Environmental Flows Under Texas Senate Bill 3: Did We Leave Enough Water for the Fishes?

1. Environmental Flows Under Texas Senate Bill 3: Did We Leave Enough Water for the Fishes? Kirk Winemiller, Dept. of Wildlife and Fisheries Sciences, Texas A&M University

2. • Texas Senate Bill 1 (1997) established regional water planning groups.

3. • Senate Bill 2 (2001) mandated environmental flows research by natural resource agencies (TWDB, TPWD, TCEQ) – established the Texas Instream Flow Program

4. • Senate Bill 3 of the 80th Texas Legislature (2007) mandated formation of basin stakeholder groups and expert science teams to make environmental flow recommendations using best available information.

6. The focus is future water rights permitting. Most rights were issued prior to 1985 and have no environmental protection. Of the estimated 7500 rights, fewer than 15% include environmental restrictions. So ….. the burden falls to post-1985 rights to protect environmental flows.

7. For the past 40 years, the state has relied upon simple desktop approaches for evaluating flow needs of rivers, streams and bays (Lyons Method, 7Q2, etc.).

8. The goal is to conserve the timing, magnitude & durationof flow components that are essential features of the natural flow regime.

11. Texas SB 3 Process for Establishing Environmental Flows Lt. Governor- 3 E-flow Standards Speaker- 3 Governor- 3 TCEQ Environmental Flows Advisory Group 9 members Appoint Environmental Flows Science Advisory Committee 9 members Advise Basin and Bay Area Stakeholders Committee 17+ Members Appoint Basin and Bay Expert Science Team

12. Texas SB 3 Process for Establishing Environmental Flows Speaker- 3 Governor- 3 Lt. Governor- 3 TCEQ Environmental Flows Advisory Group 9 members Appoint Environmental Flows Science Advisory Committee 9 members E-flow Standards Basin and Bay Area Stakeholders Committee 17+ Members Advise Appoint Basin and Bay Expert Science Team

13. Basin and Bay Expert Science Teams • shall develop environmental flow analyses and a recommended environmental flow regime for the river basin and bay system through a collaborative process designed to achieve a consensus

14. Basin and Bay Expert Science Teams • shall develop environmental flow analyses and a recommended environmental flow regime for the river basin and bay system through a collaborative process designed to achieve a consensus • the science team must consider all reasonably available science, without regard to the need for the water for other uses

15. Science Team Biology Subcommittee Environmental Flows Recommendation Village Creek near Kountze, USGS gage 08041500 • Subsistence flows: 83 cfs Winter • 61 cfs Spring, Summer, Fall • Base flows: • Dry year: Winter 240 cfs, Spring 106 cfs, Summer 70 cfs, Fall 89 cfs • Average year: Winter 424 cfs, Spring 189 cfs, Summer 91 cfs, Fall 138 cfs • Wet year: Winter 672 cfs, Spring 335 cfs, Summer 135 cfs, Fall 236 cfs • High flow pulses*: • 2-per-season: Winter 2,010 cfs, Spring 1,380 cfs, Summer 341 cfs, Fall 712 cfs • 1-per-season: Winter 2,070 cfs, Spring 2,070 cfs, Summer 814 cfs, Fall 2,070 cfs • 1-per-2 years: 12,400 cfs • * high flow pulses have estimated volumes & durations; frequencies may not be attained every year.

17. SB3 Accomplishments for the Sabine & Neches Basins Flow Pulses for the Neches River at Evadale 5 4 3 Pulse/yr (acre feet x 105) 2 1 X 0 Science team TCEQ draft standard TCEQ final standard Stakeholder committee declined to propose Stakeholder committee late submission

18. SB3 Accomplishments for the Trinity & San Jacinto Basins Flow Pulses for the Trinity River near Romayor 5 4 3 Pulse/yr (acre feet x 105) 2 1 X X 0 Science team- regime group Science team- conditional group TCEQ final standard TCEQ draft standard Stakeholder committee (regime) Stakeholder committee (conditional)

19. SB3 Accomplishments for the Colorado & Lavaca Basins Flow Pulses for the Colorado River at Wharton 5 4 3 Pulse/yr (acre feet x 105) 2 1 0 Science team TCEQ draft standard TCEQ final standard Stakeholder committee

20. SB3 Accomplishments for the Guadalupe & San Antonio Basins Flow Pulses for the Guadalupe River at Victoria 5 4 3 Pulse/yr (acre feet x 105) 2 1 0 Science team & Stakeholder committee TCEQ draft standard TCEQ final standard

21. SB3 Accomplishments for the Brazos Basin Flow Pulses for the Brazos River at Richmond 1,019,000 617,000 5 4 3 Pulse/yr (acre feet x 105) 2 1 ? 0 Stakeholder Committee TCEQ standard Science team

22. SB3 Accomplishments for the Brazos Basin Flow Pulses for the Brazos River at Richmond 1,019,000 617,000 5 4 3 Pulse/yr (acre feet x 105) 2 pulse required to connect a young oxbow in the region 1 ? 0 Stakeholder Committee TCEQ standard Science team

23. Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees:

24. Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees: • Water project X has been planned for my region, so the standards need to be low enough to allow that to go forward.

25. Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees: • Water project X has been planned for my region, so the standards need to be low enough to allow that to go forward. • We can’t be sure these are the exact values that will satisfy environmental needs, but we know for sure we will need more water for municipal and industrial growth.

26. Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees: • Water project X has been planned for my region, so the standards need to be low enough to allow that to go forward. • We can’t be sure these are the exact values that will satisfy environmental needs, but we know for sure we will need more water for municipal and industrial growth. • It doesn’t matter if we set them too low, because, except during prolonged drought, it is impossible to divert all of the water from a river.

27. Arguments for setting environmental flow standards lower than those advised by science teams and stakeholder committees: • Water project X has been planned for my region, so the standards need to be low enough to allow that to go forward. • We can’t be sure these are the exact values that will satisfy environmental needs, but we know for sure we will need more water for municipal and industrial growth. • It doesn’t matter if we set them too low because, except during prolonged drought, it is impossible to divert all of the water from a river. • We don’t have to worry if we set standards too low right now, because we can adjust them later under the adaptive management plan.

28. SB3 definition of environmental flow regime: “A schedule of flow quantities that reflects seasonal and yearly fluctuations that typically would vary geographically, by specific location in a watershed, and that are shown to be adequate to support a sound ecological environment and to maintain the productivity, extent, and persistence of key aquatic habitats in and along the affected water bodies.”

29. Saltwater barrier on Lower Neches River Big Thicket Preserve Lower Cypress Tract MeadeWestvaco paper mill effluent receiving pond City of Beaumont

30. Conclusion: • SB3 seemed like a reasonable attempt at a stakeholder-driven, science-based process to produce improved standards for environmental protection during water rights permitting.

31. Conclusion: • But the process broke down at nearly every step as powerful economic/political interests leveraged their positions to ensure that environmental flow protections were set as low as possible, thus having more water available for future appropriations.

32. Conclusion: • Certain stakeholders invoked adaptive management as an insurance policy –– mistakes can be corrected as new information comes forth.

33. Conclusion: • However, the promise of adaptive management also can be used to justify bad decisions that can result in severe and long-lasting impacts.

34. Rio Grande at Big Bend National Park