The simple title of a recent Austin American-Statesman letter-to-the-editor caught my eye: “Don’t cut off river basin.”  When I looked at who wrote the letter, I became even more interested: the county judges of all five counties through which the Colorado River meanders between Austin and the Gulf of Mexico were signatories.  Pretty impressive I thought. (Note: That letter is posted at the bottom of this page.)

The letter-to-the-editor had two purposes: the first was to alert the public about a recent Order issued by the Executive Director of the Texas Commission on Environmental Quality (TCEQ); and the second was to ask citizens to speak out against the Order by either writing TCEQ or attending the TCEQ meeting scheduled for February 12 where oral comments are allowed.

Send letters to:

Office of the Chief Clerk MC 105, TCEQ POB 13087 Austin, TX 78711-3087

Send e-mail to: chiefclk@tceq.texas.gov

Meeting time and location:

February 12 (Wednesday) 9:30 AM TCEQ Austin Office 12100 Park 35 Circle Room 201S, Bldg E.– Room 201S

The Executive Director’s Order was issued on January 27 and the TCEQ commissioners are scheduled to consider the Order at the February 12 meeting.  The complete Order can be read here.

The big item of the Order is to change the trigger point at which LCRA can cut off the release of water from Lakes Buchanan and Travis to the Lower Colorado River basin.  LCRA describes the order as an “emergency order to temporarily amend its 2010 WMP [Water Management Plan].”   LCRA states that two of the three criteria have been met to declare the current drought as a Drought Worse than the Drought of Record.

The paragraph of the emergency order which captures its objective is:

“Specifically, LCRA seeks an emergency order to amend its WMP to change requirements for the release of water to irrigation operations downstream in 2014 due to persistent drought conditions in the Highland Lakes.  LCRA requests the authority to provide no interruptible stored water to Gulf Coast, Lakeside Division, and Pierce Ranch if the combined storage of Lakes Travis and Buchanan is below 1.1 million acre feet (AF). Additionally, it requests the stored water releases be smaller for combined storage levels above 1.1 million AF than set forth in the 2010 Water Management Plan.”

In the 2010 Water Management Plan, the trigger to cut off the interruptible supply was when the combined storage of the two lakes reached 600,000 acre feet (AF).  In 2012 and 2013, TCEQ issued emergency orders to increase the trigger point to 850,000 acre feet.

In their request to TCEQ, LCRA stated, “Following the 2010 Water Management Plan with the ongoing drought and its effect on the water supply constitute an emergency that presents an imminent threat to the public health and safety.  There are no practicable alternatives to this action.”

In rebuttal to the recommended Order, the five county judges stated in their letter-to-the-editor:

“Depriving the Lower Colorado River basin of fresh water … will lead to the devastation of our state’s second largest bay and estuary system, sound a death knell for agriculture in the coastal plains and destroy the largest riverine ecosystem in our state…The environment, ecosystem and agriculture of our great state are worth saving, and we should all share in the sacrifices necessary to save these treasures.”

BACKGROUND INFORMATION

The above provides you the basics about what is happening.

While reading background information to write the above, I found some interesting facts which may also be of interest to you.   If you want to know a little more about the situation – read on.

First in time, first in right

Texas water law is based on the “first in time, first in right” doctrine – meaning if Joe has a water right obtained at an early date and the river is not flowing enough to supply water to everyone with a water right, TCEQ can order those with water rights granted after Joe’s to stop pumping water from the river.

This happened last year for the Brazos River.  The river’s flow was not enough to supply Dow Chemical (close to Houston) the water promised according to its water rights established in 1942 – TCEQ ordered Waco (which had water rights junior to Dow’s) to release water from their dams to meet that water right even when the lakes were at low levels.

In the Dow case, the Texas Farm Bureau fought an important legal battle to reaffirm the basic water doctrine of “first in time, first in right.”  It seems TCEQ had decided to exempt municipalities and power plants from the “first in time, first in right”’ doctrine.

The Farm Bureau objected to the exemptions and argued that TCEQ did not have the authority to override the “first in time, first in right” doctrine.  The courts agreed with the Farm Bureau – the decision is being appealed.

My question was:  Why aren’t the rice farmers and their water suppliers using their senior water rights to demand their water from the lakes?

One reason is that major irrigation companies have sold the companies and their water rights to LCRA.

For example, one of the major water suppliers to the rice farmers, Garwood Irrigation Company, did in fact have the oldest water right along the Colorado River to “divert and use 168,000 acre-feet of water per year from the Colorado River” – that is, until the company and its water rights were sold to LCRA for $75 million in 1998.

Now, LCRA operates the pumping companies supplying water to the irrigation canals in Matagorda, Wharton and Colorado counties.

I do not know who has water rights to the Colorado River which are more senior than LCRA’s – or if LCRA has special arrangements with water users.

What happened to the rice fields before Lakes Buchanan and Travis were built?

It makes sense to me that the Colorado River has always responded to climactic conditions.  So, before the lakes were constructed, there were times when the Colorado River ran dry due to a drought.

And, in fact, that is exactly what happened – rice farming was as erratic as the river flow.

Because of the erratic nature of the river, the rice farmers in the 1930s pressured the Legislature to create LCRA which would then build dams to ensure that water supply would be more reliable and available during droughts – and also control floods.  The six Highland Lakes, including Buchanan and Travis, were built during the 1930s and 1940s.

The inevitable population increases of Central Texas prompted LCRA to negotiate an arrangement in 1989 which guaranteed water to the towns and cities (“firm” customers), while deeming the farmers’ water supply as “interruptible.”  The downstream supply from the dams was never interrupted until 2012.

Even in 2011, the year of that devastating drought, LCRA released 452,000 acre feet of water downstream for the rice farmers – three times as much as Austin used that year.  That decision by LCRA has been one of the flashpoints in the current debate about what to do in the ongoing drought and the unprecedented cessation of irrigation water releases for the rice farmers.  As Kate Galbraith in an April 2012 Texas Monthly article said about the rice farmers: “A force in the formation of the LCRA, they had clearly lost their historical foothold.”

Other actions being considered to ensure environmental flows for the bays

In addition to the rice farming being dependent upon water releases from the lakes above Austin, Matagorda Bay has been dramatically affected by the decreased Colorado River flow.  As a consequence, the bay water is too salty for the once-prominent shellfish and other animals dependent upon the estuary.

At a recent meeting of Bay City which is located on Matagorda Bay, the attendees were shocked to hear an attorney state that half of the water used by Austin was used to water lawns in 2011.

At that same meeting, an environmental attorney from Houston said a federal lawsuit is a “tool of last use…but it may be all we have.”   The lawsuit’s basis would be the federal Endangered Species Conservation Act.  Matagorda Bay has an endangered species, the Kemp’s ridley sea turtle, which is protected by both the US and Mexican governments.

LCRA can ask another Colorado River authority for help

Way upstream, the Colorado River is controlled by the Colorado River Municipal Water District (CRMWD).  LCRA can request water to be released from the upstream dams if LCRA’s lakes fall too far.  That agreement won’t help the present situation, since CRMWD’s three lakes are hurting more than the LCRA lakes – they currently average 4% full.

Some of the most noteworthy quotes:

“Are we obligated to sacrifice one-hundred-plus years of rice production because the city of Austin wants to maintain its accelerated growth?”

“I want the burden to be shared equally. It’s maddening when you’re cut off but you see people watering the concrete.”

“But in general, more strict and explicit safeguards must be put in place to prevent Texas’ major cities from using their considerable political power to accumulate more than their fair share of water.”

“These water battles are the result of a system that’s utterly broken.”

“The LCRA is in a precarious and powerful position as both river steward and water marketer.  The same agency endowed with protecting the Colorado River, also funds itself by selling its water.”

 “We’re in danger of being a basin where there are big winners and big losers involved… We shouldn’t allow it to be all about winning and losing.”

Contributor = Curtis Chubb, Ph.D. – Milam County, Texas – 3 February 2014

Below is the letter to the editor from 5 County Judges — of Matagorda, Wharton, Colorado, Bastrop and Fayette Counties!