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The Conundrum of Texas water rights: Who has ultimate claim to the state’s water resources?

The Conundrum of Texas water rights: Who has ultimate claim to the state’s water resources?
The recent ruling by the Lower Colorado River Authority on the amount of water rice farmers could receive from the Highland Lakes continues to be discussed. Rice farmers had the first claim on the LCRA water before the construction of the Highland Lake reservoir system. But the growth of cities and other industries in the area served by the LCRA has created much higher demand for the agency's supplies.  

The recent Lower Colorado River Authority resolution to release water to Gulf coast rice farmers next year appears to be a positive development in the ongoing fight over water rights in the Lower Colorado River Basin. But agricultural interests could once again suffer devastating water rationing limitations in 2013 if the water authority pushes for a way to satisfy all end users at a time when water supplies are short and water needs are growing.

The resolution, adopted by LCRA's Board of Directors during a Nov. 14 meeting in Fredericksburg, paves the way for the release of some rice irrigation water after the first of the year depending on lake levels at two reservoirs in Central Texas.  

In addition to farmers who claim LCRA is treading on traditional agricultural use of water in the basin, officials of Ducks Unlimited are suggesting that the recent resolution allocating less water for farm use greatly threatens migratory and native water fowl populations of the Texas coastal region and will result in devastating economic losses in sporting and wildlife revenues generated as a result of a declining birding industry.

In fairness to LCRA however, escalating population growth and rapid urban and industrial development is adding fuel to the argument of who has first rights to the natural resources of the state at a time when historical drought conditions threaten to make water scarcer in the years ahead. While farmers argue the water is needed to continue to provide adequate food supplies to meet market demands and to strengthen the state’s agricultural economy, sprawling cities like Austin and industrial users like mining operations and golf courses say they have a need and a right to the water as well.

In reality, who has first but not exclusive rights to the water was established by precedence long before the LCRA entered the scene. According to Texas water law, “first in time is first in right.” Downstream rice farmers were given the first water rights in the Colorado basin, and these rights are senior to LCRA's water rights for the Highland Lakes. These rights include some of the water that flows into the Highland Lakes. LCRA must pass through that water to comply with those rights.

Rice farmers first

Downstream rice farmers had been using the waters of the Colorado River for more than 40 years before the Highland Lakes were created. Rice farmers were among the strongest supporters of building the Highland Lakes dams in the 1930s because they recognized the value of the dams in easing flooding and making water available during droughts. Without the support of the rice farmers, LCRA and the Highland Lakes and dams might never have been built.

But that precedence doesn’t give all water rights to agricultural users. Times change and as a result the state’s priority and method of allocating and distributing water equitably needed to change as well. Ultimately the governing body that decides who gets the state’s natural resources and how much rests with the Texas Commission on Environmental Quality (TCEQ) , and in this case based upon the merits of recommendations from the LCRA.

While the river authority appears to make every attempt to meet the needs and requirements of each of its customers downstream, ultimately they are obligated to present a plan to TCEQ that at least has hope of surviving the state’s rigid requirement of parity and equity for all users, a largely undefined condition that puts the burden of determination on agencies like the LCRA without providing much detail.

But, as they say, the devil is in the details, and an exhaustive look at the resolution the LCRA board adopted on Nov. 14 this year reveals the depth of the problem of dividing up the state’s natural resources between qualified users who often believe their cause outweighs the needs of others.

Because of the prolonged drought, LCRA will for the second year in a row ask the state for permission to send less Highland Lakes water to downstream farmers than required by its state-approved Water Management Plan. The LCRA Board voted 10-4 to ask the state for the emergency drought relief for 2013 at its regular Board meeting on Nov. 14.

The vote came after dozens of people addressed the Board on the issue during two days of public comments during Board and committee meetings in Fredericksburg.

Drought toll

“We appreciate all people who took time out of their lives to come and speak to the Board in person,” said LCRA General Manager Becky Motal. “It highlights the toll the drought and the availability of water has on all of us. It is clear the Board needed to take steps to protect our firm customers such as cities and industry, while still balancing the need of others who depend on the lakes.”

LCRA now will ask the Texas Commission on Environmental Quality for permission to limit downstream farmers to 121,500 acre-feet of water from the Highland Lakes in 2013 if the combined storage of lakes Travis and Buchanan is between 775,000 and 920,000 acre-feet on Jan. 1 or March 1.

If combined storage is above 920,000 acre-feet on Jan. 1 or March 1, LCRA would follow the 2010 Water Management Plan, which would allocate about 180,000 to 185,000 acre-feet of Highland Lakes water available for downstream farmers. Water for second crop, if any, would be available if combined storage is at or above 850,000 acre-feet on June 1 or Aug. 1. The amount available would depend on how much water from the Highland Lakes was supplied for the first rice crop of the year.

Last year, because of the extreme drought, LCRA asked the state for and was granted emergency relief that cut off Highland Lakes water to most downstream farmers in 2012. Last year was the most severe single-year drought on record.

While LCRA officials say there has been more rain this year than last, there has not been enough for the lakes to fully rebound. There was hope earlier this year that an El Niño weather pattern would develop and bring wetter than normal weather in the fall and winter, but those conditions failed to develop and forecasts were revised.

Historically wet month

LCRA officials say October is historically the third wettest month of the year in Central Texas, but only about an inch of rain fell in most areas of the Lower Colorado River basin that month, and that is only about one-quarter of October’s average rainfall. Currently lakes Travis and Buchanan contain about 860,000 combined acre-feet of water, or about 43 percent full. The amount of water flowing into the lakes this year from its tributaries has been 35 percent of average. Last year inflows were the lowest on record at about 10 percent of average.

“This drought that has plagued our region continues,” said LCRA Board Chairman Timothy Timmerman. “Some of our inflows into the Highland Lakes have been lower than we saw during the worst drought this region has even seen, which is known as the Drought of Record. This plan isn’t perfect, but it’s the best we could come up with.”

The Board also noted that it could revisit the issue at a later date if conditions warrant. LCRA has now forwarded the request for emergency relief to the TCEQ for their consideration.

“We tend to discuss possible releases of water from the Highland Lakes in terms of acre-feet of storage and forecasts for future weather conditions, but it’s really all about lives and livelihoods,” Timmerman said. “We are keenly aware of that and always have that foremost in our minds as we decide how to best manage the water in the Highland Lakes under these conditions.”

The emergency relief LCRA is requesting is similar to a provision in LCRA’s proposed Water Management Plan for lakes Travis and Buchanan that is currently pending with TCEQ. That amended plan was approved by the Board after an 18-month process involving stakeholders in the basin, including municipal customers, lakes-area residents, environmental interests, business and agriculture.

But the future of all stakeholders, especially the agriculture sector, may depend on developing plans set into motion by LCRA. The Authority is planning several new water supply projects downstream that could create at least 100,000 acre-feet of water by 2017, which would provide some relief from the amount of water that would need to be released from the lakes for agricultural irrigation.

“This situation shows precisely why LCRA is aggressively moving forward with plans to build as many as three downstream reservoirs,” Motal said. “We need to find new water supplies, and building new reservoirs downstream will help us capture water that otherwise would flow into Matagorda Bay.”      

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