(Note: the full white paper from which this post is extracted is available here).
Since 1997, the Senate Bill 1 water planning process has required protection of natural resources as the state determines how to meet needs for water for the future. For example, the basic directive of the legislature in Senate Bill 1 is:
The state water plan shall provide for the orderly development, management and conservation of water resources and preparation for and response to drought conditions, in order that sufficient water will be available at a reasonable cost to ensure public health, safety and welfare, further economic development and protection of agricultural and natural resources of the entire state." (Texas Water Code, Section. 16.051, emphasis added.)
One of the "Guiding Principles" as adopted by the Texas Water Development Board (TWBD) for the 2017 State Water Plan is:
(23) Consideration of environmental water needs, including instream flows and bay and estuary inflows, including adjustments by the [Regional Water Planning Groups] to water management strategies to provide for environmental water needs including instream flows and bay and estuary needs.…( TWDB rule at 31 Texas Admin. Code Section 358.3.)
This guiding principle makes sense not only because of the language in Senate Bill 1, but also because the legislature has enacted two other laws that focus on protecting environmental water needs: Senate Bill 2 in 2001 and Senate Bill 3 in 2007. These laws recognized the important role that water left in rivers and available to flow to bays and estuaries plays in conserving fish and wildlife habitat, protecting healthy timber and agricultural lands, providing recreational opportunities and sustaining economic and cultural values. Even the value of private property along a river and associated riparian rights can vary significantly with the flow conditions in the river.
Yet, to date, the results of work done under Senate Bills 2 and 3 have played a very limited role in determining how Texas will use its water resources over the next 50 years. The work of these bills has not been fully integrated into the Senate Bill 1 water planning process. This next round of regional planning provides an important opportunity to help provide for environmental water needs.
For those regions that want to do more to protect environmental water needs the question is how to use the water planning process. The most straightforward approach would be to treat environmental water needs like other water needs. Healthy river and bay systems need flows that mimic natural conditions, but not necessarily all the water that has historically flowed in them. Once the healthy flow needs are identified, the regional planning groups could develop suggested strategies to meet those needs over time. In many cases, strategies to meet environmental flow needs can work in combination with strategies to provide water for municipal, agricultural or industrial needs
Current TWDB rules and guidance do not treat environmental water needs in the same fashion as other needs, however. Instead, the rules and guidance focus on evaluating the water supply strategies for other needs and then identifying the effects of the strategies on environmental water needs. The rules and guidance suggest that regional water plans and the state water plan need only adjust their strategies for obtaining new water supplies with considerations of existing environmental flows. Thus, if we have already created unhealthy rivers and bays, there is no process to try to reverse that situation over the next 50 years or more.
Thus, the current state approach gives environmental water needs a very limited role in the regional planning process. TWDB rules and guidance do not promote the idea that regional planning groups should find strategies to ensure healthy rivers and bays and, thus, actually develop comprehensive plans that “protect natural resources.”
Second, while TWDB encourages the use of TCEQ "environmental flow standards" under SB 3, TWDB fails to acknowledge that such standards are very limited. They do not reflect the types of flows that scientists and stakeholders in the SB 2 and SB 3 processes determined are needed to sustain a sound ecological environment in our rivers and bays. TCEQ's standards apply only to surface water rights permit applications that seek new appropriations of state water. That is a very different process from one that is seeking to develop strategies to fill water needs for the future.
TWDB rules do, however, allow regional water planning groups to use a different process to develop strategies for meeting environmental water needs in the future. Regional groups wanting to do so simply have to develop their own approach.
There are a number of options for regional planning groups that want to protect and enhance environmental water needs while not limiting the growth of cities, industries or agriculture.
For example, the Brazos River Authority (BRA) sends large amounts of water from Possum Kingdom Lake downstream to Lake Granbury for transfer to Squaw Creek Lake and use there by Luminant as cooling water for the Comanche Peak Nuclear Power Plant. That water could be delivered in different ways from Possum Kingdom Lake. It could be released in one large pulse once a day or once a week, leaving the river mostly dry the rest of the time. It could be released at a constant low flow. Or BRA could send the water down in a fashion that meets some, possibly all, of the SB 3 recommendations for environmental water needs in the segment of the river between the two lakes.
Thus, the Region G planning group could, with the assistance of BRA and Luminant, develop strategies for meeting all or some of the recommendations of scientists and stakeholders who worked to develop an environmental flow regime for that segment of the river under Senate Bill 3. Water needed for existing and new uses could be released in a fashion that also helps meet the environmental flow needs identified in the SB 3 process.
As discussed in detail in the white paper, while such an approach is not encouraged by the TWDB rules and guidelines, it is not prohibited. It will, unfortunately, be up to the regional planning groups to take the initiative in the 2016 round of planning with little assistance from TWDB.