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© 2014
Texas Drought and Watermaster
Update
Molly Cagle
March 5, 2014
2014 LCRA Emergency Order
Look at the watershed above and the Highland Lakes
Key Points
 600,000 af storage is 2010 WMP cutoff
 100% curtailment for interruptible
 20% pro rata curtailment on firm...
Historical Trend
Inflows to Highland Lakes
Five of the
lowest inflow
years on
record
occurred within
the last six
years.
How did we get here?
LCRA applies for
Emergency Order
Commission
considers
ED's Order
ED issues
Emergency Order
Exceptions...
ED Emergency Order
 No interruptible releases now
 1.1 trigger on future releases
 Automatic renewal if below 1.1 M AF ...
How did we get here?
LCRA applies for
Emergency Order
Commission
considers
ED's Order
ED issues
Emergency Order
Exceptions...
Legal Issue
 Texas Water Code 11.139
 "Emergency conditions exist which present an
imminent threat to the public health ...
"Imminent threat to public health and safety"
 Intake structures already out of water-more soon
 Wells already dry
 Fir...
Reality
 Concern about hitting 600,000 af -DWDR
 Concern about indoor water use restrictions
 Comfort zone
 Precedent ...
Future With Irrigation Release
Future Without Irrigation Release
Results
ALJ Recommends
 No interruptible
releases now
 1.4 M AF trigger
 172,000 AF cap on
releases
 Automatic renewal...
BRAZOS RIVER WATERMASTER
Brazos River Overview
• 840 miles long
• 42,620 sq. mi
watershed
• 19 major
reservoirs
Planning Regions G, H, and O
October Snapshot 2000 - 2013
Texas Water Code § 11.027
As Between Appropriators,
First in Time,
First in Right
Senior Priority Calls
 2009
 2011
 2012
 2013
Texas Watermaster Programs
Tex. Water Code § 11.325 - Water Divisions
 The commission shall divide the state into water
divisions for the purpose of...
Sunset legislation, HB 2694 (2011)
 11.326(g) For a water basin in which a
watermaster is not appointed, the executive
di...
Executive Director October 2012 Brazos Basin
Recommendation
 34 water right holders commented
 23 opposed
 7 in favor
...
Tex. Water Code §11.451
 On petition of 25 or more holders of water rights in a
river basin or segment of a river basin o...
Tex. Water Code § 11.452
 (a) On receiving a petition for appointment of a watermaster or
on its own motion, the commissi...
Brazos River Watermaster Hearing
 Threat
 Need
 Appropriate Geographic Scope
January 2013
Petition Filed
April 2013
Pre...
Proponents Hearing Themes
 Prior appropriation is the law and it exists to deal
with shortages
 Recurring periods of sho...
Opponents Hearing Themes
 Priority Call implementation is sufficient
 Drought Tiger Teams
 Improvement from 40+ days to...
Jurisdictional challenge
 Particularly preyed upon by [supporters of the
watermaster] were the deceased, the cancer
ridde...
Proposal for Decision
 Threat - Clearly exists
 Need - Evidence was overwhelming
 Geographic scope - Entire Basin is ap...
Brazos Watermaster Outcome
 TCEQ Agenda
 Legislature
Texas drought and watermaster update   twca 2014
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Texas drought and watermaster update twca 2014

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Presented by Molly Cagle at the Texas Water Conservation Association Conference in The Woodlands, Texas - March 2014

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  • Both lakes Buchanan and Travis were last full on February 13, 2005 (PFD at pg 16; citing LCRA exhibit 5A at pg 9)
  • from LCRA exhibits at hearing (exhibit K)
  • Caps on releases:If storage is below 1.1 M AF, no releasesIf storage is at or above 1.1 M AF but below 1.2, release up to 100,000If storage is at or above 1.2 M AF but below 1.3, release up to 124,000If storage is at or above 1.3 M AF but below 1.4, release up to 148,000If storage is at or above 1.4 M AF, release up to 172,000.
  • FromCWIC exhibits, LCRA exhibits.
  • Focusing on the Brazos, let's get a some context. This map shows the full extent of the Brazos River basin in Texas.Watershed that stretches 1,050 milesover 800 miles down to the Gulf of MexicoComprises 44,620 square miles, 42,000 of which are in TexasBrazos crosses most of the physiographic regions of Texas - the High Plains, West Texas Rolling Plains, West Cross Timbers, Grand Prairie and Gulf Coastal PlainsThe Brazos is a complex system - 19 major reservoirs with collectively over 3.3 million acre-feet of conservation storage. There are several principle tributaries and also numerous subtributaries. Reservoirs are located both on the main stem and on tributaries.
  • The Brazos River spans three regional water planning groups. The Llano Estacado (Region O) up toward the panhandle - Lubbock is in Region O. Moving down Region G -Brazos G Area is about 31,600 square miles in area, or 12 percent of the State’s total area. About 90 percent of the region lies in the Brazos River Basin. Cities in the region with current populations greater than 50,000 are Abilene, Bryan, Cedar Park, College Station, Killeen, Round Rock, Temple, and Waco.Region H then extends down to the gulf of mexico. Region H includes the Three river basins (Brazos, San Jacinto Trinity) and four coastal basins (San Jacinto Brazos, San Jacinto-Trinity, Neches-Trinity, [Brazos-Colorado])Demands in the Brazos have of course increased over time and are projected to increase substantially over time. Region G covers 37 central Texas counties. About 90 percent of Region G lies in the Brazos River Basin. Cities in the region with currentpopulations greater than 50,000 are Abilene, Bryan, Cedar Park, College Station, Killeen, Round Rock, Temple, and Waco. The Brazos G Area is about 31,600 square miles in area, or 12 percent of the State’s total area. You can see here that water demand is expected to increase from the 2010 levels by about 200K acre-feet. Population is projected to rise substantially as well.Region H - The significant increase in demand - about an additional 200K acre-feet by 2060. SJ-Coastal (not shown) has a little less that 200Kacr-feet of additional demand by 2060. There is a corresponding trend in population. Brazos 250K in 2020 but over 600K by 2060 in the Brazos portion of Region H. SJ-Brazos coastal has 1.2m now and projected to be over 2m by 2060.Both basins also have projected increases in manufacturing demand as well (Brazos -240Kacr-ft in 2020 and 617K ac-ft by 2060. SJ-Brazos - 166Kacr-ft 2020 and 202Kacr-ft by 2060).Region O [NOT SHOWN]in contrast has relatively low population growth and actually projects a slight decrease in water demandsTotal water use in 2000 was estimated at 4,530,040 acft/yr. Projected total water demand for the region is 3,724,154 acft/yr in 2060. Projections of future water demands for municipal, industrial, steam-electric power, and livestock increase, while projections for irrigation and mining purposes decrease. The reasons for the decline in the projections of demand in future years for irrigation are predictions of increased efficiency in irrigation, economic factors adversely affecting the profitability of irrigation in future years, and expectation of decreased government programs supporting agricultural incomes, and supplies of water available for irrigation are projected to decrease. Projections for mining water demand decrease due to the expectation that secondary recovery of crude petroleum using water flooding will decrease in future years as this method is phased out or is no longer a viable technology for the industry in the Llano Estacado Region.
  • So you have overall growth in demand. Now let's look at pressure on the system -This a snapshot of the first week of October from 2000 to 2013 - so not a complete picture of the world but just some sense of drought conditions. 2011 obviously glaring and carries out into 2012 and 2013. But look at 2000 and 2005 and 2006 and remember the full arc of the Brazos so you see drought conditions in portions of the basin on a regular basis.
  • The first senior priority call was made by Dow Chemical Company on the Brazos River in 2009. Dow has multiple senior priority dates including some very senior and it is located down at Freeport - It is the first major water right above the mouth of the Brazos River. 1929 (20K ac-ft), 1942 (150K ac-ft)1960 (65K)2009 Call was new territory and it was implemented by the Executive Director's staff sending suspension letters - it took upwards of 40 days from when Dow made the call for it to be implemented. The call was issued at 1980and suspended NON-municipal diversions. It was only implemented below the BRA reservoirs. It lasted a little over a month.2011 - another call by Dow resulted in an iterative approach. In May 2011 the call was implemented by again suspending non-municipal diversions junior to 1980 in reaches below BRA reservoirs.In June 2011 the suspension was extended to 1960and in August it was extended geographically to all areas below Possum Kingdom reservoir (Possum Kingdom has a 1938 priority date). Again this was done by a letter to water rights holders from the ED and the ED cited to the TCEQ's statutory duty to protect senior water rights in accordance with Tex. water code 11.027.2012 -Rights junior to 1942 Suspended842 junior rights ( 755 for irrigation); 117, 227 af/yr authorized useRights Exempted from Suspension66 junior rights (municipal and power); 2,858, 238 af/yr authorized use [Kathy disputes this number and it may include some non-consumptive]Amendments to the 2012 Order -- Authorization of use during high flow periods; Requiring Conservation; Elimination of unnecessary exemptions (19 Rights not suspended; 1,829,781 af/yr authorized use)Texas Farm Bureau files suit2013 - GCWA makes a call but Dow trumps it with a call at 1942 which issued by the ED July 2, 2013. That call had built in authorization to divert during high flow periods so it remained in place despite some short periods of higher flow until _______.
  • Priority calls and litigation, that'sonflict… is conflict avoidable? Maybe not. But while one mechanism to deal with shortage and prior appropriation is priority calls, there is a different approach available -- a watermaster -- and some believe that approach can at least mitigate conflict and maximize beneficial use.This map shows the existing watermaster areas. Many of you may be familiar particularly with the South Texas Watermaster area. but there is also the ConchoRio grande has a watermaster but it also has some unique factors and so has its own set of rules.What is a watermaster? Ideally manager but also enforcer. One of the key characteristics of a wm program is that diverters file advanced declarations of intent. So you actually have a mechanism to know what people want to divert on a daily, advanced basis. So there is actually the data and a means to implement prior appropriation. but there is also a means to get to compromise that simply does not exist when the choice is make a priority call or don't. I've heard the South Texas watermaster describe his efforts to coordinate the timing of diversions in a way that maximizes beneficial use.
  • how do you create a watermaster program? There are a variety of paths.First, there is the water division method. The commission can do this at an agenda based on the "best protection to the holders of water rightsand the most economical supervision on the part of the state.The South Texas Water Division and the Colorado-lavaca division were both created under this authority.
  • how do you create a watermaster program? There are a variety of paths.First, there is the water division method. The commission can do this at an agenda based on the "best protection to the holders of water rightsand the most economical supervision on the part of the state.The South Texas Water Division and the Colorado-lavaca division were both created under this authority.
  • In doing the evaluation for the Brazos basin in 2012 there was a stakeholder process and there was a vocal opposition. It appears that because of the stakeholder process TCEQ deferred to the other mechanism to get a watermaster -- 11.451 and 11.452, which require an evidentiary hearing. And the statutory criteria for those provisions is threat -- which the commission thought would be best articulated by water right holders.
  • I've provided the statutory provisions for your reference -- you can see here that this authority can be by petition or by the commissions own motion (but with different criteria than the 11.325).
  • There is sometimes the word threat and sometimes the word need in this description of the procedures for the hearing process. These provisions have been construed by the Commission one time -- in the hearing that resulted in the Concho Watermaster program (and there was legislation layering on that after the commission created it).
  • For the brazos the referral to the state office of administrative hearings referred the issues of threat, need and appropriate geographic scope
  • Transcript of "Texas drought and watermaster update twca 2014"

    1. 1. © 2014 Texas Drought and Watermaster Update Molly Cagle March 5, 2014
    2. 2. 2014 LCRA Emergency Order
    3. 3. Look at the watershed above and the Highland Lakes
    4. 4. Key Points  600,000 af storage is 2010 WMP cutoff  100% curtailment for interruptible  20% pro rata curtailment on firm  Cutoff modified in '12 and '13 emergency orders  Should cutoff be modified in 2014?  If so, at what storage capacity should it be lifted?
    5. 5. Historical Trend
    6. 6. Inflows to Highland Lakes Five of the lowest inflow years on record occurred within the last six years.
    7. 7. How did we get here? LCRA applies for Emergency Order Commission considers ED's Order ED issues Emergency Order Exceptions Commission considers Emergency Order Dec. 10, 2013 Jan. 27, 2014 Feb. 12 Hearing on the merits Feb. 17 PFD Feb. 21 Feb. 24 Feb. 26
    8. 8. ED Emergency Order  No interruptible releases now  1.1 trigger on future releases  Automatic renewal if below 1.1 M AF on May 26  Cap on total releases depends upon storage If combined storage is… Interruptible releases up to… < 1.1 M zero ≥ 1.1 M but < 1.2 M 100,000 AF ≥ 1.2 M but < 1.3 M 124,000 AF ≥ 1.3 M but < 1.4 M 148,000 AF ≥ 1.4 M 172,000 AF
    9. 9. How did we get here? LCRA applies for Emergency Order Commission considers ED's Order ED issues Emergency Order Exceptions Commission issues Modified Emergency Order Dec. 10, 2013 Jan. 27, 2014 Feb. 12 Hearing on the merits Feb. 17 PFD Feb. 21 Feb. 24 Feb. 26
    10. 10. Legal Issue  Texas Water Code 11.139  "Emergency conditions exist which present an imminent threat to the public health and safety and which override the necessity to comply with established statutory procedures"  No feasible practicable alternatives to the emergency authorization.  Emergency Order has 120 day life; may be renewed once for not longer than 60 days.  Affirm, modify, or set aside the emergency authorization.
    11. 11. "Imminent threat to public health and safety"  Intake structures already out of water-more soon  Wells already dry  Firefighters unable to access lake water  Urban tree canopy  Concrete foundations  No alternatives
    12. 12. Reality  Concern about hitting 600,000 af -DWDR  Concern about indoor water use restrictions  Comfort zone  Precedent of cap  Precedent generally  Economics and public perception
    13. 13. Future With Irrigation Release
    14. 14. Future Without Irrigation Release
    15. 15. Results ALJ Recommends  No interruptible releases now  1.4 M AF trigger  172,000 AF cap on releases  Automatic renewal TCEQ Adopts  No interruptible releases now  No trigger level  No automatic renewal To be continued…
    16. 16. BRAZOS RIVER WATERMASTER
    17. 17. Brazos River Overview • 840 miles long • 42,620 sq. mi watershed • 19 major reservoirs
    18. 18. Planning Regions G, H, and O
    19. 19. October Snapshot 2000 - 2013
    20. 20. Texas Water Code § 11.027 As Between Appropriators, First in Time, First in Right
    21. 21. Senior Priority Calls  2009  2011  2012  2013
    22. 22. Texas Watermaster Programs
    23. 23. Tex. Water Code § 11.325 - Water Divisions  The commission shall divide the state into water divisions for the purpose of administering adjudicated water rights.  Water divisions may be created from time to time as the necessity arises.  The divisions shall be constituted to secure the best protection to the holders of water rights and the most economical supervision on the part of the state.
    24. 24. Sunset legislation, HB 2694 (2011)  11.326(g) For a water basin in which a watermaster is not appointed, the executive director shall:  (1) evaluate the water basin at least once every five years to determine whether a watermaster should be appointed; and  (2) report the findings and make recommendations to the commission.
    25. 25. Executive Director October 2012 Brazos Basin Recommendation  34 water right holders commented  23 opposed  7 in favor  4 neutral  ED recommendation: Threat to senior water rights would be best articulated by those water rights holders impacted  Invited petition per §11.451
    26. 26. Tex. Water Code §11.451  On petition of 25 or more holders of water rights in a river basin or segment of a river basin or on its own motion the commission may authorize the executive director to appoint a watermaster for a river basin or segment of a river basin if the commission finds that the rights of senior water rights holders in the basin or segment of the basin are threatened.
    27. 27. Tex. Water Code § 11.452  (a) On receiving a petition for appointment of a watermaster or on its own motion, the commission shall call and hold a hearing to determine if a need exists for appointment of a watermaster for the river basin or segment of the river basin.  (b) At the hearing persons who hold water rights in the river basin or segment of the river basin may appear before the commission and submit testimony and evidence relating to the need for appointment of a watermaster.  (c) After the hearing, the commission shall make a written determination as to whether a threat exists to the rights of senior water rights holders in the river basin or segment of the river basin and shall issue an order either finding that a threat exists and directing appointment of a watermaster or denying appointment of a watermaster.
    28. 28. Brazos River Watermaster Hearing  Threat  Need  Appropriate Geographic Scope January 2013 Petition Filed April 2013 Preliminary Hearing February 2013 Petition Considered at Agenda December 2013 Proposal for Decision Sept. 23-26, 2013 Live Hearing April or May ? Agenda
    29. 29. Proponents Hearing Themes  Prior appropriation is the law and it exists to deal with shortages  Recurring periods of shortage and increasing basin demands  Protection of vested property rights  Planning tools assume implementation of prior appropriation  Reactive management to calls or complaints does not negate existence of or sufficiently address threat  Whole basin is hydrologically connected  Watermaster is the tool provided by Legislature to enable data collection and proactive management
    30. 30. Opponents Hearing Themes  Priority Call implementation is sufficient  Drought Tiger Teams  Improvement from 40+ days to goal of less than 10 Days  Limited occurrence  Government intrusiveness  "Upper Basin" is distinct in climate and hydrology and Possum Kingdom is a sufficient divide  Other carve outs
    31. 31. Jurisdictional challenge  Particularly preyed upon by [supporters of the watermaster] were the deceased, the cancer ridden,the demented and elderly and their naïve sullen survivors.  Some Petitioners dropped out
    32. 32. Proposal for Decision  Threat - Clearly exists  Need - Evidence was overwhelming  Geographic scope - Entire Basin is appropriate
    33. 33. Brazos Watermaster Outcome  TCEQ Agenda  Legislature
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