Transcript Second and Third Quarter 2005 Reports Janelle W. Okorie

Texas: A New Model for
Environmental Flow Protection
Robert R. Puente
Interim President/CEO
San Antonio Water System
FLOW 2008
Instream Flow Council
07 October 2008
Helping communities flourish
San Antonio Water System
The Importance of Environmental Flow Protection
 Protection of instream flows and freshwater inflows to bays and estuaries
is key to successful water management and planning.
 The population of Texas is expected to more than double between the
years 2000 and 2060, growing from about 21 million to about 46 million.
 The demand for water in Texas is expected to increase by 27 percent,
from almost 17 million acre-feet of water in 2000 to 21.6 million acre-feet
in 2060.
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Texas: A New Model for Environmental Protection
San Antonio Water System
 As we face increasing competition for limited water supplies, we must
ensure that adequate river flows are maintained to support fish and
wildlife, freshwater inflows to bays and estuaries, recreation and coastal
economies.
 Texas law expressly recognizes the importance of maintaining the
biological soundness of our state’s rivers, lakes, bays and estuaries.
 This recognition has evolved in recent decades through different
legislative directives.
 Recently, this evolution has produced a shift in our legal framework from
permit-by-permit consideration of environmental flow needs to the
development of flow regimes for each basin in the state.
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Texas: A New Model for Environmental Protection
San Antonio Water System
Environmental Flows and Permit Conditions
 In meeting human water needs through water use permits, the
Legislature requires certain environmental protections.
 Since 1985, Texas law has required the Texas Commission on
Environmental Quality (Commission) to assess the effects of water
use permits on:
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Freshwater inflow needs for bays and estuaries
Existing instream uses
Water quality
Fish and wildlife habitat
 The Commission uses special permit conditions to implement these
requirements.
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Texas: A New Model for Environmental Protection
San Antonio Water System
Legislation: SB 2
 In water rights permitting process, preference is for site-specific data to
determine if permit conditions are needed. In most cases, however, the
Commission relies on desk-top procedures to establish “default”
environmental flow targets.
 Senate Bill 2 (2001) established the Texas Instream Flow Program.
 Recognition that decisions about water management should take into
account the best site-specific science available.
 Comprehensive data collection and evaluation program jointly
administered by the Commission, the Texas Water Development Board
and the Texas Parks and Wildlife Department, similar to an earlier Bay
and Estuary Program.
 The program will determine flow conditions necessary to support a sound
ecological environment in Texas rivers and streams.
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Texas: A New Model for Environmental Protection
San Antonio Water System
SB 2 (cont.)
 National Academy of Sciences review and Technical Overview
completed.
 In study design phase to determine how studies will be conducted;
agency collaboration with workgroups of stakeholders and members of
the public; must complete priority basin studies by 2016.
 Study planning underway in Brazos, Sabine, and San Antonio river
basins.
 These studies will play an important role in providing accurate and longrange information not only for water rights permitting and the
development of environmental flow standards, but for regional and state
water planning and management.
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Texas: A New Model for Environmental Protection
San Antonio Water System
SB 3
 While SB 2 requires specific instream flow studies in certain basins,
SB 3 (2007) establishes a process whereby environmental flows are
protected through the adoption of basin-wide standards in each basin
in the state, rather than current permit-by-permit consideration of flow
needs.
 The environmental flow provisions of SB 3 represent a multi-session
effort by legislators, state and local agencies, and various
stakeholders to identify a more comprehensive approach to
environmental protection in the permitting process.
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Texas: A New Model for Environmental Protection
San Antonio Water System
SB 3: Impetus for Change
 In 2003, the Commission denied applications for instream flow permits by
the San Marcos River Foundation (SMRF) and other groups concerned
about growing consumptive needs in Texas rivers.
– The Commission found that it did not have express statutory authority to
consider permits specifically for instream flows, rather they were authorized
to place environmental conditions on consumptive water rights.
– Applicants appealed the Commission decision to state district court.
– Implications for both water development and environmental interests
generated much debate and brought the issue to the legislative forefront.
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Texas: A New Model for Environmental Protection
San Antonio Water System
 Permit-by-permit conditions provide piecemeal environmental protection;
more comprehensive approach needed.
 More participation by stakeholders in environmental flow program;
opportunity for local issues and solutions to be developed.
 Consensus that long-term science-based standards would bring certainty
to both water development and environmental interests.
 Pending legal action (SMRF application and others) combined with
upcoming permit applications for major water projects put pressure on
the Legislature.
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Texas: A New Model for Environmental Protection
San Antonio Water System
 SB 3 (2007) was the culmination of work by two study commissions.
– Study Commission on Water for Environmental Flows (2003-2004)
– Environmental Flows Advisory Committee (2005-2006).
 Study commissions’ reports based on a proposal developed by a
stakeholder group made up of water suppliers, environmental
interests, business organizations and other water permit holders.
 Study commission reports formed the basis of environmental flow
provisions enacted by the 80th Legislature in SB 3.
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Texas: A New Model for Environmental Protection
San Antonio Water System
Provisions of SB 3
 Comprehensive process that will set environmental flow standards for
every major river basin in the state.
 Environmental flows includes both instream flows and freshwater inflows
necessary to maintain health and productivity of river and bay systems.
 This new process is overseen by a statewide Environmental Flows
Advisory Group made up of legislators and state agency representatives
appointed by the Governor, Lieutenant Governor and Speaker of the
House of Representatives.
 The advisory group will conduct hearings and study policy implications of
balancing consumptive needs and environmental needs in water rights
permitting and enforcement and report progress to the Legislature every
two years.
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Texas: A New Model for Environmental Protection
San Antonio Water System
SB 3 (cont.)
 The advisory group has also appointed a statewide Texas Environmental
Flows Science Advisory Committee to serve as an objective scientific
body to assist the advisory group and coordinate with local science
teams.
 For the purpose of developing flow recommendations, the advisory group
has divided the state into geographical areas reflecting the various river
basin and bay systems.
 Each area will have a stakeholder team reflecting a diverse group of
interests in the basin as well as a separate science team made up of
experts with special knowledge of the particular basin.
 Each science team will recommend an environmental flow regime, or
schedule of flow quantities needed to ensure a sound ecological
environment, based on the best available existing science.
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Texas: A New Model for Environmental Protection
San Antonio Water System
SB 3 (cont.)
 The stakeholder group will then consider the science team
recommendations, taking into account other water management
considerations and develop their own separate set of recommendations.
 After receipt of both science-only and science and policy combined
recommendations, along with input from the state advisory group, the
Commission will adopt environmental flow standards through a public
rulemaking process.
 In adopting flow standards, the Commission will also determine the
amount of unappropriated water, if any, to be set aside for those
standards.
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Texas: A New Model for Environmental Protection
San Antonio Water System
SB 3 (cont.)
 The process will occur in a priority order set up in the legislation and a
time-frame has been established for each step of the process. For a
system not included in the priority order, the advisory group will establish
a schedule.
 Once the process is completed, the Commission must apply the
environmental flow standard, including any set-asides, for the purpose of
determining environmental flow conditions in the permitting process.
 Limited re-opener provision allows environmental flow permit conditions
to be adjusted if needed to comply with later-adopted environmental flow
standards. The re-opener only applies to permits issued beginning
September 1, 2007 and is limited to a maximum increase in pass-through
or release requirement of 12.5%.
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Texas: A New Model for Environmental Protection
San Antonio Water System
SB 3 (cont.)
 Upon completion of their work, each stakeholder group, with the
assistance of their science team, must prepare a work plan that is
approved by the statewide advisory group.
 The plan will address adaptive management issues, including periodic
review of environmental flow standards to occur at least once every 10
years.
 Work plans will identify uncertainties that can be addressed in future
studies, including those mandated by the SB 2 Instream Flow Program.
 The Commission must take stakeholder work plans into consideration in
altering an environmental flow standard or set-aside through future
rulemaking.
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Texas: A New Model for Environmental Protection
San Antonio Water System
Limitations of SB 3
 While SB 3 does establish a new method of establishing environmental
flow regimes, it does not guarantee adequate water will be available to
meet those regimes.
 In adopting flow standards, the Commission will establish a set-aside
below which water cannot be permitted.
 In some river systems, however, unappropriated water is not sufficient to
meet environmental flow standards, meaning permits have been granted
taking most of the water, especially during dry periods.
 In these basins, SB 3 calls for the exploration of market approaches, both
public and private, to fill the gap, including the donation or voluntary
purchase of existing rights.
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Texas: A New Model for Environmental Protection
San Antonio Water System
Water Trust
 SB 1 (1997), an omnibus water planning bill, created the Texas Water
Trust to hold water rights dedicated to environmental needs, including
instream flows, water quality, fish and wildlife habitat, or bay and estuary
inflows.
– Water rights amended to include instream use (expressly recognized in SB
3)
– Water rights may be held for a term or in perpetuity
– Mechanism for converting water rights for environmental purposes through
voluntary participation by water right holders.
 There are currently three water rights in the Water Trust – two in the Rio
Grande Basin and one in the Guadalupe Basin.
 To further use of the trust, funding for water right purchases and
exploration of economic incentives are needed.
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Texas: A New Model for Environmental Protection
San Antonio Water System
SB 3: A Model Collaborative Process
 SB 3 is precedent setting legislation, representing one of the most
comprehensive processes for environmental flow protection in the nation.
 Passage of the environmental flow provisions in SB 3 represent a
monumental effort by state environmental agencies, legislators,
environmental organizations, water suppliers and industry groups.
 The effort was successful because of several key factors.
– Legislative recognition of the importance of a sound ecological environment
for our rivers
– The involvement of diverse stakeholders committed to resolution
– A willingness to compromise, e.g. continuation of permitting with re-opener
clause until applicable flow standards adopted.
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Texas: A New Model for Environmental Protection
San Antonio Water System
Collaborative Process (cont.)
– While the process established by SB 3 may seem
complicated, effective participation is key to stakeholder
buy-in. The legislation recognizes that each region has
unique characteristics and needs and provides a
mechanism for local communities to be directly engaged
in the decision-making process.
– Upon full implementation, this new law will present a
model for water resource management that balances
consumptive and environmental needs.
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Texas: A New Model for Environmental Protection
San Antonio Water System
Websites

For information on the SB 2 Texas Instream Flows Program, see
http://www.twdb.state.tx.us/InstreamFlows/index.html

For information on the Environmental Flows Advisory Group, see
http://www.tceq.state.tx.us/permitting/water_supply/water_rights/eflows/group.html
07 October 2008
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Texas: A New Model for Environmental Protection
San Antonio Water System
Texas: A New Model for
Environmental Flow Protection
Robert R. Puente
Interim President/CEO
San Antonio Water System
FLOW 2008
Instream Flow Council
07 October 2008
Helping communities flourish
San Antonio Water System