COASTAL UPDATE 2004

THE BATTLE FOR THE TEXAS COAST

By Jim Blackburn

August, 2004

(Although I take full responsibility for the information in this newsletter, I would like to acknowledge the analyses obtained from Myron Hess and Norman Johns with the National Wildlife Federation that underlie some of the observations in this Coastal Update.)

At the current time, there is a somewhat obscure but very important battle occurring that will determine the future of the Texas coast. Like no other time in the history of the Texas coast, freshwater inflows to our coastal bays and estuaries are in jeopardy. The threat comes on multiple fronts. First, growth in demand is causing many old water permits that have never been used and that were issued without environmental protection provisions to be bought and sold like commodities. Second, there is a virtual gold rush of new applications for water rights that are currently pending in Sabine Lake, Galveston Bay, Matagorda Bay and San Antonio Bay watersheds, along with existing problems in the Nueces Bay watershed and threats to the Aransas/Copano system from groundwater export plans in Refugio and Goliad Counties. Added to this are a number of concerns about consultants taking over and modifying official state models for surface water availability and bay and estuary productivity without any oversight or regulation. This concern is important because these models ultimately control permit decisions.

Our bays and estuaries need freshwater inflows from rivers along with the nutrients that are carried by this water in order to maintain their productivity. For instance, adult shrimp lay their eggs in the open Gulf, but the larval stages are transported back into the estuaries by tides. These larval shrimp thrive and grow if adequate nursery conditions exist in the estuary, including moderate salinity.

Trout, redfish and flounder feed on crabs, shrimp, shad, mud minnows and finger mullet that feed on a variety of even smaller food sources. Ultimately, the entire fishery depends to some extent upon microscopic plants called phytoplankton. Without freshwater inflows and the nutrients that come with them, we would not have the phytoplankton, and the fish and shellfish that depend upon them, and we would not have the nursery that supports the juveniles of most of these species.

The bottom line is that we might see our coastal bays and estuaries stolen from beneath our noses if we don’t get smart about what is going on and stop it.

THE TEXAS BLUE GOLD RUSH

There is a gold rush occurring in Texas, only it involves blue water rather than gold metal. Like no time in recent memory, applications and schemes abound to take water from our rivers and divert it to urban areas such as San Antonio, Dallas and Houston. Both groundwater and surface water are involved in the blue gold rush and the bays and estuaries up and down the coast are threatened.

Consider the following set of permit applications that have either been filed or are in the process of being filed with the Texas Commission on Environmental Quality (TCEQ). These applications are in addition to existing water rights that – for the most part – have claimed all of the dependable flow of our major rivers.

In the Sabine Lake watershed, the Sabine River Authority has applied for 293,000 acre feet in Toledo Bend Reservoir, the last remaining unappropriated water that Texas has a right to in that reservoir that is shared with Louisiana. They are seeking this additional water right even though they are only using about 2% of their existing water rights in Toledo Bend. (An acre-foot is approximately 325,000 gallons – anything over 100,000 acre-feet is a lot of water).

In the Galveston Bay system, the City of Houston has applied for 580,923 acre feet of return flows, 160,000 acre feet from the tributaries of the San Jacinto River and, along with the San Jacinto River Authority, 80,923 from Lake Houston. Additionally there are reuse applications by the Trinity River Authority and Tarrant Regional Water Authority on the Trinity River system. The return flows targeted in the City of Houston permit application were used to prove that there would be no harm to Galveston Bay from the widening and deepening of the Houston Ship Channel in late 1980s. The return flows were found to offset the increase in salinity in the bay resulting from the wider and deeper channel bringing more salt water in from the Gulf. A compromise was reached on the widening and deepening of the Ship Channel based on these modeling results. If these return flows were taken away from the Galveston Bay system, those modeling results would be wrong and Galveston Bay would likely be harmed by the increased salinity.

In the Matagorda Bay watershed, the Lower Colorado River Authority has applied for 850,000 acre feet of flood flows and 100,000 acre-feet of return flows from Austin. Additionally, the City of Austin has a competing application for 100,000 acre feet of return flows and the South Texas Nuclear Project has asked for 102,000 acre feet per year. An evaluation completed by the National Wildlife Federation indicates that if just the existing water rights on the Colorado were used without any new permits being issued, there would be no flow past Bay City in drier times and very little flow under average conditions.

And then in the San Antonio Bay watershed, the Guadalupe Blanco River Authority (GBRA), the San Antonio River Authority (SARA) and the San Antonio Water System (SAWS) have applied for 289,000 acre feet of new water. This is very disturbing because an analysis by the National Wildlife Federation found that if we have a repeat of a year equal to the worst in the recorded drought of the 1950s, freshwater flows to San Antonio Bay would fall to just 28% of those recorded in that worst year. This projection was made for existing permits to withdraw water and does not include potential reuse of wastewater as evaluated in the state’s WAM (more on this later) or pending applications. Furthermore, the NWF found that flows would be below the state-established salinity threshold for 24 consecutive months with full permit usage, compared to the worst historic period of 14 months below the salinity threshold. 24 consecutive months of elevated salinities could severely impact shrimp, oysters, blue crabs and the fish and wildlife, including potentially whooping cranes, which depend upon them.

Additionally, there are numerous groundwater projects where it is proposed that groundwater be taken from the county of origin and exported to urban areas. In Refugio County, Goliad County and Victoria County, a proposal exists to send over 50,000 acre feet of groundwater to San Antonio, and a separate but similar proposal exists to export groundwater from southern Refugio County to Corpus Christi. These groundwater proposals are particularly important in the Aransas/Copano Bay watershed where the Mission River receives 20,000 acre-feet of base flow from springs and seeps from groundwater. Oldtimers talk of how the Mission River flowed during the drought of the 1950s, yet it may be dewatered by these groundwater export proposals.

On top of these plans is the fact that we have almost lost Nueces Bay as a productive estuary due to the impact of Choke Canyon reservoir on freshwater inflows. In the early 1990s, commercial shrimping interests along with the Texas Parks and Wildlife Department caused the Texas Water Commission to address the failure of the City of Corpus Christi to release water to Nueces Bay. The full amount that was promised was never delivered but at least some water was released. Nueces Bay is recovering, but until the recent rains was receiving only a fraction of its historic inflows.

Finally, remember the Rio Grande drying up and a sand bar severing it from the Gulf a few years ago. During our lifetime, humans have managed to dry up a mighty river.

Our record in Texas of protecting our bays and estuaries is not something that we should brag about. Unfortunately, our management systems are about to be stressed much more seriously than they have been in the past. The bottom line is that I am concerned that our institutions are not up to the challenge and that we citizens of the coast who care about the bays and estuaries are going to have to take prompt and efficient action if we wish to save these resources.

MODELS – WEAPONS OF BAY DESTRUCTION

(OR PROTECTION)

Natural resource management and decision-making is dominated by computer models of various types. Our air pollution strategy is determined by computer models that track the formation of ozone and predict how particulates and air toxics are dispersed. Our water pollution control strategy is determined by models that identify the impact of organic pollutants on dissolved oxygen in streams. And our water supply decision-making is guided by a surface water model called the Water Availability Model (or WAM), a groundwater availability model (or GAM) and coastal models that predict fishery productivity (TXEMP) and salinity (TXBLEND) in the bays, often collectively refer to as the bay and estuary model.

The WAM is used to determine how much flow is expected in a river under a variety of conditions and to determine how much of the flow has been allocated by prior permitting. It allows the user to evaluate whether unappropriated (e.g. not subject to outstanding permits) surface water exists in the river and the percentage of time that the water is available. At the current time, the TCEQ is taking the position that water can be applied for and permitted even if it is available only some of the time. In other words, a certain amount of water is available during low flow periods and more is available during normal flows and even more is available during higher flows such as floods. In the past, the State of Texas attempted to ensure that the water that was permitted was available most of the time (e.g., 75% of the water must have been available 75% of the time). Now, we are moving into a brave new world of permitting withdrawals of surface water that is available less and less of the time which means less water will remain in the river and reach the bay.

The WAM is the tool that allows the permitting agency to determine how much water is getting to the bays and estuaries and how much is already appropriated. But who controls the WAM? The basic version of the WAM for the various watersheds was developed for the TCEQ by large engineering firms. However, a recent trend involves a permit applicant or their consultant obtaining the official state WAM and then hiring the same engineering firm to modify it to show either more water available and/or to obscure the environmental impact of proposed new permits. Also, in this manner, the modification is proprietary and is accomplished by a non-governmental party, resulting in the argument that the modified WAM cannot be obtained by outside parties through the Texas Public Information Act and similar freedom of information requests. Recently, attempts to obtain the modified WAMS from the GBRA, SARA and SAWS on the Guadalupe River have been made by several different groups. In all cases, GBRA/SARA/SAWS refused to provide the WAMS under the Texas Public Information Act.

The changes to these WAMs are substantial. I have been told that the underlying computer code is being modified, although the full extent of these changes have not been disclosed thus far. Changes in the computer code are serious. This is like changing DNA in an organism – it alters the message and it alters the result. Additionally, the basic assumptions, such as inflows from springs such as Comal and San Marcos, also are being altered. A key issue is whether or not return flows from sewage treatment plants should be considered in the WAM. To date, the Texas Water Development Board has taken the position that they should not be included because they may disappear through recycle or reuse concepts allowed under Texas law. However, these outside consultants are free to alter inputs and show these return flows in the WAM accounting process.

The bottom line is that the State of Texas has paid for the development of the basic WAM and is handing it over to the private sector. If these WAMs are being modified, who is evaluating these modifications to determine if they are right or not? Who is in control of determining how much water is actually available and how much will reach the coast? Who is minding our water store? Who is keeping track of our Blue Gold? Is it being stolen? Is it being created with smoke and mirrors?

A slightly different yet similar problem exists with the bay and estuary model that was used to develop a conservative estimate of freshwater inflow needs of each of the seven major bay and estuary systems of the Texas coast. For some time, the community that wishes to take more water from the streams and rivers has been complaining that the bay and estuary models developed by the Texas Water Development Board and the Texas Parks and Wildlife Department indicate that more freshwater is needed for the bays and estuaries than is actually warranted and that, in fact, the bays and estuaries can be productive with less fresh water than indicated by the model. There are also challenges being made that the models are simply in error although their methodology has been published in peer-reviewed scientific journals. At this time, challenges are being made to the bay and estuary models for virtually all of our bay and estuarine systems.

Under TCEQ rules, the Commission must consider impacts to bays and estuaries in deciding whether or not to issue water rights permits. At this time, the bay and estuary models are the only approved tool that we have to assist us in determining whether or not impacts to the bays and estuaries associated with the various permit applications are acceptable or not. These models were developed by Texas agencies under provisions of Texas law. For better or worse, they are our state models. Waiting on “perfect estuary science”, or any perfect science for that matter, can be a red herring. It is certainly reasonable to act on these existing models while acknowledging their imperfections and adjustments can be made later. This approach has been used in multi-billion dollar efforts to restore San Francisco Bay and many other aquatic systems.

It is also important to understand the implications of a successful attack on the bay and estuary model. If the bay and estuary impact models are set aside, there is no alternative method in place to make these bay and estuary impact determinations. In turn, the very real chance exists that all of the water rights permit applications set out in the first part of this update will be issued because of lack of evidence regarding whether or not negative impacts would result to the bay as a result of a decision to allow the removal of hundreds of thousands of acre feet from the bay. The sad truth is that in Texas, we always seem to err on the side of issuing permits, rather than on the side of natural resource protection.

The modeling issue may be worst with regard to the GAMs. Several different versions of GAMs are circulating in the consulting community. Here, each proponent of a groundwater export plan creates their own GAM that concludes that larger and larger volumes of groundwater are “available” for water supply usage. The results in GAMs for the same counties are spectacularly different. For instance, different GAMs for Refugio County show a range of from 9,000 to 50,000 acre feet of groundwater to be available.

If we do not take control of these modeling abuses and address them promptly and sternly, our blue gold will be removed from the bank.

HOW SHOULD WE PROCEED?

We are at a crossroads regarding water rights, exploitation schemes and protection of the bays and estuaries. We need assurance that when we make long-term investment decisions that we will not be irreparably destroying our coastal resources, yet such assurance does not exist at the current time. A decision by the City of San Antonio to construct a pipeline to bring water in from the Guadalupe River or the Colorado River will entail great expense and will not be changeable. We – the citizens of Texas – will have to live with it and its impacts for decades. We should insure that San Antonio has water, but our bays should not be harmed by that decision.

We need to be able to trust and believe in our computer models and we cannot at this time place our trust in either the models or the institutions manipulating these models. We need a process to bring credibility to our decision-making about water and our future. We need an orderly way of ensuring that the models are as good as we can make them and we need entities or institutions that we can trust to handle these models.

I suggest that we need to suspend all permit applications for a three-year period and assemble a panel of modeling experts to evaluate our current models and to make recommendations about how these models should be used in the decision-making process. Our permitting agency – the TCEQ – should take the results of this panel of modeling experts and enact enforceable rules implementing the recommendations of this panel of experts. In this manner, we can attempt to bring credibility to our models and to the permitting process.

If you have been watching coastal water issues, you will recall that the legislature directed the TCEQ to suspend processing on permit applications attempting to establish water rights to protect the bays and estuaries. These applications that were filed by the San Marcos River Foundation, the Matagorda Bay Foundation, the Galveston Bay Conservation and Preservation Association and the Galveston Bay Foundation were subsequently dismissed by the TCEQ and are now before the State District Court in Austin. The point here is that water rights applications to protect the bays and estuaries were set aside. As soon as they were set aside, in came the permit applications for hundreds of thousands of acre feet of water rights up and down the coast. These have not been dismissed. They are happening now.

If we don’t take steps to suspend these permit applications and set in motion a serious oversight process regarding these computer models, we will be faced with a regulatory process that will be controlled by the entity spending the most money on their WAM, GAM or bay and estuary model. Our coastal resources should not be for sale. They need to be protected and are facing an imminent threat. If we don’t act now to stop this, we will lose something very valuable.

NEXT STEPS

There are several steps that should be taken ASAP by everyone who is concerned about this issue.

1. Please contact or write your elected politicians. Most elected politicians do not know that local citizens are concerned about impacts to bays and estuaries or about the permitting process at the TCEQ. Let them know about your concerns. BE SURE AND REQUEST THAT THEY PASS LEGISLATION THAT WOULD PLACE A MORATORIUM ON NEW PERMITS FOR AT LEAST THREE YEARS PENDING ACCURATE SCIENTIFIC INVESTIGATION OF OUR WAMs, GAMs AND BAY AND ESTUARY MODELS.

Here are their addresses of the Governor and Lt. Governor.

Governor Rick Perry, Office of the Governor, P.O. Box 12428, Austin, TX 78711-2428

Fax 512-463-1849          www.governor.state.tx.us

Lt. Governor David Dewhurst, Capitol Station, P. O. Box 12068, Austin, TX 78711

Fax 512-463-0677         www.senate.state.tx.us

The Gov. and Lt. Gov. do not release email addresses.  You can only email them from their websites.

2. There are two Legislative committees currently working on this issue. There is the committee on environmental flows, formally named the Study Commission on Water for Environmental Flows, and the Senate Select Committee on Water Policy. I strongly recommend that you write to each member of these committees about your concern about this issue. BE SURE AND REQUEST THAT THEY PASS LEGISLATION THAT WOULD PLACE A MORATORIUM ON NEW PERMITS FOR AT LEAST THREE YEARS PENDING ACCURATE SCIENTIFIC INVESTIGATION OF OUR WAMs, GAMs AND BAY AND ESTUARY MODELS.

A. The members of the Select Senate Committee on Water Policy are:

Chair

.Kenneth L. Armbrister

Members:

Kip Averitt
Bob Deuell
Robert Duncan
Troy Fraser
Jon Lindsay

Eddie Lucio, Jr.
Frank L. Madla
Eliot Shapleigh
Todd Staples
Tommy Williams

The address for all the Senators is P. O. Box 12068, Capitol Station, Austin, TX 78711.

e-mail addresses are:     Kenneth.Armbrister@senate.state.tx.us

Kip.Averitt@senate.state.tx.us

Bob.Deuell@senate.state.tx.us

Robert.Duncan@senate.state.tx.us

Troy.Fraser@senate.state.tx.us

Jon.Lindsay@senate.state.tx.us

Eddie.Lucio@senate.state.tx.us

Frank.Madla@senate.state.tx.us

Eliot.Shapleigh@senate.state.tx.us

Todd.Staples@senate.state.tx.us

Tommy.Williams@senate.state.tx.us

B. The members of the Study Commission on Water For Environmental Flows

Co-Chair

. Sen. Kenneth L. Armbrister

Co-Chair

Rep. Robert Puente

Members:

Sen. Todd Staples
Sen. Jeff Wentworth
Rep. Bill Callegari
Rep. Charlie Geren

Joseph J. Beal
Jerry Lynn Clark

Joseph B.C. Fitzsimons
David Herndon
E.G. Rod Pittman
Andrew Sansom
Ben F. Vaughan
W.E. "Bill" West
Kathleen Hartnett White

Senators Armbrister, Staples and Wentworth mailing address:

P.O. Box 12068, Capitol Station, Austin, TX 78711

Representatives Puente, Callegari and Geren mailing address:

P.O. Box 2910, Austin, TX 78768

Kenneth.Armbrister@senate.state.tx.us

Robert.Puente@house.state.tx.us

Todd.Staples@senate.state.tx.us

Jeff.Wentworth@senate.state.tx.us

Bill.Callegari@house.state.tx.us

Charlie.Geren@house.state.tx.us

Joseph J. Beal, P.E., General Manager

Lower Colorado River Authority

P.O. Box 220

Austin, Texas 78767-0220

jbeal@lcra.org

Jerry Clark, General Manager

Sabine River Authority of Texas

P.O. Box 579

Orange, Texas 77631

jclark@sra.dst.tx.us

David Herndon, Attorney-at-Law

515 Congress, Ste. 2300

Austin, Texas 78701

dherndon@gdhm.com

Andrew Sansom, Executive Director

International Institute for Sustainable Water Resources

Texas State University

601 University Dr. - Clevenger House

San Marcos, Texas 78666-4615

andrewsansom@txstate.edu

Dr. Ben F. Vaughan IV, Assistant Professor

Department of Business

Texas Lutheran University

P.O. Box 90069

San Antonio, Texas 78209-9069

bvaughan@tlu.edu

W.E. "Bill" West Jr., General Manager

Guadalupe-Blanco River Authority

933 East Court Street

Seguin, Texas 78155

No email (only email contact listed is Dr. Todd H. Votteler, tvotteler@gbra.org)

3. Send this Coastal Update to people who you know are interested in this issue. Make sure that everyone you know is activated about this issue.

4. If you are a member of an organization such as Coastal Conservation Association, National Wildlife Federation, Environmental Defense, Audubon Society or Sierra Club, GBCPA, Galveston Bay Foundation, Sabine Lake Foundation, San Marcos River Foundation, Matagorda Bay Foundation or Coastal Bend Bays Foundation or any other groups, please contact your organization’s leadership and let them know that you are concerned about this issue and want them to act now to address this problem.

CONCLUSION

I have spent a lot of time observing, studying and writing about the Texas coast. My book – The Book of Texas Bays – is being published by Texas A&M Press and will be available in October 2004. I have been involved in many of the major legal battles on the Texas coast and I have carefully observed the ones that I was not directly involved in.

I am convinced we are facing a major crisis.

It is always hard to make up your mind to do something. We all have limited time and resources. We all have competing demands. However, if you care about the Texas coast, pay attention to this situation regarding freshwater inflows. We need to make sure that our blue gold is not stolen and that our productive bays are not destroyed. That potential is very real.

If we don’t act, we could lose the productivity of the Texas coast. If you care, please act. Action is the other side of doing nothing. You have to do something. So please – if you care about the Texas coast, act now.

Thanks for reading and considering this. Please pass it on to a friend that might care and act. Blackburn.