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Agency Activities: Water Availability (FY2013-2014)

The following summarizes the agency’s activities regarding drought, water rights, groundwater management, evaluations of river basins without a watermaster, the Brazos watermaster, and Texas interstate river compacts. (Part of Chapter 2—Biennial Report to the 84th Legislature, FY2013-FY2014)

Water Availability

Drought Persists

Texas has experienced a historical drought in recent years, with the drought of 2011 being a record breaker. By mid-2014, almost 45 percent of the state remained in severe, extreme, or exceptional drought.

As the state agency charged with managing surface water rights, 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). Water-right holders not getting their entitled water can call on the TCEQ to enforce the priority doctrine—a priority call.

In recent years, the TCEQ has received multiple 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 have resulted in the suspension or curtailment of more than 1,000 water rights. When drought conditions abated, these priority calls were rescinded and suspensions lifted, allowing junior water-right holders the opportunity to use and store water.

During times of drought, TCEQ field personnel enforce curtailments through ground-level and aerial investigations. They also conduct streamflow monitoring to aid agency decisions regarding curtailments and management of priority calls.

Agency Response

The TCEQ has engaged in proactive steps to respond to extreme drought. It communicates information about drought conditions and permit suspensions to state leadership, legislative officials, county judges, county extension agents, holders of water-right permits, and the media.

This response is coordinated through the TCEQ’s Drought Team, a multidisciplinary agency group that began meeting in 2010. The team issues updates on the status of drought conditions and agency response activities. Agencies invited to team meetings are partners such as the Texas Department of Emergency Management, Texas Department of Agriculture, and Texas Water Development Board.

The TCEQ has conducted a number of outreach and assistance activities—specifically targeting public water systems—to help prevent systems from running out of water. The agency also contacted public water suppliers to urge implementation of drought contingency plans. Personnel offered assistance to any public water systems experiencing critical conditions (see Chapter One, “Drought Fosters New Approaches”).

The agency intensively monitors a targeted list of public water systems that have a limited or an unknown supply of water remaining. Employees offer 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.

Since 2011, the TCEQ has given technical assistance to more than 100 public water systems by expediting reviews for plans and specifications for drilling additional wells, moving surface water intakes to deeper waters, and finding interconnections with adjacent water systems without compromising the drinking-water quality and capacity needs for other systems. Technical assistance is prioritized for at-risk drought-affected public water systems seeking alternative water sources and regional water planning through interconnections with other systems.

In addition, since 2011 the TCEQ has performed an estimated 250 drought-related emergency reviews for plans and specifications and exceptions to TCEQ rules.

As of August 2014, 788 public water systems in Texas had activated mandatory water restrictions, while another 391 relied on voluntary measures to cut back on water use. For the complete list, see www.tceq.texas.gov/goto/pws-restrictions.

Alternative Treatment

As drought conditions around the state persisted into the spring and summer of 2014, public water systems reported to the TCEQ when their mandatory water restrictions were implemented.

In the search to find alternate water sources, desalination has been gaining attention as some communities seek to treat saline groundwater to make it potable. In response, the TCEQ took action to streamline the approval process for these facilities. In 2013, the agency implemented a process that allows the use of computer modeling as an alternative to on-site pilot studies for the approval of groundwater desalination systems.

The agency also initiated rulemaking to streamline construction approval for public water systems asking to conduct brackish-water desalination.

In addition, the TCEQ began reviewing a number of innovative water-supply projects. Ongoing drought conditions have required some public water systems to explore one strategy not previously considered—using raw water sources. One alternative involves not just reclaiming effluent from municipal wastewater treatment plants for non-potable uses such as irrigation and industry, but also additional treatment to remove chemical and microbiological contaminants found in effluent. With this process, the treated water becomes safe for human consumption.

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Water Rights

Water flowing in Texas creeks, rivers, lakes, and bays is state water. The right to use water may be acquired through appropriation via the permitting processes established in state law. Permit applications for new water are reviewed by the TCEQ for administrative and technical requirements related to conservation, water availability, and the environment.

In fiscal 2013 and 2014, the agency processed a total of 702 water-rights actions, including new permits and amendments, water-supply contracts, and ownership transfers. In addition, the TCEQ engaged in extensive outreach efforts to help water-right holders remain in compliance with water-use reporting requirements mandated by statute.

Because of limited water availability, some cities, governments, businesses, and individuals have begun turning to indirect reuse or groundwater as a source of supply. With indirect reuse or groundwater, an authority or individual may discharge effluent or groundwater into a stream, subsequently divert the effluent or groundwater, and use (or reuse) it for irrigation or some other purpose. These types of projects require a bed-and-banks permit. A total of eight indirect reuse authorizations were issued in fiscal 2013 and 2014.

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. House Bill 3 and Senate Bill 3 changed the process by which the state would decide the flow that needs to be preserved in the watercourse for the environment, requiring the consideration of both environmental and other public interests. This change required the TCEQ to adopt rules for environmental-flow standards for Texas’ rivers and bays.

Adoption of the third and final rulemaking for the environmental-flow standards was completed in February 2014. The 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.

Texas Instream Flow Program

The Texas Instream Flow Program, established in 2001, is a cooperative effort by the TCEQ, Texas Water Development Board, and 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 are scheduled to be completed by the end of 2016.

Groundwater Management

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

In 2015, the TCEQ and the Texas Water Development Board will submit a joint legislative report that details fiscal 2013–14 activities relating to priority groundwater management areas and the creation and operation of groundwater conservation districts.

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 must be readopted and approved at least once every five years. The state’s GCDs have completed the first round of groundwater management area planning in order to adopt desired future conditions for their groundwater. The TWDB has sent 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.

The TCEQ actively monitors and ensures GCD compliance to meet management-plan adoption and readoption requirements. The agency also takes action in the following instances:

  • when the State Auditor’s Office determines that a GCD is not operational in achieving the objectives of its management plan, or
  • in response to a petition from an affected party requesting an inquiry into the management-plan implementation actions of a GCD.

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Evaluations of River Basins without a Watermaster

Under 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. Agency staff is directed to report its findings and make recommendations to the commission.

In 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, conducted in 2012, included the Brazos and Colorado River basins, along with the Brazos-Colorado and Colorado-Lavaca coastal basins.

In 2013, evaluations were conducted for the Trinity and San Jacinto river basins and the Trinity–San Jacinto and San Jacinto–Brazos coastal basins. For 2014, the third evaluation year, the TCEQ evaluated the Sabine and Neches river basins and the Neches-Trinity coastal basin.

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

Brazos Watermaster

In April 2014, the TCEQ directed that a watermaster be appointed for the Upper Brazos River Basin, which includes Possum Kingdom Lake and below. This directive was in response to a petition by 35 water-right holders in the Brazos River Basin.

The petitioner’s request was referred to the State Office of Administrative Hearings, and the final order establishing the watermaster position was approved. After hosting a series of public meetings and setting up an advisory committee, the agency expects the Brazos River Watermaster program to be fully established by early fiscal 2016.

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.

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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 compact contains references and terms that were crafted to ensure that sufficient water was provided to the Rio Grande Project.

Rio Grande Watershed map

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 by the 57:43 percent 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 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 percent 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 TCEQ 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 factual information to support its position, evidence grows that New Mexico’s actions have significantly affected, and will continue to affect, water deliveries to Texas. As of August 2014, all parties were awaiting further procedural rulings from the Supreme Court.

(Update: On Nov. 3, 2014, the Supreme Court appointed a special master in this case with authority to fix the time and conditions for the filing 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 U.S. almost always involve live testimony and it would be too unwieldy for nine justices to rule on evidentiary objections in real time.)

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 Rio Grande 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 to north of the border. This stands in contrast to the manner in which the United States treats Mexico in regards to the Colorado River. In fact, the United States has always provided Mexico its annual allocation from the Colorado River. The Colorado River and the Rio Grande are both covered by the same 1944 water treaty. Efforts continue through the Texas congressional delegation to address this problem.

A related issue concerns 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 United States and Mexico.

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