Our Water Matters: Protecting Environmental Flows in Texas

According to the Texas Living Waters Project, environmental flows “is a scientific term used to describe the quantity, quality and timing of water that are necessary to sustain the fish and wildlife of a river, wetland or coastal zone.” Environmental flows include “ instream flows” or flows in a river or stream and “freshwater inflows” or the flows of fresh water that travel the length of a river or stream and eventually reach an estuary system “where freshwater…flows into the ocean, mixing with the seawater.” As a coalition dedicated to ensuring that “Texas has the water it needs for thriving communities and abundant fish and wildlife,” the Texas Living Waters Project is warning that the health of our streams, rivers, and estuaries “is at serious risk from flow depletion.”

The protection of environmental flows is critical not only for a healthy environment, but also for a thriving economy. According to environmental attorney Myron Hess, the Texas Legislature has acknowledged that reality by stating that “[m]aintaining the biological soundness of the state’s rivers, lakes, bays, and estuaries is of great importance to the public’s economic health and general well-being… new water right permits, even if exceptionally well implemented, would not be sufficient mechanisms for protecting environmental flows and the water quality, seafood production, tourism, recreational fishing, wildlife, ecological, and aesthetic values those flows support.”

In his 2021 report titled “Delivering on the Unrealized Potential of Senate Bill 3 for Achieving Meaningful Environmental Flow Protection,” Hess explains that part of the issue lies in how Texas assigns surface water rights through “appropriation” which is “the legal process for obtaining a right authorizing a person to divert, store, or take surface water flowing in a watercourse.” Under this system, each right is “given a priority date based on when the right was recorded or recognized. During times of shortage, the water right with the oldest, or most senior, priority date has the first claim to the water.”

Hess puts the current situation into greater context, writing that “[a]lthough the environment was the first user of water in rivers and streams and flowing into coastal bays and estuaries, environmental use of water has been, and continues to be, near the end of the line—and at the tail-end of the priority system—in terms of protection in water rights management in Texas.” Because the surface water rights with the most senior priority “have the first claim on the available water during periods of shortage,” the state’s fish and wildlife could be left “high and dry if proactive steps are not taken soon.” Confronted with this risk, the Texas Legislature enacted Senate Bill 3 (SB 3) in 2007 to provide for the protection of environmental flows in the state’s eight major river basins.

Among other things, SB 3 established “a process for adopting environmental flow standards to inform flow-protection provisions for new water rights” and called for “affirmative strategies designed to help convert some existing perpetual water rights to flow protection purposes.” The Legislature further specified that “flow standards must consist of a schedule of flow quantities reflecting both seasonal and yearly variations that may vary by location.” These flow standards were intended to establish “target levels of environmental flows” and “to guide the inclusion of flow-protection provisions in new permits and to establish the targets for implementing affirmative strategies to help address the impacts of existing water rights.” Hess points out that “[e]nvironmental flow set-asides, through which specific quantities of unappropriated water would be declared off-limits from permitting for other uses, were envisioned as providing a foundation for meeting environmental flow needs, on which protective permit provisions and affirmative strategies could build.”

In the 17 years since SB 3’s passage, the Texas Commission on Environmental Quality (TCEQ) has adopted “initial flow standards…for most river basins in Texas, but those efforts have stalled,” according to Hess. “The adopted standards, while generally improving upon flow- protection approaches used since 1985, fall far short of protecting the levels of flow scientists identified as being adequate to protect a sound ecological environment.” Some of the major steps that TCEQ still needs to take include “adopting set-asides, which the agency previously declined to do, where unappropriated flow is available; revising flow standards applicable to new permits to be more protective and more consistent with science- based recommendations; and establishing comprehensive strategy targets for prioritizing efforts to implement voluntary flow protection efforts.” Recommended actions to be taken by lawmakers include “launching a new effort to develop proposals for improving water rights management and for facilitating voluntary conversions of existing rights to flow protection; revitalizing the stakeholder and scientific input processes informing flow protection efforts; and incorporating into the state’s water planning process consideration of affirmative strategies for helping to meet environmental flow needs,” according to Hess.

There is clearly much work to be done, and drought conditions in many of the state’s river basins will only make that work harder. There is also “a risk that some, particularly those who do not understand how much remains to be done to realize the potential of SB 3, may mistakenly believe or assert that…the challenge of flow protection has been met.” But this, Hess warns, “is far from true.”

Visit https://texaslivingwaters.org/deeper-dive/delivering-on-the-unrealized-potential-of-senate-bill-3/ to download the full report.


Trey Gerfers serves as general manager of the Presidio County Underground Water Conservation District. A San Antonio native, he has lived in Marfa since 2013 and can be reached at tgerfers@pcuwcd.org.