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TWCA MEMBERS TO GATHER IN DALLAS… The 68th Annual Convention of the Texas Water Conservation Association will convene in Dallas on March 7, 2012 with a packed schedule of speakers, as well as Committee meetings, Panel Caucuses and the TWCA Board meeting. The conference is being held at the Sheraton Dallas Hotel. More than 400 participants are expected to attend from all across Texas. The drought is expected to dominate the presentations and discussion. One of the emerging concerns, now that some welcome rain has fallen in parts of the state, is how to avoid the tendency to prematurely celebrate the end of the dry cycle. As the State’s Climatologist, Dr. John Nielsen-Gammon, has put it quite succinctly, “The drought isn’t over until all the lakes are full.” Conference participants will have ample opportunity to learn about the drought’s impacts on Texas cities and water providers and drought mitigation strategies, and to consider short and long term water supply and quality outlooks. Speaking during the first day’s Water Laws Session is State Representative Jim Keffer, Chair of the House Energy Resources Committee (right). Dr. Jim Davenport, Texas Commission on Environmental Quality (TCEQ), will discuss Effects of the Drought on Surface Water Quality in Texas during the Water Quality Session. On March 8th, during the Panel Speaker Session, attendees will get an up close and personal look at How the Drought Has Affected Business from the perspective of river authorities, municipalities, and

industry. Mark Vickery (left), Executive Director of the TCEQ, will provide an update on that agency’s activities. Kris Polly, former Deputy Assistant Secretary for Water & Science of the U.S. Department of the Interior and now with Water Strategies LLP, is the featured speaker at the NWRA-TWCA luncheon. The afternoon’s Panel presentations include a

March 2012

Texas WaterConservation Association221 E. 9th Street, Ste. 206Austin, Texas 78701-2510

512-472-7216Fax: 512-472-0537http://www.twca.org

OfficersJames M. Parks,

President

Luana Buckner,President-Elect

Sonia K. Lambert,Immediate Past President

Association StaffLeroy GoodsonGeneral Manager

e-mail: lgoodson@twca.org

Dean RobbinsAssistant General Manager

drobbins@twca.org

Opinions expressed inConfluence are those of thewriter and not necessarily

those of TWCA, its officers,directors or staff.© 2012, TWCA

Continued on page 4

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Approaching the end of my time as president of this outstanding organization, I find myself reflecting on how much has happened during the past year. Who could have imagined that we would still be battling a record-shattering drought in some areas of the state...while welcome winter rains are easing the problem in others? Who could have predicted the devastating losses in the cattle and agricultural segments of the

state’s economy? Texans are a resilient people...we are almost never satisfied to give up in face of diversity. Borrowing a 1961 quote included in the Executive Summary of the 2012 State Water Plan, here’s a thought that certainly hits home: “If Texans cannot change the weather, they can at least — through sound, farsighted planning — conserve and develop water resources to supply their needs.” We find ourselves sorely in need of some enhanced crystal ball skills to get a sneak peek into what Mother Nature has in store for us in the months and years ahead. Uncertainty is the enemy of viable strategic planning, and it impacts our ability to develop sufficient water supplies for the not-so-good times that might lie ahead. There is some news on this front, however. A young Texas A&M University researcher, Dr. Steven Quiring, is using a five-year, $486,000 grant from the National Science Foundation to discover if climatologists might be able to predict a drought the way meteorologists forecast the weather. As Mark Twain is credited with saying, “Climate is what we expect...weather is what we get.” Quiring hopes to improve predictions so they are “accurate enough for decision makers to be confident in decisions that put their financial future on the line.” He says understanding current conditions is a key factor for making weather or seasonal predictions. The project is homing in on a critical void in our drought knowledge base and will build new data from soil moisture monitoring stations and archive it in one central location. As the team points out, even if the project only produces a standardized database with this information, that will be a huge step forward. There is something else going on around the state…something that started out slowly, but is building in momentum and impact. People from diverse backgrounds and vocations are coming together — much as they did in frontier days — to combat a common foe: drought and water supply issues. Folks have been asking questions that no one can answer: “What happens if it doesn’t rain?” and “How long can it possibly last?” It is just human nature to have a more positive attitude about a problem if you feel as though you’re doing something about it, and that you’re not alone in seeking a resolution. The number of meetings, seminars, forums, symposiums and

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conferences dedicated to water conservation has been increasing in frequency and visibility. It could have something to do with that hackneyed political phrase, “Never let a crisis go to waste.” Maybe individuals are just ready to hear the message. Regardless of the impetus, however, people are seeking collaboration and new or innovative ideas for developing sustainable water resource management strategies, and for help to promote public support and understanding that water conserving measures are indeed essential for economic growth. There is general agreement that we need to take a closer look at how we “spend” the state’s finite water. It all boils down to making informed decisions. The wasteful use of water has to stop. It is time to reassess our water use patterns, and start doing some serious thinking about the water legacy we’ll leave for our children and grandchildren. One of the latest in these series of meetings was the Inaugural Texas Panhandle Water Conservation Symposium held recently in Amarillo that attracted an overflow crowd of almost 400 people. The event, spearheaded by C.E. Williams, General Manager of the Panhandle Groundwater Conservation District, was attended by people from all walks of life — water industry managers, educators, city managers, elected officials, water operators, farmers and ranchers. The sponsors were groundwater conservation districts, cities, agricultural and livestock organizations, energy producers, Texas A&M Agrilife, an engineering company, and irrigation firms. Also on board were the Alliance for Water Efficiency and the Texas Water Foundation. Topics addressed by a wide range of speakers included the drought, drought, and more drought. Media coverage of the event was thorough and fair, acknowledging that people had come together to share information and experiences, and are in search of innovative solutions to share. Now, as the diverse membership of the TWCA comes together for its annual meeting, the devastating impacts of the drought are very much on our minds. It’s true that we cannot change the weather, but we can learn to improve our planning processes by integrating new sources of data; to fine-tune mitigation efforts; collaborate on finding workable solutions; and concentrate on doing what is necessary to develop much-needed water infrastructure. The passage of Proposition 2 is an excellent example of what can be accomplished when assorted groups come together to achieve a common goal. The TWDB will now be able to provide the critical financial assistance so desperately needed by a host of political subdivisions to complete the water supply projects laid out in the State Water Plan. In closing, I want to thank everyone associated with TWCA for the opportunity to serve as your president. It has been an exciting and fulfilling experience, and I look forward to doing my part to help reach the organization’s goals in the years to come.

pumping, the area later reverted to dry-land farming,but has partially recovered its groundwater since.”Williams speculates that the partial recovery might bedue to “return flow” of excess irrigation water movingdown, or that it might be “perched’ water that is notreally in the Ogalalla…both guesses, he is quick toadd.

After graduation, John was employed by theU. S. Bureau of Reclamation (USBR) in Austin. “Agroup of students and new graduates were put to workto survey for the proposed Texas Basins Project,which, had it been completed, would have built alarge canal across the coastal plains from the SabineRiver to the Coastal Bend area. Its purpose was totake ‘surplus’ water from the eastern basins for use byfarmers and the industrial complex along the coast.”According to Williams, this study was a direct resultof the drought. “While the canal was never built,” hesaid, “some of the reservoirs surveyed were ultimatelyput in place (e.g., Lake Texana, east of Edna inJackson County).”

In reminiscing about the 1950s drought, Johnadded, “Let’s not forget that the Panhandle suffereda series of shorter droughts during the period 1974-1982. While I was not acutely aware of the 1950s dryperiod during most of the years it was happening, thecombination of its effects pushed me in the direction

STAMFORD DAM CONSTRUCTIONJohn Williams, Continued

of my life’s work. Unbeknowst to me, towns in theHigh Plains were pushing for construction of whatbecame Lake Meredith…to preserve precious ground-water by supplying municipal and industrial water froma surface source.” Initially sent to Amarillo in 1961by the USBR to gain some field constructionexperience, John was named General Manager of theCRMWA in 1968 and remained in that capacity untilhe retired at the end of 2001. Still active, he worksthere part time in an advisory capacity.

Thanks to John’s many years of service to hiscommunity and to the world of water, future residentsof this thirsty region will benefit from his commitmentand passion for securing a reliable long term watersupply.

About the Author: Hugh Wynn is the CFO of Save H2O Texas, Inc., a tax-exempt corporation specializing in water conservationeducation.In addition to researching and writing a number of student books and classroom materials used to teach youngsters aboutthe importance of water conservation through Texas history, Wynn authored “West of the Crosstimbers” -- a critically acclaimednovel about Texas in the late 1800’s.

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discussion of activities of the U.S Army Corps of Engineers and are followed by the TWCA Board of Directors meeting. Capping off the day’s business sessions is a Reception and the Dinner and Awards Program, with TWCA President Jim Parks presiding. The featured dinner speaker will be Todd Staples, Texas Commissioner of Agriculture (see page 13). “We especially want to thank the generous hosts and sponsors of this year’s Annual Convention, as well as all our members and presenters who’ll take time away from their busy schedules to travel to Dallas,” said Leroy Goodson, TWCA General Manager. “Having this opportunity to get together each year to share experiences and information, to consider emerging issues that have potential to impact all of us, and to hear the perspectives of key elected and state officials enables us to make more informed

decisions down the road.” The Convention’s final morning General Session is packed with presentations on critical issues, including the Bastrop Fire, electric reliability, and solar power opt ions for the water industry. State Senator Craig Estes (left), Chair, Senate Agriculture and Rural Affairs Committee and Vice Chair, Senate Natural Resources Committee, and Dr. David Brown (be low le f t ) , Regional Climate Services Director, Southern Region,

National Oceanic and Atmospheric Administration (NOAA), will share their unique perspectives on the Texas Senate and the drought, respectively. The incoming president, Luana Buckner, Medina County Groundwater Conservation District, will make closing remarks.

Our Appreciation and thanks to the following sponsors:

CH2M Hill for sponsoring the name badges

CONVENTION SPONSORSWe also want to thank the following hosts and

Sponsors of the TWCA 2012 Annual

Convention

PLATINUM SPONSORSFreese and Nichols, Inc.

Halff Associates, Inc. Lloyd Gosselink Rochelle & Townsend, P.C.

Aqua Water Supply Corporation Klotz Associates, Inc.

SAIC, Environment & Infrastructure LLC

GOLD SPONSORSHDR Engineering, Inc.

Northwest Pipe Company

ARCADIS/Malcolm Pirnie

Kimley-Horn & Associates, Inc.

Fugro Consultants, Inc.

Ron Lewis & Associates

First Southwest Company

Kemp Smith, LLP

Alan Plummer Associates, Inc.

McCall, Parkhurst & Horton LLP

Brown & Gay Engineers, Inc.

LBG-Guyton Associates

SILVER SPONSORSTWCA Risk Management Fund

Booth, Ahrens & Werkenthin, P.C.

Bickerstaff Heath Delgado Acosta LLP

BRONZE SPONSORSHillCo Partners

Parsons Water & Infrastructure

TWCA 68Th ANNUAL CONVENTIONContinued from page 1

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Texas supreme CourT advisory Edwards Aquifer Authority and State of Texas v. Burrell Day and Joel McDaniel from Atascosa County and the Fourth District Court of Appeals, San Antonio For petitioner Edwards Aquifer Authority: Pamela Stanton Baron, Austin For petitioner State of Texas: Kristofer S. Monson, Austin For cross-petitioners/respondents: Tom Joseph, San Antonio AFFIRMED, opinion by Justice Hecht: The principal issue is whether landowners within the Edwards Aquifer boundaries own the groundwater under their property and are entitled to a constitutional takings claim based on the Edwards Aquifer Authority’s restrictions on its use. This appeal arises from Day and McDaniel’s challenge to the aquifer authority’s limited irrigation permit to pump water on their property. In an appeal from the aquifer authority’s permit ruling, allowing a permit for 600 acre-feet of water to be drawn from a well instead of 700 acre-feet Day and McDaniel sought, an administrative law judge found historical use – the basis for the aquifer authority’s permits to use aquifer water – justified only 14 acre-feet. On appeal to the district court, the court determined that water filling a 50-acre lake on the Day-McDaniel property and used at one time for irrigation came from the aquifer and established their right to a permit to take more water. The court rejected their constitutional takings claim. The court of appeals reversed, holding in part that the landowners had a vested right to aquifer water beneath their land but that groundwater flowing into the reservoir was “state water” subject to state regulation. The Supreme Court HOLDS that groundwater “in place” beneath real property is owned by the landowner and the Edwards Aquifer Authority’s restrictions on it based on historical

use can constitute a takings claim against the state. The Court reasons, based in part Lingle v. Chevron U.S.A. Inc. [at 538-39, citing Penn Central Transportation Co. v. New York], that the aquifer authority’s permitting based on historical use is a policy departure from the Texas Water Code’s permitting factors without justification. Neither the authority nor the state has suggested a reason why the Edwards Aquifer Authority Act must be more restrictive in permitting groundwater use than Water Code chapter 36, nor does the act suggest any justification. But even if one existed, a landowner cannot be deprived of all beneficial use of the groundwater below his property merely because he did not use it during an historical period and supply is limited. The Court notes the authority’s arguments that holding its restrictions to be subject to compensation would “disastrous,” but says the authority identified only three takings claims in more than 15 years. The expense of possible litigation cannot be denied, but groundwater regulation need not result in takings liability. The Legislature’s general approach to such regulation has been to require that all relevant factors be taken into account. The Legislature can discharge its responsibility under the Conservation Amendment without triggering the Takings Clause. But the takings clause ensures that the problems of a limited public resource — the water supply — are shared by the public, not foisted onto a few. The burden of the takings clause on government is no reason to excuse its applicability. The Court reasons that groundwater in place is owned by the landowner on the basis of oil and gas law. No basis in the differences between groundwater and oil and gas leads to the conclusion that the common law allows ownership of oil and gas in place but not groundwater, citing Eliff v. Texon Drilling Co., 210 S.W.2d 558, 561 (Tex. 1948), and legislative decision in the Texas Water Code chapter 36. Groundwater rights are property rights subject to constitutional protection, whatever difficulties may lie in determining adequate compensation for a taking.

Texas Supreme Court Advisory, February 24, 2012.

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TExAs WATEr DAy 2012

by J. Tom Ray, Lockwood, Andrews & Newnam, Inc.

In 2012, there was a new Congress and a new format for Texas Water Day. This year, the emphasis was on having Members and key water agency and Committee staff speak to the assembled group of Texas Water Day participants. This speakers’ series was augmented by dispatching small groups on a single priority water issue to relevant Members offices. As in past years, the Participants meet

p r i o r t o t h e main event—on Tuesday evening and Wednesday m o r n i n g t o receive a briefing on each priority water issue, to

discuss the day’s events, and to hear from Gary Loew on Corps budget challenges.

Texas Water Speakers Series Members of our Texas Congressional delegation, the heads of the US Army Corps of Engineers, the Bureau of Reclamation, the USGS, and staff directors of two key water-related House Congressional Committees came together to speak to an assembled 80 or so Texas Water Day participants. Each of these speakers shared their perspective on water for the nation and water for Texas and allowed adequater time for questions from the participants. The Texas Water Speakers Series, keynoted by Congresswoman Kay Granger (below left), included ten additional Texas House

Members and, at noon, Senator John Cornyn addressed the group. The Texas Members who spoke represented a good cross-section of the Texas delegation. There were Members with seniority -- including

the Representatives R a l p h H a l l , Silvestre Reyes, Pete Sess ions ( l e f t ) , L o u i e G o h m e r t a n d John Carter; and there were freshman and junior members

-- including Represen-tatives Henry Cuellar, Bill Flores, Pete Olson, and Quico Canseco. The Congressional districts represented were diverse as well, from the three Congressmen representing areas of the Rio Grande Valley to several from the Dallas/Fort Worth metroplex. All Members had a genuine interest in Texas water issues, were well aware of the challenges facing federal support and investment in Texas water projects, and, importantly, wanted to hear from the Participants. We also were fortunate to have several agency heads participate in our first Speakers Series. The Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy reported on a “new planning paradigm with the Corps”, the timetable for the Principles & Requirements, the need to streamline the 404 permitting process, and how the mission will be continue to support Texas water needs; Commissioner Mike Connor, Bureau of Reclamation, informed us that additional reclamation support to Texas water projects will be available through various programs such as WaterSmart, the Rural Water Assistance Program, and continued conservation program grants. USGS Director Marcia McNutt, in addition to providing an overview of USGS activities, conveyed her support for the USGS stream monitoring programs in Texas and throughout the nation.

Questions Answered The Speakers Series was interactive. The priority water issues, presented below, were discussed, including the opportunity for federal support for Texas projects identified in the 2012 Water for Texas. The participants asked questions and discussed the issues with Congressional decision-

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makers, agency heads, and water Committee staff directors. And, as a result, these decision-makers got a better understanding of the Texas water situation and how they can help address the challenges. Each Texas Member acknowledged the federal budget challenges but also recognized the “sound investment” that will result from federal investment in Texas water projects. The issue of “earmarks” and the unintended consequences that ban imposes was an open topic for discussion. John Anderson, majority staff director for the Water Resources Subcommittee that oversees the Corps and environmental sections of the Clean Water Act, referred to the difference between “spending” and “investment.” Congressman Pete Sessions, vice-chair of the powerful Rules Committee, told the Texas group that they “deserve an answer (to how earmarks can be properly handled)…and I will have one in 30 days.” Participants also witnessed first-hand an exchange between Congressman Sessions and BG Thomas Kula, Southwest Division Commander, on the status of a Corps levee project, giving us a clear example of how Congress and federal agencies work positively together to address water issues.

Congressmen Gohmert and Flores (left) both serve on the Nat iona l Resources Committee that oversees the Endangered Species Act and federal law re la ted to invas i ve species. Both recognized the impacts on Texas water oper-ations and

future development; and both pledged to help through the Committee, including the potential to hear testimony before the Natural Resources Committee on possible relief from these issues. Congressman Pete Olson spoke to, and answered questions about, the National Flood Insurance Program; including the differences between the House and Senate versions of the reauthorization, and the impacts of “mandatory coverage area.”

Congressman Cuellar, a member of the Agriculture Committee, gave us advance information the upcoming Farm Bill and how water would be considered.

Texas Priority Water Issues Each year, the TWCA Federal Affairs Committee proposes the statewide, priority water issues that are then reviewed with and approved by the TWCA Board of Directors. This year, the Texas Water Day Steering Committee, in addition to overseeing Texas Water Day events, helped with the preparation of Briefing Paper and Issue White Papers that were distributed to our Texas Delegation, federal agencies, and key Committees. Texas Water Day participants were encouraged to visit their Member’s office to drop-off and to discuss the priority water issues. There were four priority issues: endangered and invasive species; federal support for 2012 Water for Texas

projects; levee certification and NFIP; and, the USGS Cooperative Monitoring Program.

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We encourage you to review the Briefing Paper that includes a summary of each issue and the “request” made, as well as the individual White Papers prepared for each issue. The can be found on the TWCA website at www.twca.org. Congressional Reception

The finale of Texas Water Day 2012 was the Congressional Reception. There was excellent attendance that included Members and Committee staff as well as Tom Donnelly with NWRA, David Reynolds with the Association of

TExAs WATEr DAy 2012

Tom Ray, ofLockwood, Andrews& Newnam, hasfollowed nationalwater issues for morethan 20 years. Hecan be reached atj-tray@lan-inc.com

California Water Agencies, and Amy Larsen with the National Waterways Conference. We were pleased to have the Corps well represented again this year. Let Mon Lee, Deputy ASA (Civil Works) for Policy and Legislation, attended. MG Michael Walsh ( r ight ) , Deputy Command ing Gene ra l for Civil and Emergency Operations, addressed the group. We encourage you to visit the TWCA website for pictures of this year’s Reception.

Kris Polly, former Deputy Assistant Secretary for Water & Science of the U.S. Department of the Interior and now with

Water Strategies LLP

Thursday, NoonNWRA -TWCA LUNCHEON

Featured Speaker...KRIS POLLY

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TCEQ Continues Development of Drought Rules as Priority Calls Endure

by Martin C. Rochelle and Cristina D. Ramage As drought conditions persist throughout much of the State, TCEQ has continued its priority calls for water rights in the Colorado River Basin, Little Sandy Creek Watershed in the Sabine River Basin, and for certain water rights in Neches River Basin. These remaining priority calls are part of a record-breaking number of calls issued over the past two years, some of which have been recently rescinded. The uncertainty surrounding this historic number of priority calls throughout the State, along with the Legislature’s mandate to create a more effective protocol for managing the State’s resources during times of drought or other shortage of water, has prompted increased awareness and discussion regarding water rights and curtailment. Against this backdrop, TCEQ continues to make progress in its efforts to develop and adopt rules relating to the suspension or adjustment of water rights during times of drought or other water shortage.

On November 4, 2011, TCEQ published for public comment in the Texas Register proposed new rules relating to the “Suspension or Adjustment of Water Rights During Water Shortage.” These proposed rules followed the passage of TCEQ’s Sunset Bill, HB 2694, by the 82nd Legislature last spring, which amended Chapter 11 of the Texas Water Code to provide for the TCEQ’s issuance of emergency orders concerning water rights. HB 2694 authorized the agency’s executive director to temporarily suspend or adjust the right of any water right holder to divert and use water during “a period of drought or other emergency shortage of water” and required the Commission to adopt rules to implement these new provisions. TCEQ’s November 4, 2011 publication of proposed Chapter 36 rules initiated a comment period that ran through December 5, 2011, allowing stakeholders and other interested persons the opportunity to comment, provide input, and seek clarification regarding the rules. As of the close of the comment period on December 5, TCEQ received over thirty comment letters from various stakeholders throughout the State, including the Texas Parks and Wildlife Department, the TCEQ Office of Public Interest Counsel, and various political subdivisions and private interests across the state, including a number of TWCA members. Generally, most commenters expressed support for TCEQ’s initiation of a protocol to manage the suspension or curtailment of water rights. However, many of the commenters stressed the need for additional clarification of the conditions for issuance of an order by the executive director, as well as the procedural due process, through public notice and opportunity for hearing, to be afforded to water right holders upon the issuance of such orders.

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Several commenters addressed the proposed definitions for “drought” and “emergency shortage of water” in the proposed rules, the need for clarification of same, and for suggested refinement of these definitions. One commenter noted that “the criteria proposed by TCEQ to define a drought as described in § 36.02(2) do not appear to be stringent enough to identify a drought that would warrant the triggering of emergency action.” Other commenters noted that the definitions of drought and emergency shortage of water are unclear and could result in confusion and uncertainty as TCEQ implements the rules. Many commenters also addressed the duration of the suspension or adjustment orders issued by TCEQ, as the proposed rules provide that such orders will be issued for a 180-day duration, “unless otherwise specified”, with what appears to be an unlimited number of additional 90-day extensions, as well. Several commenters opined that this lengthy and unlimited duration is simply too long and could result in burdensome restrictions being placed on junior water right holders for too long a period, and that the rules should be amended to accommodate a shorter duration for orders and subsequent extensions.

Other commenters noted the lack of specificity in the due process to be afforded by the proposed rules as it relates to the procedural protocol under which TCEQ will hold a hearing to determine whether to affirm, modify, or set aside a suspension or adjustment order. Currently, the proposed rules allow the executive director to issue a suspension or adjustment order without notice or opportunity for hearing, and they provide that “if an order is issued under this chapter without notice or a hearing, the order shall set a time and place for a hearing before the commission to affirm, modify, or set aside the order to be held as soon as practicable after the order

is issued.” Commenters urged the Commission to provide more specificity in the rules as to the precise procedural protocol and type of notice and hearing opportunity to be afforded water right holders upon issuance of such an order.

Another prevalent comment related to the conditions for issuance of a suspension or adjustment order as outlined in the proposed rules, noting that the rules do not clearly specify how the Commission will consider the implementation of water conservation and drought contingency plans, and other factors, as it decides whether to issue an order. While some commenters opined that the proposed rules do not appropriately honor the prior appropriation doctrine under Water Code

Sec. 11.027, other commenters urged the Commission to include additional

language in the rules so as to ensure greater deference to the water use “preferences” prescribed in Water Code Sec. 11.024. As currently drafted, the proposed rules

allow the executive director, “in accordance with the priority doctrine

in Texas Water Code § 11.027,” to temporarily suspend or adjust a water right

during drought or emergency shortage of water, and provide that the order, “to the greatest extent practicable, [should] conform to the order of preferences established by Texas Water Code § 11.024.” The reference in the proposed rules to Water Code Sec. 11.024, which is identical to the requirements of HB 2694, would suggest that diversions for municipal or domestic purposes, for example, could be allowed before diversions for other purposes of use, including industrial, mining, agricultural or recreational uses, during times of drought or other emergency shortage of water, and without regard to priority.

Some comments to the proposed rules emphasized the need for compensation to a senior water right holder when that water right holder’s rights are impaired by a junior water right holder’s continued diversions during a suspension or adjustment by the executive director made in

TCEQ Drought rulesContinued from page 9

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light of the Section 11.024 preferences in use. Such comments were made against the backdrop of the current priority calls, which have included provisions allowing for continued diversion of water for municipal uses and power generation but with the directive that municipal diverters should implement the higher stages of their drought contingency plans, and in some cases altogether restrict outdoor watering.

In addition to its acceptance of written comments, TCEQ also held a public hearing on the proposed rules on December 1, 2011, during which several stakeholders provided verbal comments to the proposed rules. TCEQ will consider both the verbal and written comments it has received as it moves forward to finalize these proposed rules, which are slated for action and possible adoption at the April 11, 2012 Commissioners’ Agenda. In the interim, priority calls in river basins throughout the State are expected to continue and perhaps increase in light of the upcoming summer months and the forecasted continuation of the current drought cycle. Martin C. Rochelle is the 2011-2012 TWCA Water Laws Committee Chair and a Principal with the Austin law firm of Lloyd

Special Guest Dinner SpeakerThursday, March 8th

Todd Staples, Texas Commissioner of Agriculture

Todd Staples grew up in Palestine,Texas. He attended Texas A&M University and graduated magna cum laude with a Bachelor of Science in Agricultural Economics. Staples served on the Palestine City Council from 1989 to 1991. In February 1995, he was elected to the Texas House of Representatives In 2000, Staples was elected to the Texas Senate. In the Senate, Staples served as chair of the Transportation & Homeland Security Committee, the Workers Compensation Select Interim Committee and the Texas Senate Republican Caucus. He served as vice-chair of the State Affairs Committee and the Veteran Affairs & Military Installations Committee. He has been Texas Agriculture Commissioner since 2006. Todd and his wife, Janet, have four children and three grandchildren.

Gosselink Rochelle & Townsend, P.C., where he chairs the firm’s Water Practice Group. Martin represents a broad array of clients across the state in the areas of water rights and supply, water quality, and water reuse, and he is actively engaged in the development of sound water policy at the Texas Capitol. Cristina D. Ramage is an Associate in Lloyd Gosselink’s Water Practice Group. Tina assists clients with water supply planning, permitting, and regulation in the areas of surface water and groundwater. If you would like additional information or have questions related to this article or other matters, please contact Martin at (512) 322-5810 or mrochelle@lglawfirm.com, or Tina at (512) 322-5887 or cramage@lglawfirm.com.

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By Joel Williams

Did 23 whooping cranes really die as a result of the Texas drought of 2008-09?

Not so, say expert witnesses in a federal lawsuit who have filed reports stating that there is no evidence of such a die-off, and that the flock of majestic endangered birds that winters in Texas is actually thriving. The Guadalupe-Blanco River Authority (GBRA) submitted the reports from several scientific experts in August in U.S. District Court in Corpus Christi, in response to a lawsuit filed last year by an organization called The Aransas Project (TAP). TAP alleges that Texas violated the federal Endangered Species Act (ESA) by not allowing enough fresh water to reach the San Antonio Bay ecosystem on the Texas Gulf Coast, where whooping cranes winter.

Endangered Species Act Claim TAP’s federal lawsuit alleges that the Texas Commission on Environmental Quality (TCEQ) violated the “taking” provision of Section 9 of the federal ESA. That provision prohibits a “take,” which is any activity that kills or harms a listed species, or that destroys its habitat. The TAP lawsuit contends that during the drought, a reduced amount of fresh water reaching the coastal marshes caused the salinity to rise so high that the wintering whooping cranes were unable to find sufficient food and water. The suit alleges that those conditions weakened the birds and led to the

deaths of 23 whooping cranes. Despite the headlines of articles that spread across the country, only two to four birds are known to have died in Texas that winter, a number consistent with normal winter losses. The trial began Monday Dec. 5, 2011, and ended Friday, Dec. 16. Judge Jack planned to take written closing arguments and indicated she would review case materials over the summer. It is not anticipated that she would issue a ruling before then. TAP seeks remedies that include extensive federal intervention in the way Texas manages its water resources. Kathy Robb, an attorney working on behalf of GBRA on the case, said the lawsuit underscores two emerging legal questions under the Endangered Species Act: What is required to establish “take” under Section

9 of ESA? and, Can state regulators acting under state law, be

the proximate cause of “take” under Section 9 of the ESA?

“The sweep of the complaint in The Aransas Project v. Shaw, et al, is outside the scope of permissible claims under ESA,” Robb wrote in an article published earlier this year in The Water Report.

Photo by Connie Rothe, GBRA

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examinations of animal carcasses to determine cause of death of whooping cranes at the National Lab. Over his career, he has testified as an expert on cause of death in 28 cases involving wildlife mortality of endangered species, mostly on behalf of the USFWS Division of Law Enforcement. Stroud’s report stated that: The analysis of the available physical evidence from 2008-09, which is two intact whooping crane carcasses and fragments of two additional carcasses, does not support TAP’s contention that the death or injury of any whooping crane in 2008-09 were caused by lack of adequate food or water. Whooping cranes have well-developed salt glands located above their eyes which rid their bodies of excess salt, making them capable of surviving in a salt marsh environment like many other marine adapted species. The most likely cause of death from the evidence is disease or predation or both. (One partial carcass was reported seen in the mouth of an alligator.) Trauma, such as shootings and collisions with structures, weather-related injuries, and exposure to toxins, infectious, bacterial, fungal, and viral disease, including from supplemental feeders providing corn, all are documented causes of crane mortality. Wildfire as the cause of death of animals and birds including the whooping cranes cannot be determined scientifically by merely observing, or in this case, not observing animals or from aerial survey counts.

GBRA’s StewardshipOne of the unfortunate outcomes resulting from the filing of this case, explained Todd Votteler, Ph.D., GBRA’s executive manager of Intergovern-mental Relations and Policy, is that TAP has workedvery hard to cast GBRA as ‘anti-environmentalists,’ when in reality, few other groups or agencies outside of the Fish and Wildlife Service and Texas Parks and Wildlife have done more to ensure the viability of the Aransas-Wood Buffalo whooping crane flock on their wintering grounds than GBRA and its affiliate organization, the Guadalupe-Blanco River Trust. It was GBRA that initiated a multi-year study by Texas A&M on the needs of the whooping

Continued on page 14

“The remedies sought, if granted, would upend Texas’s water regulatory scheme and profoundly affect the authority of states generally to issue water permits and regulate the use of their water.” “The lawsuit has no scientific basis,” said William “Bill” E. West, Jr., GBRA’s general manager. “TAP has it all wrong on alleged whooping crane deaths in 2008-09 -- all the information points to the fact that the flock is thriving,” he said. West also said that the effort to provoke a federal takeover of water management in Texas could have dire consequences in the region. Potential consequences include an end to new water permits, imposition of a whooping crane habitat conservation plan, reduced amounts of water diverted from rivers, new rules for timing diversions of existing water rights and possible impacts on management of groundwater from aquifers that contribute to the flow of the Guadalupe River.

Necropsy Evidence Of the known whooping crane deaths from that winter, the evidence includes two carcasses and fragments of two other birds, noted Dr. Richard Stroud, a veterinary pathologist with more than 40 years’ experience, who retired in 2009 after 19

years as the Veterinary Medical Examiner at the U.S. Fish and Wildlife Service’s (USFWS) National Wildlife Forensic Laboratory in Oregon. Stroud’s experience includes performing the first two of the 11 known necropsies—medical

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cranes that winter at San Antonio Bay. A summary of the findings of that important research can be viewed online at: http://www.gbra.org/documents/studies/sages/ExecutiveSummary.pdf. Votteler, who also is executive director emeritus of the GBR Trust, said, “Over the past several years, the GBR Trust, supported by GBRA, has acquired several parcels of land that have been

placed in conservation easements and ultimately may prove to be added habitat for this ever-growing natural flock,” adding, “GBRA, the GBR Trust, the Fish and Wildlife Service and other partners constructed a 2.25-mile-long water supply canal to a unit of the refuge that benefits migratory waterfowl as well as whooping cranes.” GBRA also created the San Antonio Bay Foundation, an organization whose mission is to foster and steward the natural resources of the San Antonio Bay estuarine system for optimal benefit of marine life, coastal wildlife and the people who use it for recreation and their livelihoods. And GBRA’s efforts have been continuous, Votteler said, “Most recently, GBRA, the GBR Trust, the San Antonio Bay Foundation and Ducks Unlimited have signed a Memorandum of Understanding to collaborate on wetland habitat conservation and enhancement with a special emphasis on Calhoun and Refugio counties, which includes all of San

Antonio Bay as well as the Guadalupe River Delta.”Aerial Survey Accuracy

The Aransas-Wood Buffalo whooping crane flock is making its nearly 2,500-mile trek from Wood Buffalo National Park in Alberta, Canada, to the Aransas National Wildlife Refuge in Texas. And again, the state is experiencing exceptional drought conditions. “Yet, signs indicate the flock is thriving,” West said, adding, “This is why the experts have begun to pay more attention to the official flock counts and the way in which those counts are conducted.” Another respected biologist, Michael Conroy, Ph.D., who served as a statistician and wildlife biologist at the Patuxent Wildlife Research Center established by the USFWS, recognized as one of the premier installations in the world in the area of quantitative ecology, reported that: Estimates of whooping crane mortality from a periodic aerial survey of mostly unmarked birds are not valid, due to uncertainties in data resulting from possible bird movement

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and failure to detect all birds at each survey. Individual surveys cannot reliably estimate abundance, due to variations in survey conditions, bird movements, and other factors that are not accounted for in the aerial surveys. Conroy later worked at the Cooperative Fish and Wildlife Research Unit at the University of Georgia in conjunction with the Department of the Interior, and is the author of three books and more than 135 scientific publications, including the standard reference books in the area of applied pop-ulation modeling, statistical estimation, and adaptive management in natural resource. He retired after 30 years of federal service in 2009 to become a senior research scientist at the Warnell School of Forestry and Natural Resources at the University of Georgia, and continues collaboration and consultation with the USFWS on statistically valid surveys of endangered species.

Adapting for Drought Renowned avian ecologist Douglas Slack, Ph.D., who has studied cranes for more than 40 years and is co-author of at least 70 journal and symposium articles in his field, indicated in his report: The whooping crane is an opportunist omnivore with a broad winter diet in the Aransas National Wildlife Refuge that includes a variety of foods like snails, insects, blue crabs, worms, clams, wolfberries, and acorns, adapting diet choices to the food available. The high water content of the cranes’ foods may provide all the water cranes need to meet their physiological needs, and it is not clear that cranes actually drink water at all. None of the expected signs of a flock in poor body condition due to winter food or water shortages, such as delayed winter migration, increased mortalities in the non-winter months and reduced reproductive success, occurred in the months following the 2008-09 winter. On the contrary, the flock had an early spring departure, record low reported mortality in the months following the winter, and near-record nesting levels in 2009. The flock successfully migrated the 2,500 miles to its summer location in Canada at the Wood-Buffalo National Park.

The flock has exhibited exponential growth over the last seven decades, from a low of 15 individuals in Texas in 1941 to record reported 283 this last winter of 2011. The population has grown more in the last decade than in any previous decade. It is larger than any time in the past century. It clearly was not set back, as claimed, during the winter of 2008-09. At least 19 of the 23 reported mortalities of 2008-09 were simply undetected during aerial surveys due to frequent bird movements. Slack retired in May as Regents Professor, Department of Wildlife and Fisheries at Texas A& M University, and has had leadership roles in The Wildlife Society and Audubon Texas, among many other awards and honors. “GBRA is delighted that the whooping crane population continues to thrive and that the July 2011 U.S. Whooping Crane Coordinator report upgraded the status of the cranes to “stable,” West said.

Economic Impacts Regarding the economic impact of freshwater inflow requirements sought by TAP, David

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Sunding, Ph.D., Thomas J. Graff, Professor in the College of Natural Resources at the University of California at Berkeley, and co-director of the Berkeley Water Center, explained in his report that:

Instream flow requirements of the sort proposed by TAP would have significant negative economic impacts for the Guadalupe and San Antonio River basin. The loss of water supply reliability resulting from the proposed instream flow requirements would cause more frequent water shortages and require construction of expensive water supply projects that otherwise would not be needed. Water shortages and extra water supply costs resulting from the proposed instream flow requirements would cost Texans an estimated $6.7 billion between 2010 and 2060. In the first three decades considered in the model (2010-2040), the largest losses occur in the electricity generating sector. Power generation would become less reliable as cooling water supplies become less reliable under the proposed flow requirements.

TWCA 68th Annual ConventionMarch 7-9, 2012

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Sunding has served on the National Research Council and on the U.S. EPA’s Science Advisory Board and has testified before the U.S. Congress and in litigation regarding the economics of natural resources and the environment. Brian Perkins, a water resource engineer with HDR Engineering in Austin, focusing on the Guadalupe and San Antonio River basins and other basins in Texas, also reported negative economic consequences of the lawsuit’s proposed remedies. His report indicated: Should a freshwater flow requirement be placed on the Guadalupe estuary that was senior to existing water rights, as requested by TAP, surface water supply for run-of-river rights (those with no storage associated with them) would essentially be zero during droughts. Such a proposed requirement would cut nearly in half the firm supply of water from Canyon Reservoir, the primary water supply reservoir in the river basin.

Power electric generators that use the three major power plant cooling lakes, including Lake Braunig, Calaveras Lake, and Coleto Creek Reservoir, would be forced to shut down regularly due to the inability to divert make-up water during extended droughts. In addition, future proposed water projects in the 2011 South Central Texas Regional Water Plan that depend on surface water from the Guadalupe-San Antonio River basin as the primary source of water would not be viable if such a proposed requirement were imposed. Perkins played a major role in creating the Flow Regime Application Tool in 2010, a daily simulation model used to apply complex environmental flow criteria to water supply projects to predict supply and downstream flows.

Reprinted with permission -- GBRA River Run Magazine

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