ, and appeals of desired future conditions to the TWDB.
The TCEQ actively monitors and ensures GCD compliance to meet management-plan adoption and readoption requirements. The agency also takes action when the State Auditor’s Office determines that a GCD is not operational in achieving the objectives of its management plan, and responds to petitions for inquiry of a GCD. TCEQ rules governing these responsibilities were updated in fiscal 2012 to implement the statutory changes.
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Evaluations of River Basins without a Watermaster
Under Sections 11.326(g) and (h) of the Texas Water Code, the TCEQ is required every five years to evaluate river basins that do not have a watermaster program to determine whether a watermaster should be appointed. Staff is directed to report its findings and make recommendations to the commission.
In September 2011, the TCEQ developed a schedule for conducting these evaluations, as well as criteria for developing recommendations. Several basins are to be evaluated each calendar year and findings presented to the commission. The first year of evaluation was 2012, which included the Brazos and Colorado river basins, along with the Brazos-Colorado and Colorado-Lavaca coastal basins. For information about watermaster evaluations, see Appendix D.
Texas Interstate River Compacts
Texas is a party to five interstate river compacts. These compacts apportion the waters of the Canadian, Pecos, Red, Rio Grande, and Sabine rivers between the appropriate states. Interstate compacts form a legal foundation for the equitable division of the water of an interstate stream with the intent of settling each state’s claim to the water.
Rio Grande Compact
The Rio Grande Compact, ratified in 1939, divided the waters of the Rio Grande among the signatory states of Colorado, New Mexico, and Texas from its source in Colorado to Fort Quitman, Texas. The compact did not contain specific language regarding the apportionment of water in and below Elephant Butte Reservoir. However, the compact was drafted and signed against the backdrop of the 1915 Rio Grande Project and a 1938 U.S. Bureau of Reclamation contract that referred to a division of 57 percent to New Mexico and 43 percent to Texas.
The Rio Grande Project (Project) serves the Las Cruces and El Paso areas and includes Elephant Butte Reservoir, along with canals and diversion works in New Mexico and Texas. Historically, Project water has been allocated by the 57/43 division, based on the relative amounts of Project acreage originally identified in each state. Two districts receive Project water: Elephant Butte Irrigation District in New Mexico and El Paso County Water Improvement District No. 1 in Texas. The latter provides the City of El Paso about half of its water.
In 2008, after 20 years of negotiations, the two districts and the Bureau of Reclamation completed an operating agreement for the Rio Grande Project. The agreement acknowledged the 57/43 division of water and established a means of accounting for the allocation. The agreement also settled major issues regarding the impact of large amounts of groundwater development and pumping in New Mexico that affected water deliveries to Texas.
More recently, significant compliance issues have arisen regarding New Mexico’s water use associated with the Rio Grande Compact. In August 2011, New Mexico took action in federal district court to invalidate the 2008 operating agreement. In response to the lawsuit and in coordination with the Legislative Budget Board and the Attorney General’s Office, the TCEQ hired outside counsel with specialized experience in interstate water litigation to ensure protection of Texas’ share of water.
Two international treaties have an impact on water supplies available to Texas. The 1906 convention between the United States and Mexico apportions the waters of the Rio Grande basin above Fort Quitman, Texas, while the 1944 treaty between the United States and Mexico apportions the waters of the Rio Grande basin below Fort Quitman.
An issue remains regarding the accounting of waters in the Rio Grande at Fort Quitman. While the 1906 convention clearly granted 100 percent of all waters below El Paso to Fort Quitman to the United States, the International Boundary and Water Commission has allocated the waters equally between the two countries.
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