TCEQ – Environmental Flows and Water Rights Permitting Bruce Moulton Policy & Regulations Texas Commission on Environmental Quality

5.013 General Jurisdiction of Commission (a) The commission has general jurisdiction over: (l) water and water rights including the issuance of water rights permits, water rights adjudication, cancellation of water rights, and enforcement of water rights;

Acquisition of Right to use State Water The right to the use of state water may be acquired by appropriation in the manner and for the purposes provided in this chapter… (§11.022)

Purposes for Which Water May be Appropriated-§ (a) State water may be appropriated, stored or diverted for: Domestic/Livestock, Municipal, Agricultural & Industrial, Mining, Hydroelectric, Navigation, Recreation & Pleasure, Public Parks, Game Preserves (b)State water also may be appropriated, stored, or diverted for any other beneficial use.

§ Policy Regarding Waters of the State (a) The waters of the state are held in trust for the public, and the right to use state water may be appropriated only as expressly authorized by law. (b) Maintaining the biological soundness of the state’s rivers, lakes, bays, and estuaries is of great importance to the public’s economic health and general well being.

§ Cont. (c) The legislature has expressly required the commission while balancing all other interests to consider and provide for the freshwater inflows necessary to maintain the viability of the state’s bay and estuary systems in the commission’s regular granting of permits for the use of state waters.

§ Cont. (d) The legislature has not expressly authorized granting water rights exclusively for: (1) Instream flows dedicated to environmental needs or inflows to the state’s bay and estuary system; or (2) Other similar beneficial uses.

§ Cont. (e) The fact that greater pressures and demands are being placed on the water resources of the state makes it of paramount importance to reexamine the process for ensuring that these important priorities are effectively addressed in clear delegations of authority to the commission.

Granting a Water Right In its consideration of an application for a new or amended water right, the Commission shall assess the effects, if any, on the issuance of the permit or amendment on: – 1. Bays and Estuaries --§11.147(b) – 2. Existing Instream Uses-- §11.147(d) – 3. Fish & Wildlife Habitats-- §11.147(e), § – 4. Water Quality-- § – 5. Groundwater or Groundwater Recharge--§11.151

Applications Subject to an Environmental Assessment Increase the total appropriative amount Significant change in point of diversion (e.g., moving the diversion point a considerable distance upstream where streamflows are significantly less, moving the diversion point to a tributary, or moving the diversion point into habitat of threatened or endangered species) Change in diversion rate Significant change in place of use

Instream Flow Recommendations Site specific studies – When available, site specific information is used. In the absence of site specific information, staff apply the Lyons’ Method (Bounds and Lyons, 1979). This methodology uses 60% of the median flow during the warm months (March-September) and 40% of median during cool months (October – February). In instances where the 7Q2 value (two year, seven day low flow) is greater than Lyons’, 7Q2 is used.

Freshwater Inflows For permits issued within an area that is within 200 river miles of the coast… the Commission shall include in the permit, to the extent practicable when considering public interests, those conditions necessary to maintain beneficial inflows to any effected bay and estuary system.

Freshwater Inflows Freshwater Inflow studies have been conducted for the seven major estuaries. Studies on the minor estuarine systems are scheduled to be completed by Recommendations for the Lavaca-Colorado Estuary were developed by the Lower Colorado River Authority. Inflow recommendations for three estuaries have been completed by the TPWD in consultation with the TWDB.

Bays & Estuaries Data For purposes of determining conditions necessary to maintain beneficial inflows, the commission shall consider among other factors “…studies and plans specified in Section of this code and other studies considered by the commission to be reliable…”

Case Studies Matagorda Bay (Colorado-Lavaca Estuary): Results of the freshwater inflow study incorporated into LCRA’s Water Management Plan for the Lower Colorado River. Nueces Estuary: Freshwater inflows for Nueces Bay are specified in the Agreed Order for the operation of the Choke Canyon - Lake Corpus Christi system. Lavaca Bay: Freshwater inflow release schedule was developed as part of the LNVA’s Lake Texana water right amendment in 1996.

Lower Colorado River Authority Water Rights for Highland Lakes adjudicated in 1988 Required a Water Management Plan Included maintenance of instream flows and freshwater inflows for the Matagorda Bay system In 1992, Instream Flow Study completed

Water Management Plan- Process Review of policies and programs Series of public meetings to solicit input Issues inventory briefing papers prepared for each meeting Summaries of meetings prepared for public review

Instream Flow Needs (LCRA) MOU with TPWD w/goal of maintaining F&W resources in lower basin Established to sets of flow needs: (1) critical flows and (2) target flows Critical—Daily minimum flows to maintain a “viable” aquatic habitat Target—Daily flows which maximize available aquatic habitat

Bay & Estuary Needs (LCRA) Cooperative agreement w/TWDB,TPWD, and TNRCC to perform study Established two levels of inflow needs: (1) Target and (2) Critical

B&E Needs (LCRA) Cont. Critical—Minimum total annual inflow to keep salinity at 25ppt or below at mouth of rivers. Provide sanctuary during droughts

LCRA Environmental Flow Recommendations Incorporated into the LCRA Water Management Plan Dynamic document Freshwater inflow restudy

Instream Flow Targets (cfs) MonthSub/Cri Target AustinBastrop Eagle LakeEgypt January February March April May June July August September October November December

Target & Critical Freshwater Inflow Needs MonthTarget Needs (1000 AcFt)Critical Needs (1000 AcFt) January February March April May June July August September October November December TOTAL 1,

Nueces Estuary Advisory Council Letter submitted to the TWC in December 1989 alleging non-compliance with special conditions contained in a water right permit held by the City of Corpus Christi and the Nueces River Authority

“SPECIAL” CONDITION 5.B. “Following completion and filling of Choke Canyon Dam and Reservoir, scheduled releases shall be made from the reservoir system at Lake Corpus Christi Dam together with return flows to the estuaries for the proper ecological environment and health of related living marine resources therein. Water provided to the estuaries from the reservoir system under this paragraph shall be released in such quantities and in accordance with such operational procedures as may be ordered by the Commission.

5.B. (Cont.) Permittees shall provide not less than 151,000 acre-feet of water per annum for the estuaries by a combination of releases and spills from the reservoir system at Lake Corpus Christi Dam and return flows to Nueces and Corpus Christi Bays and other receiving estuaries.”

Commission Actions Established Technical Advisory Committee Acting on TAC recommendations, established interim inflow targets and created Nueces Estuary Advisory Council to develop operational procedures to meet the purposes of the Special Condition Issued an Interim Agreed Order

Agreed Order 1992—Interim Agreed Order Issued 1995—Final Agreed Order Issued 1997,2001, and 2002—Agreed Order Amended

Agreed Order The City of Corpus Christi, as Operator of the Reservoir System, shall provide not less than 151, 000 acft of water per annum for the estuaries >70% storage capacity—138,000 acft target >40% but less than 70%--97,000 acft target >30% but less than 40%-- 1,200 acft target* <30%-- Total suspension of Pass-thrus* * Implementation of Drought Contingency Provisions

Target f.w. Inflow Needs(in acft) for the Nueces Estuary MONTH >70%>40-<70%>30-<40% <30% January 2,500 1,200 0 February 2,500 1,200 0 March 3,500 1,200 0 April 3,500 1,200 0 May 25,500 23,500 1,200 0 June 25,500 23,000 1,200 0 July 6,500 4,500 1,200 0 August 6,500 5,000 1,200 0 September 28,500 11,500 1,200 0 October 20,000 9,000 1,200 0 November 9,000 4,000 1,200 0 December 4,500 1,200 0 TOTAL 138,000 97,000 14,400 0

Rincon Overflow Channel Nueces Overflow Channel

Lake Texana (Palmetto Bend) Water Right Permit issued in September 1972 Contained provision: “Until the TWDB has provided for the sale and/or use of all waters authorized to be diverted from this project in the manner prescribed, the TX Water Rights Comm. May, upon application and proper order,…

Provision (Cont.) “…authorize and order the release of State water for any beneficial purpose, including releases of water for research purposes in the Lavaca-Matagorda Bay and Estuary System.”

Adjudication of Water Rights Certificate of Adjudication issued in 1981 Amended in 1985—Provision: This certificate is issued subject to all senior and superior water rights and, as may be determined by the Commission, to the release of water for the maintenance of the Lavaca-Matagorda Bay and Estuary System

Environmental Studies Joint effort by LNRA, TWDB, TPWD, and Sierra Club Certificate amended in 1994 to add Bay and Estuary release schedule 2-tiered approach based on reservoir capacity Pass thru’s based on historical monthly medians and/or means

Target Inflows (in cfs)-Pass up to… Month >78.18% Res. Cap. <78.18% January 84.5* 5* February 142.4* 5 March 86.8* 5 April 806.8** 5 May ** 5 June ** 5 July 126.5* 5 August 265.7** 5 September ** 5 October 708.3** 5 November 68.3* 5 December 79.3* 5 *-Median, **-Mean* Median For DoR

Galveston Bay Freshwater Inflows Group Convened in 1996 through the efforts of the Galveston Bay Foundation, City of Houston, and Trinity River Authority GOAL: Develop a process that will lead to resolution of concerns about freshwater inflows to Galveston Bay

Mission Statement “To reach consensus among stakeholders on an evolving process to develop a scientifically-based management plan and implementation strategies that will provide freshwater inflows to maintain an ecologically sound environment for the Galveston Bay System.”

GBFIG Process Created Workgroup Developed Work Plan 1998—TPWD Preliminary Freshwater Inflow Values – TPWD Staff recommendation of: “Max H (5.22 million acft) as the lowest freshwater inflow target value which generally fulfills the biological needs of the Galveston Estuary on a seasonal basis

GBFIG Process (cont.) In 2001 Final Recommendations Published By TPWD – Recommended: …a target inflow within the range from Min Q (4.16 millions acft) to Max H (5.22 million acft) – Formed the basis for the GBFIG environmental flow recommendations to Region H

Recommendation Inflow Scenario Quantity Acft/yr Historical Frequency Target Minimum Frequency Max H5.2 million 66%50% Min Q4.2 million 70%60% Min Q- Sal 2.5 million 82%75% Min Historic 1.8 million 98%90%

Questions – Discussion