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Jan. 25, 2003, 9:04PM
By DINA CAPPIELLO
Copyright 2003 Houston Chronicle Environment Writer
Whoever thought Texans would pay to leave water right where it is?
But conservation groups are trying to do just that. Theirs is a novel effort to counter proposals across the state that call for draining wetlands, tapping rivers and siphoning flooded streams to supply the thirsty generations of the future. Using the very laws monopolized by developers to dam streams and build pipelines to cities and farmers, they hope to keep what water is left in place for wildlife.
"There is the biggest water grab going on right now in Texas. The permit applications are an attempt to pin down some amount of water," said Jim Blackburn, director of the Matagorda Bay Foundation. "We felt we had to get in the middle before decisions are made, or we'll miss out."
Blackburn's group is one of five -- four in the past six months -- that have applied for permits allowing access to water from Texas rivers. Their intent is not to use this water but to keep it flowing into bays and estuaries, where it is needed by fish and other wildlife.
The first application, from the San Marcos River Foundation, was filed in December 2000, a month before regional water districts were required to submit to the state plans for meeting water needs through 2050. By applying before the districts did, the foundation and the other groups could tie up water needed for major projects.
The efforts represent a new use of century-old state laws that traditionally have parceled out river flows to farmers, municipalities and other enterprises for the needs of man, without factoring in the requirements of nature.
In Texas, all water not underground belongs to the state. To remove it, users since the early 1900s have had to obtain a permit, or a right to a certain amount of water when it is available.
But until 1985, when the water law was amended, permits that accounted for billions of gallons of water were granted without considering the water needs of the environment.
Blackburn said the conservationists' recent applications aim to ensure that "ecological function is recognized."
"We are trying to get the water-rights system to recognize ecological capital," he said.
But state water planners argue that if these applicants prevail, large-scale projects to divert water from lakes and rivers to thirsty Texas cities may not have enough water to get off the ground, hindering efforts to supply water to a state population that is expected to double in 50 years.
"If these permits are issued for environmental use to the extent they have been applied for, many of the projects that were identified in the water plans will no longer be viable," said Dean Robbins, assistant general manager for the Texas Water Conservation Association, a trade group composed of state river authorities, municipalities and other water users.
Opposition to the conservationists' strategy has sparked a debate that is expected to continue before the state Legislature this session over how remaining environmental flows should be protected. Nearly 80 percent of all permits issued since the early 20th century came before the 1985 law change, and unless owners want to change a permit, it stands as it did decades ago.
Small amounts of water have been permitted exclusively for use in streams and rivers since the mid-1980s, but the applications now before the state seek more than 12 million acre-feet of water a year -- enough to supply 25 million families annually.
In some cases, the groups base the size of their requests on state studies showing what is needed to guarantee that fish and other wildlife on the coasts have enough fresh water to survive. In other cases, the request is a guess as to what would be needed if large water supply projects become a reality.
"I don't think it was in anybody's mind that some nonprofit would go out and apply for a million-plus acre-feet of water," said Todd Chenoweth, manager of the Texas Commission on Environmental Quality's water rights permitting system. An acre-foot of water is the amount that would cover an acre of land 1 foot deep, or about 325,000 gallons.
Rights in Texas are doled out on a first-come, first-served basis. Permits issued in the early 1900s draw water first. In a drought, that can leave subsequent permitted users, including bays downstream, parched.
"In almost every basin we have more permits available than water when we are in a drought condition," said Chenoweth.
But in times of flood, he said, there is more water available than there are rights issued. Municipal, industrial and agricultural users traditionally have not bothered to apply to take extra water during floods because they could not predict when the excess would be available. But as the population has grown, these flows are seen as increasingly important.
By applying for permits for this excess water before many of the state's long-term water projects, the five conservation groups seek to ensure that the needs of the lakes, bays and estuaries -- and the tourist and fishing industries -- are met first.
"It seems to us that the way you protect a certain amount of water for use is a water right, so that should also work for protecting water in a system," said Dianne Wassenich, executive director of the San Marcos River Foundation, which has received a draft permit from the state environmental quality commission for slightly more than half of the 1.3 million acre-feet it requested from the San Marcos and Guadalupe rivers. The cost of the permit is approximately $52,000, typical for such permits.
Floodwater flows also are being sought on the Colorado and Lavaca rivers and at Caddo Lake, the state's only natural lake. Nearly all the water, except that being applied for by the Lower Colorado River Authority, would be set aside in a trust established by the Legislature in 1997 for rights dedicated to the environment.
The trust was part of a broad set of initiatives championed by then-Lt. Gov. Bob Bullock to balance conservation with the water-supply needs of the future. The law called for regional water plans to be drafted by January 2001.
But in the six years since the bill passed, no one has utilized the trust. The four nonprofit groups applying for water rights would be the first.
"Water supplies that were not considered valuable in the past, like these flood flows, are now," said Robert Cullick, a spokesman for the Lower Colorado River Authority. "Environmental interests have determined that they don't want to lose the environmental impact of this water."
The authority, which controls much of the water in the Lower Colorado basin, differs from the other permit applicants in that it is not a conservation group. It is applying for all flows in its basin that have not been spoken for by previous permit holders. The authority would make some of that water available to cities and other users, and the rest would be kept in-stream for environmental purposes.
The permits could have serious implications for the state's water plans. In the case of the San Marcos River Foundation, the application has jeopardized a $600 million proposal by the Guadalupe Blanco River Authority, San Marcos River Authority and San Antonio Water System to funnel to San Antonio approximately 300,000 acre-feet of water from the lower Guadalupe and San Antonio rivers, relieving pressure on the stressed Edwards Aquifer.
Their permit application was received nearly two years after the application from the conservation group and includes plans for a $2.5 million study of the project's effect on the freshwater flows to the bay and on endangered whooping cranes.
Water planners argue that the purchase of water rights was never meant to be used as a way to preserve environmental flows. They contend that new permits for water should be granted only if there is a physical development of the resource, such as with a reservoir or pipeline. They have asked the Legislature to make the law explicit in not allowing environmental permits.
These proposals "are about somebody wanting to leave it right where it is," Robbins said. "They are proposing to leave it in place."
Robbins and other authorities, including the Lower Colorado River Authority, contend that the change in the law instituted in the mid-1980s has ensured that environmental flows are considered when water users seek permits. They argue that this is the mechanism that should be used to retain water for the environment.
"Every water right since 1985 has provisions to preserve for in-stream flows," said Bill Mullican, deputy executive of the Texas Water Development Board, the real estate broker for the state's water rights.
Yet advocates say that in the past, this process hasn't always guaranteed that bays and estuaries are protected.
Wassenich pointed to the death in the late 1990s of 13 whooping cranes. She and federal wildlife officials attribute the die-off to a lack of sufficient fresh water reaching San Antonio Bay -- a combination of drought and too many water rights. The saltier-than-normal water reduced the population of crabs, the main component of the whooping cranes' diet.
Only 185 of the cranes remain in the wild.
The other groups applying for environmental permits -- the Caddo Lake Institute and the Galveston Bay Conservation and Preservation Association -- are worried about similar effects in their basins if water plans move forward.
Part of the problem is the past. With most of the state's water rights handed out before the law recognized environmental flows, there are few ways to get this water back.
"We need to figure out ways to fix the problems before 1985," Robbins said.
"It's really important; it just hasn't gotten much attention."
Galveston Bay Conservation and Preservation Association
P.O. Box 323, Seabrook, Texas 77586
Phone: 281-326-3343
Website: www.gbcpa.org
E-mail: gbcpa@gbcpa.org