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Agency Activities: Water Availability (FY2015-2016)

The following summarizes the agency’s activities regarding drought, water rights, groundwater management, evaluations of river basins without a watermaster, the Brazos watermaster, and Texas interstate river compacts. (Part of Chapter 2—Biennial Report to the 85th Legislature, FY2015-FY2016)

Water Availability

Responding to Drought

In recent years, Texas has experienced historic droughts. The drought of 2011 broke records, with 97 percent of the state in extreme or exceptional drought. By mid-2014, almost 45 percent of the state remained in severe, extreme, or exceptional drought. In comparison, by mid-2016, less than 2 percent of the state experienced abnormally dry conditions.

Agency Response and Assistance

The TCEQ has engaged in proactive steps to respond to extreme drought. It communicates information about drought conditions and permit suspensions to state leaders, legislative officials, county judges, county extension agents, holders of water-right permits, and the media.

This response is coordinated through the TCEQ’s Drought Team, a multidisciplinary agency group that began meeting in 2010. The team issues updates on the status of drought conditions and agency responses. Agencies invited to team meetings are partners such as the Texas Department of Emergency Management, Texas Department of Agriculture, and Texas Water Development Board.

In addition, the multi-disciplinary Emergency Drinking Water Task Force was formed by the Texas Division of Emergency Management and facilitated by the TCEQ to respond to drought emergencies at public water systems. Once the TCEQ was notified or became aware that a water system was within 180 days of running out of water, the task force informed the appropriate local and state officials, as well as the local TDEM district coordinator, who in turn notified the county emergency management coordinator, mayor, county judge, and appropriate state legislators. The task force met weekly at the height of the drought, and now—in 2016—meets biweekly, to discuss the systems being tracked and opportunities for outreach and assistance.

The agency continues to monitor a targeted list of public water systems that have a limited or an unknown supply of water remaining. Employees offer those systems financial, managerial, and technical assistance, such as identifying alternative water sources, coordinating emergency drinking-water planning, and finding possible funding for alternative sources of water. The TCEQ also engages in outreach and assistance—specifically targeting public water systems—to help prevent systems from running out of water. The agency contacts public water suppliers to urge implementation of drought contingency plans. TCEQ staff offer assistance to any public water system continuing to experience critical conditions.

From 2011 to the present, the TCEQ has provided technical assistance to more than 100 public water systems by expediting approximately 360 requests for reviews of plans and specifications for drilling additional wells, moving surface water intakes to deeper waters, and finding interconnections with adjacent water systems, without compromising drinking-water quality and capacity of other systems.

In fiscal 2016, 680 public water systems in Texas had activated mandatory water restrictions, while another 415 relied on voluntary measures to cut back on water use. For the complete list, see <www.tceq.texas.gov/goto/pws-restrictions>.

Exploring New Supplies through Alternative Treatment

With Texas’ population expected to reach almost 46 million by the year 2060, Texans have had to plan far in advance to sustain their water needs. Because of these challenges, public water systems have begun to use less-conventional sources of water and the TCEQ began reviewing a number of innovative water-supply projects, some of which had not previously been considered. The TCEQ has engineers and scientists with the expertise to guide public water systems through selecting innovative treatment technologies and receiving approval for those technologies while ensuring that the treated water is safe for human consumption.

One alternative involves not only reclaiming effluent from municipal wastewater-treatment plants for non-potable uses such as irrigation and industry, but also adding additional treatment to remove chemical and microbiological contami nants to prepare the effluent for direct potable reuse.

Another alternative for some communities is to treat saline or brackish groundwater. For this reason, the agency initiated rulemaking to streamline construction approval for public water systems asking to conduct brackish-water desalination. In July 2015, after extensive input from the regulated community and interested stakeholders, the rules for desalination using either reverse-osmosis or nanofiltration membranes became effective. In the past, the use of reverse-osmosis membranes or other desalination techniques required either a site-specific pilot study, a pilot study at a site with similar water quality, or full-scale performance data from a site with similar water quality. The streamlined approach in the new rules allows the use of desalination technologies without an exception request. To further assist communities with decreased water supplies, the TCEQ offers concurrent reviews of designs and models.

In addition, marine desalination has been gaining attention as some communities seek to treat saline water to make it potable. In response, the 84th Texas Legislature passed House Bills 2031 and 4097 in 2015 to expedite permitting related to desalination of both marine seawater from the Gulf of Mexico and seawater from a bay or arm of the gulf. In 2016, the agency initiated a rulemaking to expedite permitting and related processes for such diversion of seawater and the discharge of both treated seawater and waste resulting from desalination, and to address industrial seawater desalination.

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Water Rights

Water flowing in Texas creeks, rivers, lakes, and bays is state water. The right to use water may be acquired through appropriation via permitting as established in state law. The TCEQ reviews permit applications for new water for administrative and technical requirements related to conservation, water availability, and the environment. In fiscal 2015 and 2016, the agency processed 1,722 water-rights actions, including new permits and amendments, water-supply contracts, and transfers of ownership.

Because of limited water availability, some cities, governments, businesses, and individuals have begun turning to indirect reuse or groundwater as a source of supply. With indirect reuse or groundwater, an authority or individual may discharge effluent or groundwater into a stream, subsequently divert the effluent or groundwater, and use (or reuse) it for irrigation or some other purpose. These types of projects require a bed-and-banks authorization. A total of seven indirect reuse authorizations and amendments and nine bed and banks applications for groundwater conveyance were processed in fiscal years 2015 and 2016.

Since July 2015, the TCEQ has been conducting a critical review of water rights permitting and change of ownership processes that has resulted in changes that include allocating additional personnel authorized by the 84th Texas Legislature for the water-rights permitting program, strongly encouraging pre-application meetings to assist applicants in developing more complete applications, removing redundant internal processes, limiting time extensions granted to applicants to respond to requests for information, and implementing return policies when an applicant is unresponsive. The TCEQ continues to search for more improvements that will expedite permitting without neglecting any statutory responsibilities. The TCEQ is currently working to improve application forms and the instructional material available on its website. In addition, the TCEQ has engaged in outreach efforts to help water right-holders remain in compliance with statutory requirements for reporting water use. Whenever possible, the TCEQ has also reached out to water-rights stakeholders and has increased its presence and availability at water conferences and other events.

Texas Instream Flow Program

The Texas Instream Flow Program, established in 2001, is a collaboration between the TCEQ, the Texas Water Development Board, and the Texas Parks and Wildlife Department. The purpose of the program is to collect and evaluate instream-flow data and to conduct studies to determine instream-flow conditions necessary to support a sound ecological environment.

Instream-flow studies are ongoing in the lower San Antonio, middle and lower Brazos, middle Trinity, and lower Guadalupe river basins. Final recommendations of instream-flow studies of the lower San Antonio and middle and lower Brazos river basins are to be completed by the end of 2016. Data collection efforts are ongoing for the middle Trinity and lower Guadalupe river basins.

Evaluations of River Basins without a Watermaster

Under the Texas Water Code, the TCEQ is required every five years to evaluate river basins that do not have a watermaster program to determine whether a watermaster should be appointed. Agency personnel are directed to report their findings and make recommendations to the commission.

In 2011, the TCEQ developed a schedule for conducting these evaluations, as well as criteria for developing recommendations. The first year of evaluation, conducted in 2012, included the Brazos and Colorado river basins, along with the Brazos-Colorado and Colorado-Lavaca coastal basins. In 2013 the Trinity and San Jacinto river basins were evaluated; in 2014, the Sabine and Neches river basins.

In 2015, evaluations were conducted for the Red and Canadian river basins. For 2016 the fifth evaluation year, the TCEQ evaluated the Cypress Creek and Sulphur River basins. Through this process, the TCEQ received input from stakeholders on whether a new watermaster area was needed. One new area was identified through the petition process for the Brazos River Basin.

For more information, see Appendix D, “Evaluation of Water Basins in Texas without a Watermaster.”

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Brazos Watermaster

In April 2014, the TCEQ directed that a watermaster be appointed for a portion of the Brazos River Basin, which includes Possum Kingdom Lake and below. This directive was in response to a petition by 35 water-right holders in the basin.

The Brazos watermaster area contains over 900 water rights that authorize over 3 million acre-feet of water and 26 major reservoirs. Water is diverted in the Brazos watermaster area for many purposes, including municipal, industrial, agricultural, and mining use. Since June 2015, the staff has communicated with 79 percent (738) of the water-rights holders, representing approximately 98 percent of the authorized diversions within the watermaster’s jurisdiction. Personnel continue to look for methods of reaching the remaining water-rights holders, but challenges include a lack of contact information and current addresses.

Texas Interstate River Compacts

Texas is a party to five interstate river compacts. These compacts apportion the waters of the Canadian, Pecos, Red, and Sabine rivers and the Rio Grande between the appropriate states. Interstate compacts form a legal foundation for the equitable division of the water of an interstate stream with the intent of settling each state’s claim to the water.

Rio Grande Compact

The Rio Grande Compact, ratified in 1939, divided the waters of the Rio Grande among the signatory states of Colorado, New Mexico, and Texas from its source in Colorado to Fort Quitman, Texas. The compact did not contain specific wording regarding the apportionment of water in and below Elephant Butte Reservoir. However, the compact was drafted and signed against the backdrop of the 1915 Rio Grande Project and a 1938 U.S. Bureau of Reclamation contract that referred to a division of 57 percent to New Mexico and 43 percent to Texas. The compact contains references and terms to ensure sufficient water to the Rio Grande Project.

Rio Grande Watershed map

The project serves the Las Cruces and El Paso areas and includes Elephant Butte Reservoir, along with canals and diversion works in New Mexico and Texas. The project water was to be allocated by the 57:43 percent division, based on the relative amounts of project acreage originally identified in each state. Two districts receive project water: the Elephant Butte Irrigation District in New Mexico and El Paso County Water Improvement District No. 1 in Texas. The latter supplies the city of El Paso with about half of its water.

In 2008, after 20 years of negotiations, the two districts and the Bureau of Reclamation completed an operating agreement for the Rio Grande Project. The agreement acknowledged the 57:43 percent division of water and established a means of accounting for the allocation. The agreement was a compromise to resolve major issues regarding the impact of large amounts of groundwater development and pumping in New Mexico that affected water deliveries to Texas.

But significant compliance issues continue regarding New Mexico’s water use associated with the Rio Grande Compact. In 2011, New Mexico took action in federal district court to invalidate the 2008 operating agreement. In response to the lawsuit and in coordination with the Legislative Budget Board and the Attorney General’s Office, the Rio Grande Compact hired outside counsel and technical experts with specialized experience in interstate water litigation to protect Texas’ share of water.

In January 2013, Texas filed litigation with the U.S. Supreme Court. A year later, the Supreme Court granted Texas’ motion and accepted the case. Subsequently, on March 31, 2014, the Supreme Court granted the United States’ motion for intervention.

As Texas develops factual information to support its position, evidence grows that New Mexico’s actions have significantly affected, and will continue to affect, water deliveries to Texas. On Nov. 3, 2014, the Supreme Court appointed a special master in this case with authority to fix the time and conditions for the filings of additional pleadings, to direct subsequent proceedings, to summon witnesses, to issue subpoenas, and to take such evidence as may be introduced. The special master was also directed to submit reports to the Supreme Court as he may deem appropriate.

A “special master” is appointed by the Supreme Court to carry out actions on its behalf such as the taking of evidence and making rulings. The Supreme Court can then assess the special master’s ruling much as a normal appeals court would, rather than conduct the trial itself. This is necessary as trials in the U.S. almost always involve live testimony and it would be too unwieldy for nine justices to rule on evidentiary objections in real time.

On Dec. 3, 2014, Elephant Butte Irrigation District filed a motion to intervene as a party to these proceedings, and on April 22, 2015, El Paso County Water Improvement District No. 1 filed a motion to intervene.

New Mexico also moved to dismiss Texas’ complaint against New Mexico, as well as to dismiss the United States’ complaint in intervention.

The special master issued his draft First Report on June 28, 2016, and recommended that

  • the court deny New Mexico’s motion to dismiss Texas’ complaint,
  • the court partially grant New Mexico’s motion to dismiss the United States’ complaint in intervention, and
  • the court deny EBID’s and EPCWID’s motions to intervene.

The special master then invited corrections of facts or misstatements of law in his draft First Report. These corrections were to be submitted to him by Aug. 1, 2016, after which he would decide whether or not to change anything in the report before forwarding a final First Report to the Supreme Court.

As of Aug. 31, 2016, the special master had not forwarded his final First Report to the Supreme Court.

When the Supreme Court receives the final First Report, they will ask for a period of time where the parties can file exceptions, which are appeals to the report. The report then continues through the Court’s procedural process where they can choose to affirm the report as is and ignore the exceptions or ask the parties to come and argue their exceptions. In the interim, the Special Master is proceeding forward with the case and planning for the parties to go to trial.

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International Treaties

Two international treaties have a major impact on water supplies available to Texas. The 1906 convention between the United States and Mexico apportions the waters of the Rio Grande Basin above Fort Quitman, Texas, while the 1944 treaty between the United States and Mexico apportions the waters of the basin below Fort Quitman.

Mexico continues to under-deliver water to the United States under the 1944 Treaty. Mexico does not treat the United States as a water user and only relies on significant rainfalls to make deliveries of water to north of the border. This stands in contrast to the manner in which the United States treats Mexico in regards to the Colorado River. In fact, the United States has always supplied Mexico its annual allocation from the Colorado River. The Colorado River and the Rio Grande are both covered by the same 1944 water treaty. Efforts continue through the Texas congressional delegation to address this problem.

A related issue concerns the accounting of waters in the Rio Grande at Fort Quitman. While the 1906 convention clearly granted 100 percent of all waters below El Paso to Fort Quitman to the United States, the International Boundary and Water Commission has allocated the waters equally between the United States and Mexico.

Groundwater

The TCEQ is responsible for delineating and designating priority groundwater management areas and creating groundwater-conservation districts in response to landowner petitions or through creating PGMAs.

In 2017, the TCEQ and the Texas Water Development Board will submit a joint legislative report that details activities in fiscal 2015–16 relating to PMGAs and the creation and operation of groundwater-conservation districts.

Groundwater conservation districts, each governed by a locally selected board of directors, are the state’s preferred method of groundwater management. Under the Texas Water Code, GCDs are authorized and required to issue permits for water wells, develop a management plan, and adopt rules to implement the plan. The plan and the “desired future conditions” for a groundwater management area must be readopted and approved at least once every five years. The TCEQ actively monitors and ensures GCD compliance to meet requirements for adoption and re-adoption of management plans.

The TCEQ also has responsibility for supporting the activities of the interagency Texas Groundwater Protection Committee. Texas Water Code Sections 26.401–26.408, enacted by the 71st Texas Legislature (1989), established non-degradation of the state’s groundwater resources as the goal for all state programs. The same legislation created the TGPC to bridge gaps between existing state groundwater programs and to optimize groundwater quality protection by improving coordination among agencies involved in groundwater activities.

Among the TGPC’s mandated activities are:

  • developing and updating a comprehensive groundwater protection strategy for the state
  • publishing an annual report on groundwater monitoring activities and cases of documented groundwater contamination associated with activities regulated by state agencies
  • preparing and publishing a biennial report to the legislature describing these activities, identifying gaps in programs, and recommending actions to address those gaps
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