Transcript www.tceq.state.tx.us

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-§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
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.
§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.

(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.

(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), §11.152
– 4. Water Quality-- §11.150
– 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 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 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 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 PlanProcess

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)
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
Inflow 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
1,033.1
171.1
TOTAL
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
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
138,000
97,000
14,400
0
TOTAL
Nueces
Overflow
Channel
Rincon
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
1169.3**
5
June
1191.4**
5
July
126.5*
5
August
265.7**
5
1027.3**
5
708.3**
5
November
68.3*
5
December
79.3*
5
*-Median, **-Mean
* Median For DoR
September
October
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
Quantity Historical
Scenario Acft/yr Frequency
Max H 5.2
66%
million
Min Q
4.2
70%
million
Min Q- 2.5
82%
Sal
million
Min
1.8
98%
Historic million
Target
Minimum
Frequency
50%
60%
75%
90%
Questions – Discussion