Environmental Flows Under Texas Senate Bill 3: Did We Leave Enough Water for the Fishes? Kirk Winemiller, Dept. of Wildlife and Fisheries Sciences, Texas A&M University

Texas Senate Bill 1 (1997) established regional water planning groups.

Senate Bill 2 (2001) mandated environmental flows research by natural resource agencies (TWDB, TPWD, TCEQ) – established the Texas Instream Flow Program

Senate Bill 3 of the 80 th Texas Legislature (2007) mandated formation of basin stakeholder groups and expert science teams to make environmental flow recommendations using best available information.

The focus is future water rights permitting. Most rights were issued prior to 1985 and have no environmental protection. Of the estimated 7500 rights, fewer than 15% include environmental restrictions. So ….. the burden falls to post-1985 rights to protect environmental flows.

For the past 40 years, the state has relied upon simple desktop approaches for evaluating flow needs of rivers, streams and bays (Lyons Method, 7Q2, etc.).

The goal is to conserve the timing, magnitude & duration of flow components that are essential features of the natural flow regime.

Texas SB 3 Process for Establishing Environmental Flows Environmental Flows Advisory Group 9 members Environmental Flows Science Advisory Committee 9 members Basin and Bay Expert Science Team Appoint Governor- 3 Speaker- 3 Appoint TCEQ Basin and Bay Area Stakeholders Committee 17+ Members Lt. Governor- 3 E-flow Standards Advise

Texas SB 3 Process for Establishing Environmental Flows Environmental Flows Advisory Group 9 members Environmental Flows Science Advisory Committee 9 members Basin and Bay Expert Science Team Appoint Governor- 3 Speaker- 3 Appoint Lt. Governor- 3 E-flow Standards TCEQ Basin and Bay Area Stakeholders Committee 17+ Members Advise

Basin and Bay Expert Science Teams –shall develop environmental flow analyses and a recommended environmental flow regime for the river basin and bay system through a collaborative process designed to achieve a consensus

Basin and Bay Expert Science Teams –shall develop environmental flow analyses and a recommended environmental flow regime for the river basin and bay system through a collaborative process designed to achieve a consensus –the science team must consider all reasonably available science, without regard to the need for the water for other uses

Science Team Biology Subcommittee Environmental Flows Recommendation Subsistence flows: 83 cfs Winter 61 cfs Spring, Summer, Fall Base flows: Dry year: Winter 240 cfs, Spring 106 cfs, Summer 70 cfs, Fall 89 cfs Average year: Winter 424 cfs, Spring 189 cfs, Summer 91 cfs, Fall 138 cfs Wet year: Winter 672 cfs, Spring 335 cfs, Summer 135 cfs, Fall 236 cfs High flow pulses*: 2-per-season: Winter 2,010 cfs, Spring 1,380 cfs, Summer 341 cfs, Fall 712 cfs 1-per-season: Winter 2,070 cfs, Spring 2,070 cfs, Summer 814 cfs, Fall 2,070 cfs 1-per-2 years: 12,400 cfs * high flow pulses have estimated volumes & durations; frequencies may not be attained every year. Village Creek near Kountze, USGS gage

SB3 Accomplishments for the Sabine & Neches Basins Flow Pulses for the Neches River at Evadale Pulse/yr (acre feet x 10 5 ) Science team Stakeholder committee declined to propose TCEQ draft standard Stakeholder committee late submission TCEQ final standard X

SB3 Accomplishments for the Trinity & San Jacinto Basins Flow Pulses for the Trinity River near Romayor Pulse/yr (acre feet x 10 5 ) Science team- regime group Stakeholder committee (regime) TCEQ draft standard TCEQ final standard X Science team- conditional group Stakeholder committee (conditional) X

SB3 Accomplishments for the Colorado & Lavaca Basins Flow Pulses for the Colorado River at Wharton Pulse/yr (acre feet x 10 5 ) Science team Stakeholder committee TCEQ draft standard TCEQ final standard

SB3 Accomplishments for the Guadalupe & San Antonio Basins Flow Pulses for the Guadalupe River at Victoria Pulse/yr (acre feet x 10 5 ) Science team & Stakeholder committee TCEQ draft standard TCEQ final standard

SB3 Accomplishments for the Brazos Basin Flow Pulses for the Brazos River at Richmond Pulse/yr (acre feet x 10 5 ) Science team Stakeholder Committee TCEQ standard ,000 ? 1,019,000

SB3 Accomplishments for the Brazos Basin Flow Pulses for the Brazos River at Richmond Pulse/yr (acre feet x 10 5 ) Science team Stakeholder Committee TCEQ standard ,000 ? 1,019,000 pulse required to connect a young oxbow in the region

Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees:

Water project X has been planned for my region, so the standards need to be low enough to allow that to go forward.

Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees: Water project X has been planned for my region, so the standards need to be low enough to allow that to go forward. We can’t be sure these are the exact values that will satisfy environmental needs, but we know for sure we will need more water for municipal and industrial growth.

Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees: Water project X has been planned for my region, so the standards need to be low enough to allow that to go forward. We can’t be sure these are the exact values that will satisfy environmental needs, but we know for sure we will need more water for municipal and industrial growth. It doesn’t matter if we set them too low, because, except during prolonged drought, it is impossible to divert all of the water from a river.

Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees: Water project X has been planned for my region, so the standards need to be low enough to allow that to go forward. We can’t be sure these are the exact values that will satisfy environmental needs, but we know for sure we will need more water for municipal and industrial growth. It doesn’t matter if we set them too low because, except during prolonged drought, it is impossible to divert all of the water from a river. We don’t have to worry if we set standards too low right now, because we can adjust them later under the adaptive management plan.

SB3 definition of environmental flow regime: “A schedule of flow quantities that reflects seasonal and yearly fluctuations that typically would vary geographically, by specific location in a watershed, and that are shown to be adequate to support a sound ecological environment and to maintain the productivity, extent, and persistence of key aquatic habitats in and along the affected water bodies.”

Saltwater barrier on Lower Neches River Big Thicket Preserve Lower Cypress Tract City of Beaumont MeadeWestvaco paper mill effluent receiving pond

Conclusion: SB3 seemed like a reasonable attempt at a stakeholder- driven, science-based process to produce improved standards for environmental protection during water rights permitting.

Conclusion: But the process broke down at nearly every step as powerful economic/political interests leveraged their positions to ensure that environmental flow protections were set as low as possible, thus having more water available for future appropriations.

Conclusion: Certain stakeholders invoked adaptive management as an insurance policy –– mistakes can be corrected as new information comes forth.

Conclusion: However, the promise of adaptive management also can be used to justify bad decisions that can result in severe and long-lasting impacts.

Rio Grande at Big Bend National Park