TCEQ – Environmental Flows and TCEQ – Environmental Flows and Water Rights PermittingWater Rights Permitting

Bruce Moulton

Policy & Regulations

Texas Commission on Environmental Quality

5.013 General Jurisdiction of 5.013 General Jurisdiction of CommissionCommission

(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 Acquisition of Right to use State WaterState 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 Purposes for Which Water May be Appropriated-§11.023May be Appropriated-§11.023

(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.

§11.0235 Policy Regarding §11.0235 Policy Regarding Waters of the StateWaters 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.

§11.0235 Cont.§11.0235 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.

§11.0235 Cont.§11.0235 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.

§11.0235 Cont.§11.0235 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 RightGranting 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), §11.152– 4. Water Quality-- §11.150– 5. Groundwater or Groundwater Recharge--§11.151

Applications Subject to an Applications Subject to an Environmental AssessmentEnvironmental 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 Instream Flow RecommendationsRecommendations

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 InflowsFreshwater 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 InflowsFreshwater Inflows

Freshwater Inflow studies have been conducted for the seven major estuaries. Studies on the minor estuarine systems are scheduled to be completed by 2008.

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 DataBays & 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 11.1491 of this code and other studies considered by the commission to be reliable…”

Case StudiesCase 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 Lower Colorado River AuthorityAuthority

Water Rights for Highland Lakes adjudicated in 1988

Required a Water Management PlanIncluded maintenance of instream flows and

freshwater inflows for the Matagorda Bay system

In 1992, Instream Flow Study completed

Water Management Plan-Water Management Plan-ProcessProcess

Review of policies and programsSeries of public meetings to solicit inputIssues inventory briefing papers prepared

for each meetingSummaries of meetings prepared for public

review

Instream Flow Needs (LCRA)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)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.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 LCRA Environmental Flow RecommendationsRecommendations

Incorporated into the LCRA Water Management Plan

Dynamic documentFreshwater inflow restudy

Instream Flow Targets (cfs)Instream Flow Targets (cfs)

Month Sub/Cri Sub/Cri Target Target Target

Austin Bastrop Bastrop Eagle Lake Egypt

January 46 120 370 300 240

February 46 120 430 340 280

March 46 500 560 500 360

April 46 500 600 500 390

May 46 500 1030 820 670

June 46 120 830 660 540

July 46 120 370 300 240

August 46 120 240 200 160

September 46 120 400 320 260

October 46 120 470 380 310

November 46 120 370 290 240

December 46 120 340 270 220

Target & Critical Freshwater Target & Critical Freshwater Inflow NeedsInflow Needs

Month Target Needs (1000 AcFt) Critical Needs (1000 AcFt)

January 44.1 14.26

February 45.3 14.26

March 129.1 14.26

April 150.7 14.26

May 162.2 14.26

June 159.3 14.26

July 107.0 14.26

August 59.4 14.26

September 38.8 14.26

October 47.4 14.26

November 44.4 14.26

December 45.2 14.26

TOTAL 1,033.1 171.1

Nueces Estuary Advisory Nueces Estuary Advisory CouncilCouncil

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.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.)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 ActionsCommission Actions

Established Technical Advisory CommitteeActing 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 OrderAgreed Order

1992—Interim Agreed Order Issued1995—Final Agreed Order Issued1997,2001, and 2002—Agreed Order

Amended

Agreed OrderAgreed 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 Target f.w. Inflow Needs(in acft) for the Nueces Estuaryacft) for the Nueces Estuary

MONTH >70% >40-<70% >30-<40% <30%

January 2,500 2,500 1,200 0

February 2,500 2,500 1,200 0

March 3,500 3,500 1,200 0

April 3,500 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 4,500 1,200 0

TOTAL 138,000 97,000 14,400 0

Rincon Overflow Channel

Nueces Overflow Channel

Lake Texana (Palmetto Bend)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.)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 RightsAdjudication of Water Rights

Certificate of Adjudication issued in 1981Amended 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 StudiesEnvironmental 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 Target Inflows (in cfs)-Pass up to…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 1169.3** 5

June 1191.4** 5

July 126.5* 5

August 265.7** 5

September 1027.3** 5

October 708.3** 5

November 68.3* 5

December 79.3* 5

*-Median, **-Mean * Median For DoR

Galveston Bay Freshwater Galveston Bay Freshwater Inflows GroupInflows 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 StatementMission 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 ProcessGBFIG Process

Created WorkgroupDeveloped Work Plan1998—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.)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

RecommendationRecommendation

Inflow Scenario

Quantity

Acft/yr

Historical

Frequency

Target Minimum Frequency

Max H 5.2 million

66% 50%

Min Q 4.2 million

70% 60%

Min Q-Sal

2.5 million

82% 75%

Min Historic

1.8 million

98% 90%

Questions – Discussion