This is from 2005.
NEWS - CCA Texas’ Position on SB-3
Thursday, May 26th, 2005
Remarks of Ben Vaughan on behalf of the Coastal Conservation Association/Texas at the Hearing on April 12, 2005 of the Senate Natural Resources Committee on Senate Bill 3I am speaking to you today on behalf of the Coastal Conservation Association Texas (CCA), which is one of the largest marine conservation groups in Texas with more than 48,000 state members and 46 local chapters from Brownsville to Orange. CCA Texas’ membership has been an instrumental part in most marine conservation debates in the past quarter century and is intensely interested in maintaining sufficient fresh water inflows into the bays and estuaries of Texas. CCA appreciates the Senate undertaking this daunting task and hopes that the financial wherewithal to implement many of its provisions will be made available. To quote from the editorial of April 10, 2005 in the Austin-American Statesman:
“Another provision in the bill would, for the first time, require the State to insure that enough water reaches the Gulf of Mexico coastline to protect downstream bays and estuaries. Such protection is especially needed for plants and animals on the coast that need fresh, not salt, water.”
CCA applauds this most desirable result and our following suggestions are made in that spirit with the hope that the Committee’s consideration of them for inclusion in Senate Bill 3 will assist in sustaining the marine environment. At the outset CCA recognizes and endorses the principle that provision for direct human needs is paramount. Nonetheless, CCA would be remiss in its obligations to its membership and particularly those located in the fully appropriated and over appropriated basins in south, Texas if we failed to comment to the Committee on several matters:
First, scientific research about quantity and timing of the requisite fresh water instream flows for both the riverine and the coastal environment and a fuller understanding of it is necessary to understanding the impact of our inflow decisions. This is particularly true where the basins involved are fully appropriated or over appropriated. We would submit that the even more important charge levied by Senate Bill 3 on the TCEQ is in Section 11.0236j(2) to the Water Code. Section 11.0236j(2) requires the Commission to specifically address “appropriate method by which reasonable amounts of existing water rights may be converted temporarily or permanently to use for environmental flow protection”. We would submit that bay, estuary and riverine protection is a task that can only be performed by the Commission and the stakeholder groups for the southern portion of the State, if some serious monies are dedicated from the freshwater consumer fees or other public funds to the purchase of existing water permits.
In CCA’s judgment, scientific research will be unable in the time allotted it to produce an algorithm for a flow regime that will be sufficiently trustworthy to ineluctably compel a specific inflow. Science cannot substitute for human judgment when it comes to formulating management goals. And human judgment must have something to judge/and in this instance it must be water. Water must be available for the State to allocate to the environment. How can this be done? Certainly it cannot be accomplished painlessly when the rivers have been fully permitted or perhaps even over appropriated and individuals have acquired property rights in them. CCA would suggest that in these areas like the Nueces or Rio Grande all the way up to the Guadalupe, which under presently filed applications will be fully appropriated, it will be most difficult to free up any water on the “consensus basis” anticipated by the legislation and the only way to develop a consensus is to provide funding for the purchase of rights sufficient to ensure some stream flow.
Thus the “strategies to meet the flow needs” and flow standards adopted by the Commission will inevitably depend on the ability of the State to provide sufficient funding to make it work. Please permit an analogy, if you would, to the situation of the tobacco farmers with allotments and land investments dedicated to a purpose which is now declared to be contrary to the public wellbeing. It is our understanding that there will be a buy-out of both the allotments and the lands and a retraining of the farmers to ameliorate their condition. Similarly, CCA asks that the State’s condition be improved and its ownership of its waters be increased by purchase in areas where history has forced upon the state an over commitment of its water. We see no way to acquire water permits of sufficient seniority to ensure instream flows in the desert and semi-arid portions of this state other than by purchase. Perhaps some of the bonded indebtedness suggested by Senate Joint Resolution 3 in support of a constitutional amendment could be specifically dedicated to this end. We doubt that private resources alone will be sufficient to purchase permits to achieve the desired level of flows.
While the Senate has labored mightily over the present legislation and the environmental flow set aside promulgated therein, CCA is concerned that in times of severe drought, even in basins with unappropriated waters, the permits presently pending before the TCEQ and the future environmental set asides provided in SB3 may be largely inoperative. They are so subordinate to older outstanding permits that it is unlikely that in drought conditions either they or the environmental flow set aside provided for in them will be achieved. This acknowledgment makes your and our work so much more difficult to be meaningful.
For the past three years, south Texas has been blessed with rains which have provided significant inflows in the Nueces and the Rio Grande Rivers. These rains have adverted the potential damage to the bays which inevitably lurks should there be a drought of record in conjunction with the current population levels. So again the CCA asks you to include in this legislation or companion legislation, sufficient funding to advert a calamity. You know far better than I the existing demands for funding in the State but we would suggest that the coastal environment on balance will justify your investment.
Second, something can be done in addition to environmental water purchases. CCA is sensitive to the competing interests which attend both the issuance of new permits and amendment of existing permits. CCA would suggest to the Committee, however, that the focus of the proposed amendments to Section 11.147 and Section 11.1471 which limits the inclusion of an environmental flow set aside in new and amended permits to those permits which “increase the amount of water authorized to be stored, taken, or diverted” will in fact do little to get the environmental set aside included in existing permits. Why would anyone seek by amendment to increase flows under an old permit and thereby submit such permit to the environmental flow set aside? They would apply for a new permit and limit the set aside’s applicability to it. Please consider providing in these sections that any amendment to a permit which would change the timing of the utilization of the water permitted or decrease the anticipated return flows therefrom should also include an environmental flow set aside provision. And, if the Legislature is unwilling to apply the set aside to the entire permitted volumes, then it should apply the set aside to those volumes permitted but unused for the five years next preceding the date of the application for the amendment.
Third, with respect to Section 11.4531, the Water Master Advisory Committee, CCA would suggest that there be included in the membership a representative of the environmental community and that either the requirement that such member be a holder of a water right or representative of a holder of a water right in the particular basin, be waived for the environmental representative or at the least that an individual or entity who had transferred a water right for environmental flows to the Texas Water Trust be considered as “holding” a water right for purposes of the qualification for membership on the Water Master Advisory Committee.
Since the Water Master is one of the officers entitled to enforce the terms of the outstanding permits, should these permits provide for environmental flows, a representative supporting such flows would appear to be appropriate.
Fourth, with respect to Section 15.7031, the Texas Water Trust Section, CCA would note that this section does not contain criteria for the approval or disapproval of the dedication of water rights to the Trust. Recognizing the cost to and the commitment of the parties contributing water to the trust or tendering it for contribution, CCA would submit that the test for acceptance should be whether or not the water would positively contribute to the support of riverine or bay and estuarine environments.
Fifth, with respect to Article 5 regarding the Edwards Aquifer authority, the CCA is concerned that the proposed amendments may dramatically reduce the yield of Edwards water and increase the proportion of San Antonio’s water needs that will have to be met by other water, likely coming from either the Colorado or the Guadalupe Basins. CCA’s recommendation is that legislation be enacted that would maintain the flexibility for the development of the Edwards. Principally, this would require the elimination of the limitation on the transfer of Edwards water rights to the City of San Antonio. The elimination of such cap would signal the legislative adoption of a true water market and allow San Antonio to focus on its cheapest and most abundant source of water and to avoid the extreme expense and unavoidable adverse environmental consequences of transferring the burden of its water needs to other basins. The latter result we feel would inevitably flow from the SB3’s proposed 300 cubic foot per second and 150 cubic foot per second minimum spring flows at Comal and San Marcos Springs, respectively. There are other methods to comply with the Endangered Species Act and to maintain the ecosystems fed by the Comal and San Marcos Springs. Administrative flexibility must be maintained in setting minimum spring flows. The exact flow level should not be mandated by SB3. It otherwise provides adequately for maintaining endangered species and their habitat.
While the State’s problem of ensuring adequate fresh water inflows is not of our individual making, the task of its credible resolution is ours.
This can be found here: http://www.ccatexas.org/cca-texas-position-on-sb-3/