Agency Activities: Water Availability (FY2019-2020)

Water Availability

Managing Surface Water Rights

TCEQ is charged with managing state surface water in Texas. The agency implements its authority through permitting and enforcement of surface water rights. The use of water for domestic or livestock purposes is considered a superior water right that does not require a permit. TCEQ is responsible for protecting senior and superior water rights, as well as for ensuring that water right holders divert state water only in accordance with their permits.

Texas water law specifies that in times of shortage, permitted water rights will be administered based on the priority date of each water right, also known as the prior appropriation doctrine—that is, the earliest in time is senior. Additionally, exempt domestic and livestock uses are superior to permitted rights. Among permitted water right holders, the permit holders that received their authorization first (senior water rights) are entitled to take their water before water right holders that received their authorization on a later date (junior water rights). Additionally, exempt domestic and livestock uses are superior to permitted rights. Senior or superior water right holders not able to take their authorized water can call on TCEQ to enforce the priority doctrine (a priority call).

Under the TCEQ v. Texas Farm Bureau decision, if suspension is necessary to satisfy a priority call by a senior or superior water right holder, TCEQ will not be able to exempt any junior water rights. This includes exemptions based on public health, safety, or welfare concerns for junior water rights used for municipal purposes or power generation.

Managing Water Availability During Drought

TCEQ is engaged to respond to extreme drought. The agency's focus on drought response and its activities include monitoring conditions across the state, expedited processing of drought-related water rights applications, priority call response, and participating in multi-disciplinary task force meetings. TCEQ also communicates information about drought to state leaders, legislative officials, county judges, county extension agents, holders of water right permits, and the media.

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Drinking Water Systems

The TCEQ Public Drinking Water Program is responsible for ensuring that the citizens of Texas receive a safe and adequate supply of drinking water. TCEQ carries out this responsibility by implementing the Safe Drinking Water Act. All public water systems are required to register with TCEQ, provide documentation to show that they meet state and federal requirements, and evaluate the quality of the drinking water.

Exploring New Supplies through Alternative Treatment

The population of Texas is expected to reach almost 46 million by the year 2060. Planning well in advance is critical to sustaining Texas' increasing water needs in a state that experiences prolonged droughts, floods, and other challenges. Recognizing this, more and more public water systems are beginning to propose the use of less-conventional sources of water that often require complex innovative treatment. TCEQ's engineers and scientists use their expertise to help guide public water systems through the process of selecting appropriate innovative treatment technologies, and to ultimately grant approvals for those technologies while ensuring that the treated water is safe for human consumption. Some examples of challenging water sources that require innovative treatment technologies are groundwater with elevated levels of nitrates, radionuclides, or other contaminants; saline or brackish groundwater; seawater; and effluent from municipal wastewater treatment plants reclaimed for direct potable reuse.

Disaster Preparedness

TCEQ encourages public water systems to take an all-hazards approach in preparing their water system for any disaster and to become more resilient prior to and following a disaster. TCEQ's public website addresses natural-disaster preparedness, drought contingency plan reporting, drinking water flood information, homeland security FAQs for public water systems, information on regulatory guidance, and mutual-aid assistance through the Texas Water/Wastewater Agency Response Network (TXWARN). In addition, TCEQ's Water Security Contract provides educational workshops and seminars to public water systems across the state covering topics such as risk assessments, emergency response planning, hazard mitigation funding, disaster relief funding, drought workshops and emergency management resources. TCEQ's educational and disaster preparedness resources assist public water systems in providing a safe, adequate and continuous supply of drinking water to their customers before, during and after a disaster.

In addition to the education and preparedness resources, public drinking water drought-response activities are coordinated through TCEQ's Drought Team. The team issues updates on the status of drought conditions and continues to monitor a targeted list of PWSs that have a limited supply of water. In addition, the multi-agency Emergency Drinking Water Task Force, which was formed to respond to drought emergencies at public water systems, currently meets quarterly to discuss the systems being tracked and opportunities for outreach, funding, and assistance.

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Water Rights Permitting

Water flowing in Texas creeks, rivers, lakes, and bays is state water. The right to use state water may be acquired through appropriation via permitting as established in state law. An authorization (permit or certificate of adjudication) is required to divert, use, or store state water or to use the bed and banks of a watercourse to convey water. However, there are several specific uses of state water that are exempt from the requirement to obtain a water right permit, such as domestic and livestock (D&L) purposes. For any new appropriation of state surface water, the Texas Water Code requires TCEQ to determine whether water is available in the source of supply. Once obtained, a surface water authorization is perpetual, with the exception of some temporary and term authorizations.

TCEQ reviews permit applications for new appropriations of state water for administrative and technical requirements related to conservation, water availability, and the environment. In addition to new appropriation requests, the agency also reviews amendment applications and other applications including bed-and-bank authorizations, reuse, and temporary water rights. In fiscal 2019 and 2020, the agency processed 217 water rights actions, including new permits, amendments, water-supply contracts, and transfers of ownership.

Major changes to state water policy (for example, developing environmental flow standards), drought, complex applications, and other projects can shift TCEQ water rights permitting staff from permitting activities. Beginning in 2007, several of these factors affected water rights processing. The result was an increase in pending permit applications, 355 by early 2016. That number has since been reduced to 168 as of September 2020. Figure 3 shows the number of water right permit applications pending with TCEQ from November 2014 to August 2020. This graph shows TCEQ's recalibration efforts.

TCEQ continues to strongly encourage pre-application meetings to assist applicants in developing more complete applications, limiting time extensions granted to applicants to respond to requests for information, and implementing return policies when an applicant is unresponsive. Additionally, LEAN management tools and practices have been applied to the water rights permitting process to streamline the process and assist with identifying and solving process problems. LEAN management incorporates continuous improvement into the management process. In addition, TCEQ has engaged in outreach efforts to help water right holders remain in compliance with statutory requirements for reporting water use. Whenever possible, TCEQ has reached out to water rights stakeholders and has increased its presence and availability at water conferences and other events.

Fast Track Permitting

Not all water right applications require the same level of technical review. In July 2016, the Water Rights Permitting program began a "Fast Track" pilot program designed to provide for more streamlined processing for less complex water right applications. This program was largely successful, with 337 Fast Track applications processed between July 2016 and August 2020, at a median processing time of 280 days.

In 2020, TCEQ reviewed and revised the program based on its successes and challenges over the four-year pilot program. The Fast Track program now streamlines Fast Track application processing through a modified LEAN prioritization system. Additionally, application types that did not fit the program were removed, while other types were added. TCEQ will continue to evaluate the Fast Track program to ensure focus on the overall goal of providing streamlined permit processing for less complex applications while adapting to changes in the water rights permitting program.

Texas Water Rights Viewer

In September 2019, TCEQ launched the Texas Water Rights Viewer. The Viewer is a GIS-based tool that houses water rights information. The Viewer makes a wide range of information easily available to the public in a spatial format. The water rights permit data available includes copies of water right permits, water right ownership data, and water-use data. Prior to the Viewer, obtaining much of this data required an in-person search of TCEQ records or a Public Information Request.

Changes of Ownership and Water Use Reports

TCEQ processes ownership changes in support of water rights permitting statewide. Current ownership information ensures that proper notice information is received by water rights permit holders. Additionally, current owner information is critical to ensure that information is conveyed to the appropriate permit holder to achieve the desired effect of actions taken to meet a priority call during drought.

TCEQ also requires the completion of Water Use Reports to support modeling efforts and enforcement of water rights. Water Use Reports are sent to water rights permit holders outside of watermaster areas on Jan. 1 of each year and are due back to TCEQ on March 1. The return rate for these reports was 72% for the 2019 water year, but this actually represents approximately 95% of the permitted water in the state.

Water Conservation and Drought Contingency Plans

Under Texas Water Code, Chapter 11, and Title 30 Texas Administrative Code, Chapter 288, certain water right holders and other entities are required to develop, implement, and submit updated Water Conservation Plans (WCPs) (including Water Conservation Implementation Reports) and Drought Contingency Plans (DCPs) to TCEQ every five years. The most recent deadline to submit updated WCPs and DCPs to TCEQ was May 1, 2019. As of September 1, 2020, TCEQ has completed the review of 90% (1,162 of 1,288) of the required plans.

Changes in Water Rights Permitting

In 2019, the 86th Texas Legislature passed two bills relating to surface water rights that required changes to TCEQ's rules. House Bill (HB) 1964 streamlined the water rights permitting process for simple amendments to a water right that do not affect other water rights or the environment. HB 720 removed permitting barriers for water right applications for new appropriation and amendments that include (1) storage in an aquifer storage and recovery (ASR) project for later recovery for the ultimate authorized beneficial use under an appropriation and (2) aquifer recharge (AR) projects. TCEQ implemented the requirements of these bills in a single rulemaking adopted in May 2020.

In April 2019, TCEQ adopted rules to complete implementation of HB 2031 from the 84th Legislature by designating discharge and diversion zones based on a Marine Seawater Desalination Diversion and Discharge Zone Study completed by the Texas Parks and Wildlife Department and the General Land Office. In April 2019, in response to a petition for rulemaking, TCEQ also adopted rules to provide an exception from notice requirements for applications to extend the time to commence or complete construction of a reservoir designed for storage of more than 50,000 acre-feet of water.

Environmental Flows

In 2007, the Legislature passed two landmark measures relating to the development, management, and preservation of water resources, including the protection of instream flows and freshwater inflows. The measures changed how the state determines the flow that needs to be preserved in the watercourse for the environment, requiring the consideration of both environmental and other public interests.

TCEQ adopted rules for environmental flow standards for Texas' rivers and bays through three rulemakings. The third rulemaking for the environmental flow standards was completed in February 2014. TCEQ's ongoing goal is to protect the flow standards—along with the interests of senior water-rights 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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Evaluations of River Basins without a Watermaster

Under Section 11.326 of the Texas Water Code, 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. Agency personnel are directed to report their findings and make recommendations to the commission.

In 2011, TCEQ developed a schedule for conducting these evaluations, as well as criteria for developing recommendations. TCEQ has completed one five-year cycle of evaluations. The agency is currently in the second five-year cycle. In 2019, TCEQ evaluated the Sabine and Neches River basins. In 2020, TCEQ evaluated the Canadian and Red River basins.

The commission did not create a watermaster program on its own motion at the conclusion of any evaluation year. In the first five-year cycle, TCEQ expended approximately $570,000 total in staff time, travel costs, and other administrative costs to conduct evaluations. In the first and second years of the second five-year cycle, the agency expended approximately $198,000.

For more information, see Appendix D, "Evaluation of Water Basins in Texas without a Watermaster."

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Texas Interstate River Compacts

Texas is a party to five interstate river compacts. These compacts apportion the waters of the Canadian, Pecos, Red, and Sabine rivers and the Rio Grande 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 wording 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% to New Mexico and 43% to Texas. The compact contains references and terms to ensure sufficient water to the Rio Grande Project.

The 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. The project water was to be allocated according to 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 (EBID), in New Mexico, and El Paso County Water Improvement District No. 1 (EP#1), in Texas. The latter supplies the city of El Paso with 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 was a compromise to resolve major issues regarding the impact of large amounts of groundwater development and pumping in New Mexico that affected water deliveries to Texas.

But significant compliance issues continue regarding New Mexico's water use associated with the Rio Grande Compact. In 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 Rio Grande Compact Commission of Texas hired outside counsel and technical experts with specialized experience in interstate water litigation to protect Texas' share of water.

In January 2013, Texas filed litigation with the U.S. Supreme Court. A year later, the Supreme Court granted Texas' motion and accepted the case. Subsequently, the United States filed a motion to intervene as a plaintiff on Texas' side, which was granted.

As Texas develops information to support its position, evidence grows that New Mexico's actions have significantly affected, and will continue to affect, water deliveries to Texas. On Nov. 3, 2014, the Supreme Court appointed a special master in this case with authority to fix the time and conditions for the filings of additional pleadings, to direct subsequent proceedings, to summon witnesses, to issue subpoenas, and to take such evidence as may be introduced. The special master was also directed to submit reports to the Supreme Court as he may deem appropriate.

A "special master" is appointed by the Supreme Court to carry out actions on its behalf such as the taking of evidence and making rulings. The Supreme Court can then assess the special master's ruling much as a normal appeals court would, rather than conduct the trial itself. This is necessary as trials in the United States almost always involve live testimony and it would be too unwieldy for nine justices to rule on evidentiary objections in real time.

Motions to Intervene filed by EP#1 and EBID were referred to the special master. Following a hearing on the motions conducted Aug. 19–20, 2016, the special master filed his First Interim Report with the Supreme Court on Feb. 13, 2017. He recommended denying the motions to intervene filed by EP#1 and EBID as well as New Mexico's motion to dismiss. The First Interim Report was also very favorable to Texas' position.

On Oct. 10, 2017, the Supreme Court ruled to dismiss New Mexico's motion to dismiss Texas' complaint. The court also denied the motions by EBID and EP#1 to intervene. Various motions to file amicus curiae briefs were granted. (Amicus curiae: literally "friend of the court"—persons that are not party to the case that are allowed to present points of law or information to the court.) The exception of the United States and the first exception of Colorado to the First Interim Report of the Special Master were heard during oral arguments by the Supreme Court on Jan. 8, 2018. On March 5, 2018, the court ruled that the United States may pursue the compact claims it has pleaded in the litigation and all other exceptions were denied.

A new special master, Judge Michael Melloy, was appointed by the Supreme Court on April 2, 2018. New Mexico filed a response to Texas' complaint on May 22, 2018, denying the allegations and filed counterclaims against Texas and the United States. Texas submitted a response on July 20, 2018, to counterclaims filed by New Mexico. Texas generally denied all the counterclaims and requested they be dismissed. An Amendment to the Case Management Order was issued by the Special Master on Jan. 31, 2019. Additionally, the Special Master dismissed most of New Mexico's counterclaims on March 31, 2020.

Due to the COVID-19 emergency, deposition discovery was originally stayed until April 2020. The Special Master then extended discovery through August 2020. All other discovery, including the submission and responses to interrogatories and exchanges of documents, is continuing. The Special Master has scheduled bi-weekly status videoconferences.

The trial is currently scheduled for late 2021, but this may change, depending on Special Master rulings that are taken up to the Supreme Court for review. A mediator has been appointed to try to settle the issues.

International Treaties

Two international treaties have a major 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 basin below Fort Quitman.

Mexico continues to under-deliver water to the United States under the 1944 treaty. Mexico does not treat the United States as a water user and only relies on significant rainfalls to make deliveries of water. This stands in contrast to the manner in which the United States treats Mexico with regard to the Colorado River. In fact, the United States has always supplied Mexico its annual allocation from the Colorado River. The Colorado River and the Rio Grande are both covered by the same 1944 treaty. Efforts continue through the Texas congressional delegation to address this problem.

Mexico's failure to deliver 1944 treaty water and overall water-management strategies have negative impacts on Texas, especially in the Lower Rio Grande Valley below Falcon Dam. Mexican drains of irrigation tailwater—including the Morillo Drain, which continues to function below the capacity specified by the minutes of the 1944 treaty—negatively affect salinity levels in the Rio Grande below Falcon Dam. Salinity levels above 1,000 mg/L compromise crops and municipal water systems. The Rio Grande Watermaster monitors salinity levels and provides notifications to stakeholders when salinity in the Rio Grande below Falcon Dam is elevated.

A related issue concerns the accounting of waters in the Rio Grande at Fort Quitman. While the 1906 convention clearly granted to the United States 100% of all waters between El Paso and Fort Quitman, the International Boundary and Water Commission has allocated the waters equally between the United States and Mexico.

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Groundwater

TCEQ is responsible for delineating and designating priority groundwater management areas (PGMAs) and creating groundwater conservation districts in response to landowner petitions or through the PGMA process.

In 2021, TCEQ and the Texas Water Development Board will submit a joint legislative report that details activities in fiscal biennium 2019–20 relating to PGMAs and the creation and operation of groundwater conservation districts.

Groundwater conservation districts (GCDs), each governed by a locally selected board of directors, are the state's preferred method of groundwater management. Under the Texas Water Code, GCDs are authorized and required to issue permits for water wells, develop a management plan, and adopt rules to implement the plan. The plan and the "desired future conditions" for a groundwater management area must be readopted and approved at least once every five years. TCEQ actively monitors and ensures GCD compliance to meet requirements for adoption and re-adoption of management plans.

TCEQ also has responsibility for supporting the activities of the interagency Texas Groundwater Protection Committee (TGPC). Texas Water Code, Sections 26.401–26.408, enacted by the 71st Texas Legislature (1989), established non-degradation of the state's groundwater resources as the goal for all state programs. The same legislation created the TGPC to bridge gaps between existing state groundwater programs and to optimize groundwater quality protection by improving coordination among agencies involved in groundwater activities.

Three of the TGPC's principal mandated activities are:

• Developing and updating a comprehensive groundwater protection strategy for the state.
• Publishing an annual report on groundwater monitoring activities and cases of documented groundwater contamination associated with activities regulated by state agencies.
• Preparing and publishing a biennial report to the legislature describing these activities, identifying gaps in programs, and recommending actions to address those gaps.

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