twj.media an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 volume 9, number 1 2018 issn 2160-5319 editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute twj.media the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit twj.media. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. cover photo: sunrise over coastal bend bays & esturaries program land. ©2017 john reuthinger. see winning photos at wildlifeinfocus.org http://texaswaterjournal.org http://wildlifeinfocus.org texas water resources institute texas water journal volume 9, number 1, march 13, 2018 pages 16-17 eckstein, g. 2017. the international law of transboundary groundwater resources. new york city (new york): routledge. isbn 9781138842984. 174 p. reviewed by dr. rosario sanchez1* book review: the international law of transboundary groundwater resources 1 senior research scientist, texas water resources institute, texas a&m university, tamu 2260, college station, tx 77840 *corresponding author: rosario@tamu.edu texas water journal, volume 7, number 1 mailto:rosario@tamu.edu texas water journal, volume 9, number 1 17book review: the international law of transboundary groundwater resources i once heard that water should not be considered a human right but a survival right. this simple statement can change the paradigm in which international law evolves toward the construction of an international groundwater legal framework, which today is nonexistent. as professor gabriel eckstein describes in his most recent contribution to the law of transboundary water — the international law of transboundary groundwater resources, “groundwater resources have historically been both neglected under and often omitted from international agreements and legal norms and therefore cursorily misunderstood among the lay, political, and legal communities.” as population increases at a rate higher than society’s ability to fulfill water needs, drought conditions become more ordinary, and land use patterns favor development and economic gain over ecosystems preservation, the risks associated with lack of groundwater regulation becomes more clear and pressing. regardless of the political boundary, groundwater tends to be presumed as a never-ending resource, mostly because of limited understanding of the hydrogeological complexity of an aquifer system. an additional barrier to public understanding is the lack of policies designed to protect and efficiently manage the “hidden treasure,” as the author has referred to transboundary aquifers in the past. if we add the transboundary element to the discussion of managing groundwater, the result is a less-than-adequate attention to the topic, probably avoiding the fear of what lies beneath or acknowledging too much for a limited political appointee. the law of transboundary groundwater resources – if there is any, as the author suggests — has not received proportional attention considering the level of dependency on groundwater resources for all uses and current or potential vulnerability of the overlying population, economic activities, and ecosystems. the compilation and analysis that this book achieved makes the book a required read for anyone interested in groundwater resources, as well as the role of groundwater in the international arena. it constitutes a textbook of the basics and interrelated topics and challenges that aquifers face as part of the hydrological cycle, in the context of the geopolitical boundaries that reign over the natural systems. the author begins his writing offering a practical hydrological description of the physics of groundwater to set the stage of how groundwater moves and behaves underneath shared land, some implications of the present level of groundwater use, and current challenges from a global perspective. it then addresses the different models of transboundary aquifers that could potentially be subjects of international water law (currently limited to the 1997 un watercourse convention), and those aquifers that fell outside the realm of the international legal context. eckstein and eckstein 2005 previously published these models in detail. the following sections focus on the development of the legal instruments that exist to address transboundary groundwater resources, early efforts since the middle of 1800s until the current stage of development of bilateral agreements (again limited to a couple), and evaluating the priority that the international arena has given to shared groundwater resources vis-à-vis surface water. the book analyzes in-depth the common principles and criteria that govern the un watercourse convention that came into force in 2014 and its applicability to groundwater resources. it is worth mentioning that the united states, mexico and canada are not signatories to the convention; though it might be a source of international customary law, its enforceability is limited in this part of the continent. the book’s last two chapters constitute the most important contribution from the author. in these chapters, eckstein discuss in-depth the current stage of groundwater and aquifers from an international law perspective, particularly the recent draft articles of the law of transboundary aquifers. he covers this section from an interdisciplinary approach addressing the different aspects included in the discussion of shared groundwater resources: legal considerations, criteria and principles, governance and institutional challenges, and binational agreements. eckstein brings a truly international perspective with a variety of examples that cover the global spectrum. he offers an in-depth analysis of the scope and potential long-term effectiveness of the law of transboundary aquifers, as well as limitations including the gaps and grey areas that have not been clearly defined. for example, the principle of “not to cause significant harm” has been commonly referred as one of the most contentious principle of the current stage of the law given its ambiguity and relativeness to the subject. the “threshold of significant harm” as the author refers to it, “has yet to be considered.” this book can easily be considered as the most important reference on the law of transboundary groundwater resources. the beauty of the international law of transboundary groundwater resources derives from its ability to present the complexity of the topic in plain and simple language for anyone interested in the topic without any specific expertise, bridging the science and policy perspectives into one book. reference eckstein y, eckstein g. 2005. transboundary aquifers: conceptual models for development of international law. groundwater 43(5): 679-690. commentary: texas comptroller’s good for texas tour: water planning and innovations texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 13 number 1 | 2022 http://texaswaterjournal.org volume 13, number 1 2022 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on on the texas water journal as well as our policies and submission guidelines, please visit texaswaterjournal.org. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. jude a. benavides, ph.d. the university of texas, rio grande valley gabriel b. collins, j.d. center for energy studies baker institute for public policy ken a. rainwater, ph.d. texas tech university rosario f. sanchez, ph.d. texas water resources institute michael h. young, ph.d. the university of texas at austin editor-in-chief todd h. votteler, ph.d. collaborative water resolution llc managing editor chantal cough-schulze texas water resources institute layout editor sarah l. richardson texas water resources institute editorial board kathy a. alexander, ph.d. texas commission on environmental quality cover photo: a view of the milky way over phoinix ranch in jim wells and live oak counties. ©2022 rey garza and jim quisenberry the texas water journal is indexed by scopus, google scholar, and the directory of open access journals. http://texaswaterjournal.org https://twri.tamu.edu/ http://texaswaterjournal.org https://twj-ojs-tdl.tdl.org/twj/support http://texaswaterjournal.org http://texaswaterjournal.org https://www.scopus.com/home.uri https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://doaj.org/toc/2160-5319 https://doaj.org/apply/seal/ texas water journal, volume 12, number 1 texas water resources institute texas water journal volume 13, number 1, august 26, 2022 pages 45-46 commentary: texas comptroller’s good for texas tour: water planning and innovations editor-in-chief 's note: the opinion expressed in this commentary is the opinion of the individual author and not the opinion of the texas water journal or the texas water resources institute. keywords: texas comptroller of public accounts, texas water policy 1 texas comptroller of public accounts * corresponding author: texas.cpa@cpa.texas.gov received 4 august 2022, accepted 11 august 2022, published online 26 august 2022. citation: hegar, g. 2022. commentary: texas comptroller’s good for texas tour: water planning and innovations. texas water journal. 13(1):45-46. available from: https://doi.org/10.21423/twj.v13i1.7150. © 2022 glenn hegar. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. glenn hegar*1 mailto:texas.cpa%40cpa.texas.gov?subject= https://doi.org/10.21423/twj.v13i1.7150 https://creativecommons.org/licenses/by/4.0/ https://journals.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 13, number 1 texas comptroller’s good for texas tour: water planning and innovations46 my job as the texas comptroller of public accounts (comptroller) is to monitor and support the state’s financial and economic well-being. i find that the best way, arguably the only way, to be successful in my position is to keep the interests of taxpayers top of mind. in my years as comptroller, i have prioritized face-to-face meetings with texans and showcasing the work they do to make this state a great place to live and do business. i believe it’s important to highlight not only how texans shine during the good times but also how we deal with challenges. my good for texas tour series does just that: it gives me and my constituents a firsthand look at economic development opportunities and challenges that have statewide implications. past tours have focused on topics like supply chains, cybersecurity, manufacturing, and more (statewide economic data n.d.). this fall, i will be embarking on another good for texas tour focused on water infrastructure, flood mitigation, innovative water solutions, and industries with a big stake in water, such as agriculture. i am proud to say that i have a long history of advocating for and supporting our state’s water planning initiatives, including the building of new infrastructure designed to conserve water and increase water supplies. i also am honored to have a seat on the board of advisors for the state water implementation fund for texas, a critical financial assistance tool for high-cost projects in texas’ state water plan (state water implementation fund for texas 2022). speaking of long history, texas and its residents have faced enormous weather-related challenges such as severe droughts over the years. the drought from 1950 to 1957, for instance, was one of the driest periods in texas’ modern history, and the u.s. department of agriculture estimated that it resulted in almost $40 billion (in 2021 dollars) in direct losses for the state’s agriculture sector alone (twdb 2022). the intense drought that occurred more recently, from 2011 to 2014, caused between $11.1 billion and $15.5 billion (also in 2021 dollars) in direct agricultural losses. unfortunately, we’re experiencing drought conditions across the state right now, with nearly 60% of the state in extreme drought conditions and 20% in an exceptional drought, as measured by the federal government (current u.s. drought monitor conditions for texas 2022). but our strong record of perseverance is why i firmly believe we’ll meet this challenge head-on and position our state as the nation’s leader in water planning and innovation. on my upcoming water tour, i will have the pleasure of meeting and learning from texans who turn water planning into action. this tour is timely for a slew of reasons. for one, the texas water development board released the latest state water plan earlier this year, and with our state rapidly growing in population and businesses continuing to move to texas, we must be more diligent than ever to ensure we have the water resources necessary for future generations (twdb 2021). additionally, the information we gather can help inform the 88th legislature, which convenes just a few months from now. legislative sessions are whirlwinds of activity, so up-to-date information about critical texas water issues will help legislators as they craft policy during a hectic time. in the june/july edition of fiscal notes, my office’s flagship publication on the trends and events affecting our state’s economy, we spotlighted the 2022 state water plan – water for texas and interviewed those intimately involved with the plan’s development (texas comptroller of public accounts 2022). there’s no getting around it: we have a long road ahead of us as we implement the strategies recommended in the state water plan. the adverse socioeconomic impacts of not meeting the state’s water needs over the next 50 years are immense and overwhelming. even with formidable challenges in mind, i’m optimistic about the future of water management in our state. on my upcoming tour, i’m looking forward to learning from those who oversee successful projects, talking with experts, and hearing from regular texans about the challenges they face. when all these stakeholders come together, meeting our state’s water needs will be in excellent hands. references current u.s. drought monitor conditions for texas. 2022. boulder (colorado): national integrated drought information system. available from: https://www.drought.gov/ states/texas. statewide economic data.texas.gov. n.d. austin (texas): texas comptroller of public accounts. available from: https:// comptroller.texas.gov/economy/economic-data/. state water implementation fund for texas. 2022. austin (texas): texas water development board. available from: https://www.twdb.texas.gov/financial/programs/swift/ index.asp. texas comptroller of public accounts. 2022. june/july 2022 fiscal notes. austin (texas): texas comptroller of public accounts. 12 p. publication #96-369. available from: https://comptroller.texas.gov/economy/fiscal-notes/2022/ jul/water-plan.php. [twdb] texas water development board. 2021. 2022 state water plan – water for texas. austin (texas): texas water development board. 202 p. available from: https://www. twdb.texas.gov/waterplanning/swp/2022/index.asp. [twdb] texas water development board. 2022. drought in texas: a comparison of the 1950‒1957 and 2010‒2015 droughts. austin (texas): texas water development board. 101 p. available from: https://www.twdb.texas. gov/publications/reports/other_reports/doc/drought-intexas-comparison-1950s-2010s.pdf. https://www.drought.gov/states/texas https://www.drought.gov/states/texas https://comptroller.texas.gov/economy/economic-data/ https://comptroller.texas.gov/economy/economic-data/ https://www.twdb.texas.gov/financial/programs/swift/index.asp https://www.twdb.texas.gov/financial/programs/swift/index.asp https://comptroller.texas.gov/economy/fiscal-notes/2022/jul/water-plan.php https://comptroller.texas.gov/economy/fiscal-notes/2022/jul/water-plan.php https://www.twdb.texas.gov/waterplanning/swp/2022/index.asp https://www.twdb.texas.gov/waterplanning/swp/2022/index.asp https://www.twdb.texas.gov/publications/reports/other_reports/doc/drought-in-texas-comparison-1950s-2010s.pdf https://www.twdb.texas.gov/publications/reports/other_reports/doc/drought-in-texas-comparison-1950s-2010s.pdf https://www.twdb.texas.gov/publications/reports/other_reports/doc/drought-in-texas-comparison-1950s-2010s.pdf book review: water is for fighting over: a compilation of articles on water resource management in texas texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 7 number 1 2016 texas water journal http://texaswaterjournal.org volume 7, number 1 2016 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university kevin l. wagner, ph.d. texas water resources institute ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources staff editor kristina j. trevino, ph.d. cover photo: lake austin dam on the colorado river, june 15, 1935. photo co8484, austin history center, austin public library. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 7, number 1, pages 67-68 roper co, linton t. 2015. water is for fighting over: a compilation of articles on water resource management in texas. self-published. 176 p. reviewed by robert e. mace1* book review: water is for fighting over: a compilation of articles on water resource management in texas 1 deputy executive administrator of water science and conservation, texas water development board, p.o. box 13231, austin, texas 78711-3231 * corresponding author: robert.mace@twdb.texas.gov texas water journal, volume 7, number 1 citation: mace re. 2016. book review: water is for fighting over: a compilation of articles on water resource management in texas. texas water journal. 7(1):67-68. available from: https://doi.org/10.21423/twj.v7i1.7046. © 2016 robert e. mace. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:robert.mace@twdb.texas.gov https://doi.org/10.21423/twj.v7i1.7046 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 7, number 1 book review: water is for fighting over68 future generations will surely look back at the drought that plagued texas from 2010–2015 as historic. not only was it the second longest statewide drought, but it resulted in record agriculture losses, record wildfires, and some harrowing months for communities struggling to meet water demands. it also sparked the long-desired creation of a funding mechanism to implement the state water plan (ironically from what is popularly called the rainy day fund), a holy grail pursued since the birth of stakeholder-driven texas water planning in 1997. the drought also produced this little gem of a book: water is for fighting over: a compilation of articles on water resource management in texas, a highly readable collection of 64 chronologically presented short articles written by ms. chris o’shea roper and dr. tom linton for the galveston county daily news and reprinted in 8 small-town newspapers across the state. roper is a freelance writer who often writes about coastal ecological issues, and linton is a marine biologist at texas a&m university-galveston. the writer-scientist collaboration works well. the authors state that “[t]he book is intended to present both water management issues and potential solutions.” that’s an overly dry and underserving description of the book—it’s much more than that. what’s so enjoyable and fascinating about this tiny tome is its real-time diaristic nature. little did the authors know when they began the series that the drought would continue for another 4 years, and they followed it to the bitter end, experiencing and writing about the various ups and downs of weather and water policy. just like the movie titanic, we already know the ending; the fun and fascination is experiencing the event through someone else’s eyes. the book’s stated purpose and title suggest you may be lectured about what to do about water (especially when you see “ph.d.” on the cover). in it i didn’t find solutions so much as discussions on the latest water conservation techniques or non-traditional water technology, such as desalination, reuse, and waterless fracking. the book is eminently friendly. it’s a one-sitting read or, if you prefer, its short essays lend it to leaving on top of the reader’s digest next to your dual-flush toilet. the authors begin, in november 2011, at a texas water development board meeting to approve the 2012 state water plan. and the story unfolds from there. some of the topics covered include the cost of water, subsidence, conservation, the edwards aquifer, the trinity river, water planning, legislation, ownership of water, hydraulic fracturing, desalination, reuse, the brazos river watermaster, el paso, funding the water plan, and environmental flows. in other words, almost everything in texas water. being from and writing for galveston, the authors emphasize galveston-area water issues; however, the authors travel the state, check out water issues in las vegas, and even wind up at an international water conference in scotland to talk about texas water. water issues tend to be global, so even galveston-specific discussions are relevant to other parts of the state. there’s some unavoidable repetition of facts, but that’s forgivable given the original format of the writings. interesting tidbits pepper the book’s essays, such as: • rice is known as the “king of the coastal prairie.” • in 1925, the texas department of health called the trinity river a “mythological river of death.” • pat mulroy allegedly said that her friends in new orleans told her: “you are welcome to our floodwaters.” • “due to subsidence, erosion, and/or development, we have lost 25% of our wetlands in the last forty years. sea grass loss is put at 80%.” the book’s biggest failings are its financial discussions. the authors write that all federal water resource development act funding for texas passes through the texas water development board (none of it does), that the board has managed an evergreen bond fund since 1987 (it’s actually a bonding authority that was given to the agency in 2011), and that funding more than $50 billion in infrastructure needs with the $2 billion entrusted with the board is a “mission impossible” (the $2 billion was only intended to fund $27 billion in infrastructure needs [those needs identified in the state water plan as needing state financing] and is being used as a reserve fund to achieve that level of financing over the next 50 years). however, the authors are certainly not the only ones thoroughly confused by what looks like a rube goldberg machine to non-financiers, as the state water implementation fund for texas sometimes does. the authors attended the texas water foundation’s rainmaker award ceremony on may 8, 2014 to honor former texas rep. allan ritter for his efforts as the chairman of the texas house committee on natural resources in funding the implementation of the state water plan. attending and writing about this event is poetically perfect, providing one of several satisfying endpoints to the story arc of drought, its impacts, and its outcomes. the narrative ends august 1, 2015, after the end of the statewide drought, after the 84th texas legislative session, and after the authors spoke at the world water conference in scotland, completing their journey of documenting for future generations one perspective on what happened during this terrible drought. appropriately enough, the authors conclude with these words: “we are all in this together.” book review: the water recycling revolution: tapping into the future texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 13 number 1 | 2022 http://texaswaterjournal.org volume 13, number 1 2022 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on on the texas water journal as well as our policies and submission guidelines, please visit texaswaterjournal.org. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. jude a. benavides, ph.d. the university of texas, rio grande valley gabriel b. collins, j.d. center for energy studies baker institute for public policy ken a. rainwater, ph.d. texas tech university rosario f. sanchez, ph.d. texas water resources institute michael h. young, ph.d. the university of texas at austin editor-in-chief todd h. votteler, ph.d. collaborative water resolution llc managing editor chantal cough-schulze texas water resources institute layout editor sarah l. richardson texas water resources institute editorial board kathy a. alexander, ph.d. texas commission on environmental quality cover photo: a view of the milky way over phoinix ranch in jim wells and live oak counties. ©2022 rey garza and jim quisenberry the texas water journal is indexed by scopus, google scholar, and the directory of open access journals. http://texaswaterjournal.org https://twri.tamu.edu/ http://texaswaterjournal.org https://twj-ojs-tdl.tdl.org/twj/support http://texaswaterjournal.org http://texaswaterjournal.org https://www.scopus.com/home.uri https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://doaj.org/toc/2160-5319 https://doaj.org/apply/seal/ texas water journal, volume 13, number 1 texas water resources institute texas water journal volume 13, number 1, december 7, 2022 pages 64-65 book review: the water recycling revolution: tapping into the future alley wm, alley r. 2022. the water recycling revolution: tapping into the future. lanham (maryland): rowman & littlefield. isbn 9781538160411. 231 p. 1 the meadows center on water and the environment, department of geography and environmental studies, texas state university * corresponding authors: robertmace@txstate.edu received 19 august 2022, accepted 20 september 2022, published online 7 december 2022. citation: mace re. 2022. book review: the water recycling revolution: tapping into the future. texas water journal. 13(1):64-65. available from: https://doi.org/10.21423/twj.v13i1.7154. © 2022 robert e. mace. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. reviewed by robert e. mace*1 mailto:robertmace%40txstate.edu?subject= https://doi.org/10.21423/twj.v13i1.7154 https://creativecommons.org/licenses/by/4.0/ https://journals.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 13, number 1 65book review: the water recycling revolution: tapping into the future one of my ph.d. advisors (dr. john [jack] sharp jr.) liked to tell a joke back in the 1990s: “i have good news and bad news. the good news is that we are going to be drinking each other’s wastewater effluent. the bad news is that there isn’t going to be enough!” at the time, we chuckled—and maybe even guffawed—but today, this is becoming more and more of a reality. william and rosemarie alley, the married supercouple who have previously published books on radioactive waste disposal and the u.s. environmental protection agency, address this coming water-reuse revolution by documenting its technical, political, and sociological history. dr. bill alley is the scientist in the duo, providing technical rigor and experience to the writing and research and leveraging his hydrogeologic background to provide accurate watery context. rosemarie alley is the non-scientist writer weaving an engaging story and keeping the text understandable to non-specialists. and they succeed with a readable book of reasonable length that is simultaneously full of interesting and useful information for technical and non-technical readers alike. the science and engineering discussions are appropriately short and sweet to meet the goals of the book, because it’s really the people and their stories that are the most interesting, especially with a topic as touchy as toilet to tap. take, for example, the revolting grandmas (not to be confused with the mid-1980s wax trax band of a similar name). the grandmas were a colorful opposition group that protested against potable reuse in san diego, preferring “showers to flowers” non-potable reuse over “toilet to tap” potable reuse. or how the purple pipes used to mark reuse water became purple (and specifically irvine purple). or the awareness campaign titled “what happens in vegas doesn’t stay in vegas” that informed californians that they were already drinking treated wastewater. or how denver operated the first direct potable reuse pilot project in the united states from 1985 to 1991. or that the public has preferred treated wastewater to conventionally treated raw water in blind taste tests. the alleys dug up a lot of interesting reuse history during their research. for example, they suggest that chanute, kansas, had “in many ways” the first direct potable reuse project in the united states. in 1956, chanute dammed the then-dry neosho river below their wastewater discharge back up water to their upstream intake. this dam and the subsequent storing of treated wastewater resulted in a 17-day residence time from discharge point to the intake where was pumped into their surface-water treatment plant and delivered to customers. but, with apologies to gertrude stein, an environmental buffer is an environmental buffer is an environmental buffer, so i would still call that indirect reuse. but i get their point. i was relieved to see that the alleys got the facts right. i have an argument recurrence interval (ari) of 1.4 months over cloudcroft’s direct potable reuse project (people erroneously think that it has been up and running for years) and an ari of 2.7 over singapore’s reuse (people erroneously think that they do direct potable reuse). so i was pleased to see that the alleys got those details and many others right. as you might expect, various projects in texas appear in the book, including projects in el paso, san antonio, big spring, wichita falls, austin, and even wimberley. but they missed north texas municipal water district’s engineered wetlands— the largest in the united states—in the dallas-fort worth area, which is a project that doubled the firm yield of the district’s reservoir. the prominent role water reuse (and direct potable water reuse) plays in texas’ water plan also did not make it into the book. it was surprising that more real estate (barely one page) wasn’t dedicated to the direct potable reuse project in big spring, texas since it was the first project of its kind in the united states. the book presents the big spring project as a small-town deal, missing that the water is delivered not only to big spring but also to other customers of the colorado river municipal river district, including midland and odessa. if i have a quibble, it’s with the organization: the various stories seem randomly presented under broad topical banners. perhaps due to the couple’s location in california, there is much more emphasis on the reuse stories from the golden state than other parts of the united states. outside of the united states, only namibia is mentioned—but if you only mention one country, that’s the one. it might have been better to have told the story of water reuse over time, progressing from decade to decade. i also wish the alleys had directly tackled the reliability of water reuse, which many erroneously think of as a reliable source of water simply by definition. however, water reuse is only as reliable as its source water and acts as a primary source amplifier. when the source water is gone, so is the reuse in short order due to system losses. regardless, the authors make an excellent point on the greenhouse gas emission benefits from reusing water instead of transporting and treating raw water, especially for interbasin tranfers. despite my quibbles, this is a must-read book for the water reuser or anyone interested in the subject, including newbies. it’s an easy read about a critically important resource. and as dr. sharp noted about the reuse resource, there isn’t going to be enough of it to go around. book review: bitter waters: the struggles of the pecos river texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 7 number 1 2016 texas water journal http://texaswaterjournal.org volume 7, number 1 2016 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university kevin l. wagner, ph.d. texas water resources institute ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources staff editor kristina j. trevino, ph.d. cover photo: lake austin dam on the colorado river, june 15, 1935. photo co8484, austin history center, austin public library. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 7, number 1, pages 64–66 dearen, p. 2016. bitter waters: the struggles of the pecos river. norman (oklahoma): university of oklahoma press. isbn: 9780806152011. 256 p. $17.97. reviewed by colin mcdonald1* book review: bitter waters: the struggles of the pecos river 1freelance writer *corresponding author: mcd.colin@gmail.com texas water journal, volume 7, number 1 citation: mcdonald c. 2016. book review: bitter waters: the struggles of the pecos river. texas water joural. 7(1):64-66. available from: https://doi.org/10.21423/twj.v7i1.7043. © 2016 colin mcdonald. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v7i1.7043 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 7, number 1 65book review: bitter waters: the struggles of the pecos river the most basic assumption about a river is that it will dilute salts and carry them away to sea. the pecos river of west texas has never lived up to such expectations, despite what the land speculators and politicians say. as it cuts across the chihuahuan desert, the twisting river is lined with 4 centuries of stories describing decade-long droughts and water so salty it kills livestock and sterilizes farmlands. the looming river has become a popular setting for western novels and films. now someone has taken on the stranger than fiction story of the river itself. in his book, bitter waters: the struggles of the pecos river, western novelist patrick dearen walks readers through the geology, hydrology, climate, history, and politics that make the pecos one of the most misunderstood and mistreated rivers in the lone star state. the legal battles of the pecos were well documented in 2002 by g. emlen hall in high and dry: the texas-new mexico struggle for the pecos river, but dearen is the first to tackle the entire story from a west texas perspective. he writes about the pecos’ headwaters in the 13,000-foot-high sangre de cristo mountains, where climate change and a century of fire suppression have left dwindling snow packs and catastrophic-fire-prone forests of dying pine trees. he writes about how underground nuclear explosions are suspected in altering and enhancing the pathways of the salty springs that have always been the bane of anyone looking to get a drink from the pecos. he writes about how the increasing salt load of the river is presenting a threat to everything downstream, including the rio grande valley. none of these subjects are new. in the first chapter, he includes a quote attributed to a 1942 report by the national resources planning board: “for its’ size, the basin of the pecos river probably presents a greater aggregation of problems associated with land and water use than any other irrigated basin in the western u.s.” the strength of dearen’s work is the perspective he brings to a subject that is usually dominated by lawyers, scientists, academics, and bureaucrats. dearen’s expertise lies with the particular personality and character of the west. his previous work includes being a reporter at local newspapers, collecting the oral histories of cowboys, and trying his hand at science fiction writing. he was born in west texas in 1951 and has spent his career there. he has a flare for introducing each chapter’s subject— invasive plants, water compacts, endangered species—as if they were characters walking into a dusty saloon and sparking an unexpected plot twist. “again, the long struggle between states seemed over, but now the river offered up new threats to plague the very waters that would come texas’ way,” he writes to introduce golden alga, the latest and possibly most horrific result of the outdated water policy of the pecos. with this twist, dearen introduces a creature stranger than science fiction that is perpetuated by the classic western theme of neighbors not getting along to the detriment of all. the single-cell organism made its first appearance in the western hemisphere on the pecos in the 1980s. it’s a mystery how golden alga got there or what triggers its sudden random exponential growths in population, but the results are not. the blooms of alga are thick and turn the water a golden color. they also dissolve the cells of fishes’ gills and internal organs, causing them to slowly die. the blooms can be controlled, or at least drastically reduced, by freshwater inflows. but on the pecos in texas, freshwater flows are rare. it is now common to see tens of thousands of dead fish floating on any reach of the pecos, all the way to the confluence with the rio grande. the stronghold for this invasive foreigner is red bluff reservoir, which was created by a federally subsidized dam in 1936. the water of the shallow and leaky reservoir is controlled by the red bluff water power control district. its authority was granted by federal and state governments that were desperate to create jobs during the great depression and when little was known about the flows of the pecos. although the nearby fields of cotton, alfalfa, and melons were already switching to wells when the dam was built and often cannot use the water held by the reservoir, the district resists change. the power plants have been abandoned. there was rarely enough water for them to operate. with the aid of the desert sun, the water in the reservoir becomes ever saltier and warmer, enabling the golden alga to multiply ever faster. the lake is now so hostile to fish that the state of texas has given up stocking it or even conducting fish surveys. when the water is released downstream, it can spark fish kills all the way to the confluence with the rio grande. it would seem that such a menace to the texas reach of the pecos would be enough to spur a unifying movement to find a way to stop the alga. but that would be the naive reaction of someone who does not understand the history of the pecos and the deep divisions and pride that keep people from working together. dearen, on the other hand, knows who to interview. he boils the story down to its most basic elements with quotes from those who actually live and work with the river. “we may be obsolete someday,” conceded robin prewit, a longtime employee of red bluff district. “maybe this isn’t the best use of the water… but at least give some credit for what it is and how it came to be and what it means to some people.” dearen’s book was commissioned by the pecos river resolution corporation, which was founded by oilman p. lourcey sams and dedicated to recording the facts of the river that will lead to a “comprehensive understanding of the best overall use texas water journal, volume 7, number 1 book review: bitter waters: the struggles of the pecos66 of the pecos river and what would be involved in accomplishing this mission,” according to the corporation’s website. the project was made possible by the underwriting of the nita stewart haley memorial library in midland, texas, and by contributions from oil and gas companies and foundations, including the apache corporation, concho resources, and the permian basin area foundation. while this backing may have limited dearen’s scrutiny of the oil and gas industry, it did not stop him from a telling a history that needs to be shared. his book is not the complete story of the pecos. no book ever could be. but it is a start to understanding why the pecos is such a great place for a western novel and lousy place to be a fish. book review: water is for fighting over and other myths about water in the west texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 7 number 1 2016 texas water journal http://texaswaterjournal.org volume 7, number 1 2016 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university kevin l. wagner, ph.d. texas water resources institute ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources staff editor kristina j. trevino, ph.d. cover photo: lake austin dam on the colorado river, june 15, 1935. photo co8484, austin history center, austin public library. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 7, number 1, pages 82-84 fleck, j. 2016. water is for fighting over and other myths about water in the west. washington, d. c: island press. isbn: 9781610916790. 246 p. reviewed by colin mcdonald1* book review: water is for fighting over and other myths about water in the west 1freelance writer *corresponding author: mcd.colin@gmail.com texas water journal, volume 7, number 1 citation: mcdonald c. 2016. book review: water is for fighting over and other myths about water in the west. texas water journal. 7(1):82-84. available from: https://doi.org/10.21423/twj.v7i1.7049. © 2016 colin mcdonald. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v7i1.7049 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 7, number 1 83book review: water is for fighting over the only time reporting about water policy is exciting is when people believe the water is about to run out. many of the great works about water governance in the west, from cadillac desert to the fictional film china town, chronicle epic bureaucratic battles of greed and selfishness against a backdrop of a looming drought. the standard characters include rich white men running cities against well-organized white farmers. each party rushes for the moral high ground and tries to frame the other as wasteful and ungrateful. they have their fateful day in court a decade or so later, a judge chooses a winner and loser, and we start all over again. treaties and compacts, state and federal laws, all support and encourage this well-used plot. there is little room in this legal system or storyline for the water rights of tribes or ideas such as rivers should carry enough water to reach the sea. the winners in the short-term battle for water rights conveniently ignore the long-term reality that surface water and groundwater are related and the depletion of one will eventually have a direct impact on the other. the mantra is: take every drop you can before someone else does. storytellers and lawyers have applied this well-used trope to describe almost every water body, above or below ground, west of the 100th meridian. it is the go-to narrative from small town newspapers to big budget documentaries. editors love to add that mark twain said: “whiskey’s for drinkin,’ water’s for fightin’ over.” journalist john fleck argues this narrative is a bit dated. after more than 30 years of writing about water, he introduces a new approach to stories about water with his latest book, water is for fighting over and other myths about water in the west. he begins with stating there is no substantive evidence mark twain ever said or wrote anything about the purpose of whiskey and water. wanting to reach a broader audience than the water wonks he spent his career chronicling, fleck purposefully wrote what he calls a short book. with 201 pages of text and 43 dedicated to notes and the index, he introduces a new storyline that is not nearly as exciting but is much more accurate and worthy of attention. “when people have less water, i realized they use less water,” he writes about the drought that gripped the west in the first part of this century. “in spite of the doomsday scenarios, westerners were coping, getting along with their business in the face of less water.” fleck makes the pitch we need to move away from focusing on stories about lawsuits and shortages. the administrative nightmare of getting 19th century water law and 20th century infrastructure to meet the needs of the 21st century is scary. climate change will further reduce and introduce more chaos to an already over allocated supply. however, there is hope in examining the adaptations that are taking place. these changes are usually small and do not meet everyone’s ecological, economic, and recreational desires. but, they are working and meeting more of those desires than they are getting credit for. even with the crutch of a pending disaster, explaining water policy is not easy. fleck makes this even harder on himself by introducing readers to the psychology and game theory that goes into compromises with a backdrop of water law, traditional water management, and the massive engineering projects that has allowed cities and farms to sprout up in deserts. the skill fleck has for this task is from having written about water policy for a general audience for three decades as a newspaper reporter and that he dedicated his book to the water issues of the colorado river. the colorado is the most litigated and over-allocated river in the west. the economies of entire cities and states and vast ecosystems depend on it. failure is not an option and yet it seems assured. as such, it is one of the best places to see how experiments in compromise are playing out. fleck then tackles these solutions and breaks them down to a simple narrative. fleck explains how successful farmers are increasing their profits while using less water via new crops, research, and monitoring. he shows how others are collaborating with cities to share water during droughts to make even more money. he highlights las vegas’ record of conserving water and reducing demand while it continues to grow. he chronicles the excitement generated by the breakthrough multi-national agreement to allow the colorado river to trickle into the gulf of california for a couple of weeks. he explains how cities, pumping from the same aquifer, worked together to protect their mutual interests instead of harming each other. the details of how these realities came to be are not nearly as exciting or as easy to understand as the narrative of specific interests groups fighting for their own limited interests. the new winners are those who are able to understand the positions others have taken and look for common ground and ways to share that benefit everyone. fleck is really just re-introducing us to a storyline most of us were supposed to learn in kindergarten. fleck also points out that even the water buffaloes—the members of the once exclusive club that controlled the rivers and aquifers—are realizing they too have to make room for the groups they used to ignore. the commercial and recreational fishermen, birders, tribes, and river runners are becoming organized, hiring lawyers, and learning the lawsuit game. they too can sue if a project or plan does not incorporate their needs. they do not always win, but they can bring entire process to a standstill. fleck knows the stories about sharing, conservation, and compromise are not as sensational as a governor using the national guard to delay the construction of a federal dam or as texas water journal, volume 7, number 1 book review: water is for fighting over 84 understandable as farmers versus cities versus the environment. instead, his stories are about lots of long meetings, formal and informal, where actual people propose and analyze ideas and then build up the courage to try them. “they have to be implemented painstakingly, one farm district and municipal water agency at a time,” fleck explains. “that is the project ahead of us.” every compromise fleck examines shares a common thread of groups that used to battle each other coming together. the actual combination of facts on the ground, personalities, and history of the issue are as unique as the drainages and aquifers they are about. fleck’s book does not spell out the solution. rather it documents where and how solutions are found. fleck points out there is also less tolerance by the public for the old guard who point to 100-year-old treaties and compacts as proof that they cannot do anything. under such agreements, phoenix would lose all of its colorado water, while california would lose none. the colorado river would also never reach the sea again. we would lose our best tools for adapting to climate change. the public will eventually demand that the system changes, because letting a city of 2 million lose its main water supply will not work. “we need new rules,” fleck writes. “absent that, we simply end up with a tragedy of the commons.” west texas is full of examples of the later. springs and rivers have gone dry and cities and farms have disappeared. in short, fleck’s book points out that we have alternatives if we are willing to try. book review: regulating water security in unconventional oil and gas twj.media an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 11 number 1 | 2020 volume 11, number 1 2020 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineer-ing, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. jude a. benavides, ph.d. university of texas, rio grande valley managing editor chantal cough-schulze texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. trinity university kerry halladay texas water resources institute editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute cover photo: tres palacios river at fm 1468 near clemville, texas. ©2019 ed rhodes, twri. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. https://www.texaswaterjournal.org https://www.texaswaterjournal.org https://twj-ojs-tdl.tdl.org/twj/index.php/twj/support texas water journal, volume 11, number 1 texas water resources institute texas water journal volume 11, number 1, april 30, 2020 pages 61-63 book review: regulating water security in unconventional oil and gas 1 attorney practicing in texas * corresponding author: jfosterlegal@gmail.com citation: foster j. 2020. book review: regulating water security in unconventional oil and gas. texas water journal. 11(1):61-63. available from: https://doi.org/10.21423/twj.v11i1.7114. © 2020 jessica foster. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or the twj website: https://twj-ojs-tdl.tdl.org/twj/index.php/twj/ about#licensing. buono, regina m., lópez gunn, elena, mckay, jennifer, and staddon, chad (eds.). 2019. regulating water security in unconventional oil and gas. cham (switzerland): springer international publishing ag. isbn 978-3-030-18341-7. 418 p. reviewed by jessica foster1* https://doi.org/10.21423/twj.v11i1.7114 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 11, number 1 book review: regulating water security in unconventional oil and gas62 in 2018, the united states became king of oil and, until recently, oil was king. now, though its future reign suddenly appears uncertain, oil and gas still decisively dominate the energy industry. and when the united states surpassed saudi arabia and russia to become the world’s largest producer of crude oil for the first time this millennium, it had hydraulic fracturing to thank. but this “fracking” process that frees previously unrecoverable oil and gas from tight formations by fracturing the rock with highly pressurized fluid uses 5 to 11 million gallons of water per well. it’s also no secret that, as the human population continues to grow, having enough freshwater resources available to sustain them will become an increasing challenge. meanwhile, many places in the u.s. (and texas, in particular) have suffered through extreme drought, with some communities facing the possibility that their water supply could run out. against this backdrop comes regulating water security in unconventional oil and gas, a collection of articles authored by professionals from disciplines as diverse as agriculture, zoology, law, and economics. the book takes a multidisciplinary look at how issues related to water for unconventional oil and gas production affect water security of a nation, state, community, or sector of industry—and possible pathways toward regulations that balance economic development with the human right to water. the authors examine what other regions have been experiencing to illustrate some of the common difficulties and differing perspectives, challenges, and solutions being attempted. authors’ contributions are presented in four parts, making the dense subject matter digestible. before delving into the details, part i sets the stage by providing a general framework in which the authors examine the complex issues raised. parts ii, iii, and iv of the book then dig deeper, using case studies to explore first how operators procure water, then issues involved in disposal of water used and produced in fracking, and finally macro-scale regulatory planning. a consistent theme of the book is the need to look at these issues in an integrated way, recognizing the trade-offs involved in every decision related to water management for unconventional oil and gas production. of primary concern is that, given the water-energy nexus, the two must be considered holistically. rather than adopt a silo mentality in which institutions and sectors manage water resources independently, industry, agriculture, energy, and municipalities (to name a few) must collaborate with each other and with stakeholders who will be affected by the policies or decisions made. the book also notes a gap between decision-makers and the most current science necessary to inform regulations, law, and policy applied to water for this sector of the energy industry. sustainability is another key piece of this framework. given that water is often scarce in the most significant oil and gas production zones, authors question whether unconventional oil and gas production practices are sustainable over the long term. and, even in the near term, public concern over water use, environmental contamination, and seismicity threaten the “social license to operate.” losing that social license makes public demonstration against oil and gas development more likely. in examining water acquisition, the authors’ main areas of concern are the water footprint of practices like fracking and the unpredicted effects this water usage has had on ecosystems. throughout the book, authors reiterate the massive water footprint of each hydraulic fracturing well. meanwhile, in the united states, the pressure to develop shale gas is only expected to increase. unfortunately, the hottest shale plays in the world are often located where water is least secure, such as the permian basin in texas, in which 87% of unconventional wells are drilled in areas of high or extremely high water stress. as these case studies indicate, many governing systems may be incapable, or unwilling, to incorporate these impacts into regulations and permitting processes. for instance, china, having set aggressive goals for shale gas development, has been secretive about the volumes of water used and the related environmental impacts. likewise, ukraine sought to develop unconventional oil and gas resources as a way to reduce russia’s control over it, but environmental impacts and a russia-backed civil war have held ukraine back. by destabilizing potential rivals, russia has successfully used its energy resources as an economic and political tool. in stark contrast, the united kingdom’s new charging system places a higher price on water from high risk/low resilience sources and a lower price on water from abundant sources. but in texas, groundwater is personal property that operators can buy directly from the owner, with few regulatory obstacles, complicating governance attempts. indigenous groups in many of the countries studied have felt the impact of the industry’s water practices and have had varying degrees of success asserting their rights. most notably, the standing rock sioux tribe’s protest played a significant role in opposing the dakota access pipeline in canada and the united states, garnering popular support. and, in canada, first nations groups have had limited success challenging fracking when companies failed to consult and accommodate the groups, as required by procedural rules. sadly, the khanty people in russia altered their millennia-old cultures, tradition, and ways of life in response to energy industry obstructing and polluting watercourses in their lands. dealing with wastewater produced during fracking raises unique concerns, the authors observe. water used in the fracking process contains chemicals and proppants (sand or ceramic beads used to prop open fractures in rock to allow oil and gas to escape the formation), while produced water forced from the geologic formations being fractured is often contaminated with naturally occurring dissolved solids, heavy metals, and radioactexas water journal, volume 11, number 1 63book review: regulating water security in unconventional oil and gas ning, including sustainability; national energy independence and conflicts between national and super-national governance; and funding regulation and enforcement. for instance, energy development applicants in south africa must consider sustainable development principles, including “the integration of social, economic, and environmental factors into planning, implementation, and decision making so as to ensure that mineral and petroleum resources development serves present and future generations.” on the other hand, argentina pursued energy independence through fracking before establishing any policy to prevent negative environmental or social impacts. and poland, a european union member country, has ignored european union directives to require that operators conduct strategic environmental assessments or environmental impact assessments to obtain license to drill well less than 5,000 meters deep. dealing with a lack of funding and transparency, mexico has struggled to enforce regulations on the industry, prompting civil campaigns by indigenous groups. meanwhile, indigenous groups, local authorities, and environmental groups have had success in brazilian courts and commonly bring civil claims opposing oil and gas operators trying to secure concessions and licenses. the book’s editors conclude by suggesting several steps and research to address these issues. they emphasize that the human right to water and sanitation recognized by some countries and international bodies like the united nations must become “hard law” everywhere. there must be regulation on water use in unconventional oil and gas production that considers the related nature of the water-energy nexus as a crucial part of water security. environmental regulations must not only be consistent with science but also should provide a fail-safe against environmental damage, incorporating sustainability principles and precautions to prevent the damage all together. the silo mentality should be rejected in favor of an approach to water management in which regulation is the product of collaboration between institutions, industry sectors, and communities like indigenous and environmental groups. regulating water security for unconventional oil and gas articulates important lessons for managing how freshwater resources are used in the hydraulic fracturing process. perhaps more importantly, it uses fracking as a lens through which to see how interconnected humans are to the water, energy, and environment that sustains us—and how critical it is that we manage those resources in a way that does not value one resource without considering the impact to others. tive materials. because treating this water is so expensive, operators most commonly inject these fluids back into the ground into non-producing formations, where geology and state regulations permit; where it does not, it may be discharged into surface waters or (least often) onto land. the epa in 2016 noted that all these disposal methods frequently or severely degrade water. given that injection wells and surface disposal may trigger both state and federal regulations, the regulatory process can be complex. induced seismicity has also been connected with wastewater injection (in the united states) and with the fracking process itself (canada, united kingdom, and the netherlands), prompting additional government action. in response to studies connecting a sudden rise in earthquake activity in oklahoma and texas, oklahoma has seriously limited fracking-related injections in certain areas with increased seismicity. in the united kingdom, operations near seismic events were suspended, while the netherlands plans to cease production from fracking entirely by 2030. for these reasons, injection well disposal has been controversial. on a promising note, regulations, geology, and environmental concerns have prompted operators in states like pennsylvania and texas to ramp up treatment, reuse, and recycling of this wastewater—water otherwise permanently removed from the hydrologic cycle. similarly, in australia, the use of water and disposal of produced water resulting from the production of coal seam gas has been met with resistance, with queensland adopting an adaptive management approach, new south wales enacting a five-year moratorium from 2011 to 2016, and victoria permanent banning the process. the groundwater contamination potential associated with fracturing presents equally complex scientific and legal problems. because fracturing operations occur so deeply below the groundwater-saturated strata, toxic fluids from the fractures themselves are unlikely to directly reach aquifers. this makes it difficult for a plaintiff in a civil case for contamination to prove that fracturing operations legally caused the water contamination alleged—a threshold question before the operator can be held liable. and, even if pathways could be found, often there is no baseline groundwater sample to show that the contamination did not pre-date drilling operations. it is also a challenge to prove that a particular contaminant was introduced by a specific fracking operation because trade secret law is often used to conceal what chemicals are used. apart from fracturing fluids, however, it is possible that naturally occurring contaminants like “methane could migrate up into aquifers from the fractured shale seam through pre-existing, natural fissures in the overlying rock, or even through fissures created or enlarged by fracturing.” on a macro scale, the book highlights several key issues that—taken with those above—influence regulatory planintegration of the community collaborative rain, hail, and snow network (cocorahs) observations into the west gulf river forecast center operations texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university volume 9, number 1 2018 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. trinity university cover photo: sunrise over coastal bend bays & esturaries program land. © 2017 john reuthinger. see winning photos at wildlifeinfocus.org. http://texaswaterjournal.org http://wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, september 21, 2018 pages 96-107 abstract: this article will introduce the community collaborative rain, hail and snow (cocorahs) network and illustrate its integration into the daily operations at the national weather service west gulf river forecast center (wgrfc). an example will be shown on how the data were used during a specific flood event and will illustrate our extensive use of this data during hurricane harvey. the benefits of this network will be discussed. the network provides the wgrfc a source of rain gauge data where other sources of rainfall data are sparse and allows for verification of radar-based precipitation estimates. members of cocorahs provide observations that are vital in assisting the wgrfc with flood forecasting operations. information on joining this important network is presented in this article. keywords: rainfall, observers, floods integration of the community collaborative rain, hail, and snow network (cocorahs) observations into the west gulf river forecast center operations 1hydrometeorologist, nws west gulf river forecast center *corresponding author: greg.story@noaa.gov texas water journal, volume 9, number 1 gregory j. story1* citation: story gj. 2018. integration of the community collaborative rain, hail, and snow network (cocorahs) observations into the west gulf river forecast center operations. texas water journal. 9(1):96-107. available from: https://doi.org/10.21423/twj.v9i1.7071. © 2018 gregory j. story. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v9i1.7071 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 9, number 1 97integration of the cocorahs observations into the west gulf river forecast center terms used in paper acronyms descriptive name cocorahs community collaborative rain, hail and snow hrap hydrologic rainfall analysis project mpe multisensor precipitation estimate nsf national science foundation noaa national oceanic and atmospheric administration nws national weather service rfc river forecast center utc coordinated universal time usgs u.s. geological survey wsr weather service radar wgrfc west gulf river forecast center introduction in story (2016), texas water journal readers were introduced to the mission of the hydrologic program of the national weather service (nws). the nws west gulf river forecast center (wgrfc), in cooperation with numerous federal, state, and local government entities, uses the latest science and technology to provide timely and accurate river forecasts for most of the river drainages in texas in an effort to protect life and property. river response and flood potential often depend on the magnitude of each rainfall event. prior to real-time weather tracking systems, the river forecast centers (rfcs) were faced with using daily rainfall totals from sparse sources, such as airport rain gauges, automated river rain gauges, and nws co-operative observers. due to the limited spatial distribution of the gauges, often the most intense rainfall amounts would be missed. this lack of information limited the rfcs’ ability to provide real-time or near-real-time flood forecasts, often resulting in the river forecast crests being too low and the timing of those crests being late. since the advent of the weather service radar-1988 doppler (wsr-88d) radars in the mid-1990s, forecasters have been able to receive precipitation estimates each hour. while these estimates give much improved spatial and temporal resolution, the actual amounts of rainfall can be in considerable error. therefore, dependable rainfall observations from gauges are still necessary. a rainfall network began 20 years ago that helps determine the accuracy of radar-based precipitation estimates. this is the community collaborative rain, hail and snow (cocorahs) network. what is cocorahs? cocorahs is a non-profit, community-based network of volunteers of all ages and backgrounds who work together to measure and map precipitation (rain, hail and snow). cocorahs is now in all 50 states, puerto rico and the u.s. virgin islands, the bahamas, and canada. the network originated with the colorado climate center at colorado state university in 1998, inspired in part by the fort collins flood the prior year (reges et al. 2016). since the beginning of this network, the wgrfc has seen the benefits of this precipitation data (as the wgrfc has river forecast responsibility in southern colorado). in the years since, more than 6,100 texans have joined cocorahs, and more than 62,000 volunteers have joined nationwide (cocorahs website 2018). while many of these observers have moved, passed on, or lost interest over time, the wgrfc receives around 1,000 cocorahs observervations texas water journal, volume 9, number 1 integration of the cocorahs observations into the west gulf river forecast center98 cocorahs observations at wgrfc hydrometeorologists at wgrfc continuously monitor rainfall over their area of responsibility. as stated in story (2016), the nws uses rainfall estimates from multiple sources, but primarily from radars, in generating river forecasts. precipitation estimates from the more than 24 wsr-88d radars with observations within the wgrfc area have allowed for better analysis of timing and areal distribution of precipitation. these rainfall estimates are adjusted based on comparisons to rain gauge data from all sources. these “best estimates” are used in nws river forecasts models. now, hundreds of 24-hour cocorahs rainfall reports are available for post-analysis of this best estimate. direct comparisons of the estimates and observer rainfall totals are made shortly after 1200 coordinated universal time (utc) (7 am central daylight time) each morning. these reports allow wgrfc’s hydrometeorologists to determine areas where the radar-based estimates may be too low or too high. forecasters can adjust estimates in specific hours to reproduce a 24-hour estimate that is more consistent with 24-hour gauge reports. the goal is to achieve a “general” level of acceptable error in the estimates. computations are performed that show the correlation coefficient and percent bias of radar estimates, which vary by time and location. the goal is to modify the estimates to achieve minimum correlation coefficients (r) of 0.85 (an arbitrary in-house goal). originally, most initial estimates are biased low (e.g. the 24-hour gauge reports are higher) and frequently have poor correlation. when initial radar-based estimates are linearly adjusted, which are spatially variable, the inherent error of most estimates is improved to the desired correlation (r > 0.85). removal of this bias is crucial to improve flood forecasts. if these biases are not mitigated, a false identification of a flood wave that is too low might occur over time. an example of the wgrfc gauge check program is shown in figure 1. there are two types of cocorahs reports used at the wgrfc. first, cocorahs spotters can submit intense rainfall reports whenever the situation warrants. these reports are invaluable to forecasters, so much so that we have these reports trigger an “alarm” on our nws workstations. any observer can make a significant weather report. an example of the form an observer fills out on the cocorahs website is shown in figure 2. an example of an intense rainfall report from hurricane harvey is shown in figure 3. such reports are often a preemptive warning that rainfall may be occurring or even exceeding remotely sensed data from radar. it also allows wgrfc forecasters to adjust hourly estimates in near real time, improving flood forecasts. per day. volunteers agree to take precipitation measurements and are asked to report even on days when no precipitation has occurred. we hope to receive rain reports from as many locations as possible. these precipitation reports are entered either through the cocorahs website (www.cocorahs.org) or through an application on a mobile smart phone. the data are then recorded in a central archive at cocorahs headquarters and made available to the public in near-real time on the cocorahs website. the data are displayed and organized for many end users to analyze daily, with purposes ranging from water resource analysis and severe storm warnings to neighbors comparing how much rain fell in their backyards. cocorahs is used by a wide variety of organizations and individuals. aside from the nws, meteorologists, hydrologists, and emergency managers routinely use this resource. additionally, cocorahs data benefit city utilities (for water supply, water conservation, or stormwater), insurance adjusters, agriculture, engineers, mosquito control personnel, ranchers and farmers, outdoor and recreation interests, teachers, students, and neighbors in the community. cocorahs has several goals: 1) to provide accurate high-quality precipitation data on a timely basis; 2) to increase the density of precipitation data available by encouraging volunteer weather observing; 3) to encourage citizens to have fun participating in meteorological science and heightening their awareness about weather; and 4) to provide enrichment activities in water and weather resources for teachers, educators and the community at-large. for its detailed mission statement, visit the link in the reference section (cocorahs website 2018). most importantly, this is a community project. the only requirements are that one have an enthusiasm for watching and reporting weather conditions, a desire to learn more about how weather can affect and impact our lives, and a good place to measure rainfall. by providing daily observations, one can help to fill in a piece of the weather puzzle that affects many across texas. by using low-cost measurement tools, stressing training and education, and using an interactive website, the network’s aim is to provide the highest quality data for natural resource, education and research applications, which can greatly aid flood forecasts and radar corrections. both the national oceanic and atmospheric administration (noaa) and the national science foundation (nsf) are primary sponsors of cocorahs. other organizations have contributed financially and/or with supplies and equipment. the list of sponsors continues to grow. many other organizations and individuals have contributed time and resources to help keep the network running. http://www.cocorahs.org texas water journal, volume 9, number 1 99integration of the cocorahs observations into the west gulf river forecast center the radar-based estimates. this allowed us to match the cocorahs amount in real time. this led to more runoff being calculated within our hydrologic model and produced a forecast hydrograph with higher runoff volumes than was originally produced. a small flood wave occurred on chambers creek that may have gone unforecasted had the cocorahs gauge not shown the larger rainfall totals. all 24-hour rainfall observations received from all sources, including the cocorahs observations, are available each morning around 10 am at: https://forecast.weather.gov/product.php?site=nws&product=hyd&issuedby=fwr this list can be used to compare all the rainfall readings in the wgrfc region. second, the 24-hour cocorahs rainfall measurements are ingested at the wgrfc through the morning, which are then compared to radar-based estimates (along with rain gauge observations from other sources). the cocorahs rain gauge data are considered to be ground truth and one of the most readily available best data sources for radar corrections. figure 4 shows an example from 2012 when cocorahs reports from ellis county helped improve a flood forecast: in this example, the cocorahs observer, who was located 0.6 of a mile west-southwest of maypearl, gave us a rainfall reading of 4.51 inches. our initial “best estimate” for that location was 2.60 inches, or about ½ the amount that fell. we went back to the hours it rained in this location and increased figure 1. the gauge check program used at wgrfc. rain gauge values for the 24-hour period ending as 12 utc (x-axis) are plotted against the associated multisensor precipitation estimate (mpe) best estimate of precipitation (y-axis) at the location of that gauge. values above the diagonal black line show an mpe overestimate, while values below indicate an underestimate. colored lines show the calculation of mpe versus gauges for each radar-based field within mpe, with the red line being the final best estimate. the observations show a good correlation (r = 0.927) to radar estimates but is biased low by 6.2%. the mpe radar data are linearly adjusted to best match gauge data. https://forecast.weather.gov/product.php?site=nws&product=hyd&issuedby=fwr https://forecast.weather.gov/product.php?site=nws&product=hyd&issuedby=fwr texas water journal, volume 9, number 1 integration of the cocorahs observations into the west gulf river forecast center100 figure 2. the significant weather report form for cocorahs observers. this form can be used to report rainfall or snowfall of a short duration. figure 3. an intense weather report from a cocorahs observer during hurricane harvey reporting over 15 inches of precipitation and 0.28 inches in the last hour as received on a wgrfc text workstation. texas water journal, volume 9, number 1 101integration of the cocorahs observations into the west gulf river forecast center examples from hurricane harvey hurricane harvey was the first major hurricane to make landfall in the united states since wilma in 2005. the storm produced catastrophic impacts over southeast texas and southwest louisiana. harvey made landfall near rockport, texas as a category 4 hurricane. in a four-day period, many areas received more than 40 inches of rain as the cyclone meandered over southeast texas and adjacent waters, with peak accumulations of over 60 inches (blake and zelinsky 2018). hurricane harvey produced the most rain on record for a tropical storm or other weather event in the contiguous united states. for more information, see the nws service assessment on harvey (nws 2018), and see a scientific investigation report from the u.s. geological survey (usgs 2018). rainfall estimation from tropical systems is quite challenging. all sources of remote sensing have limitations during excessive rains and high winds. for an explanation of the reasons for these challenges, see story (2012). figure 5 shows hurricane harvey on the evening of august 25, 2017. in the 24-hour period ending at 12 utc on august 26, heavy rain from harvey fell as it moved over parts of south central and southeast texas. figure 6 shows the cocorahs reports, which were received just after 12 utc. the initial radar estimates ranged from 4 to 8 inches. however, the cocorahs 24-hour readings had several contributors reporting 8.00 to 9.60 inches. the wgrfc initial estimates were too low, and these observations led us to increase final estimates. the final rainfall estimate from wgrfc software is shown in figure 7: the next day, for the 24-hour period ending at 12 utc on august 27, we saw even larger underestimations. we initially estimated 8 to 13 inches of rain over southeast texas, but the cocorahs reports were much higher. the cocorahs reports are shown in figure 8 from day 2 of hurricane harvey and figure 9 shows this graphically. figure 4. (left) location of cocorahs gauge where initial underestimation was determined. gauge values match the color scale. (right) mpe final precipitation analysis with cocorahs data overlaid after an adjustment was made to the 24-hour field. the arrow indicates where estimates were increased near maypearl, texas. the goal is to have the color of the mpe precipitation field match the color of the gauge reading. texas water journal, volume 9, number 1 integration of the cocorahs observations into the west gulf river forecast center102 figure 6. this table shows the ten highest august 26 cocorahs reports. alongside the gauge id is the observed amount and our initial mpe estimate for that location. figure 5. hurricane harvey at landfall as seen from goes 16 satellite. the eye of harvey is making landfall. the bright red colors around the eye indicate the eye wall and can be indicative of high rainfall rates. texas water journal, volume 9, number 1 103integration of the cocorahs observations into the west gulf river forecast center again, since we were too low in our initial estimates, we increased them. this meant that increased flood volumes were forecasted. that resulted in many crest projections exceeding the major category (where extensive inundation of structures and roads occurs, with significant evacuations of people and property) or record category (where a river at a set forecast point had never been higher historically). figure 10 shows our final estimate field from mpe after this increase. figure 7. wgrfc best estimate of rainfall from the first day of hurricane harvey, 26 august 2017. figure 8. this table shows the 10 highest cocorahs reports ending 12 utc 27 august 2017. the data indicate five readings in excess of 19.25 inches that correspond to initial mpe estimates of just under 13 inches over parts of harris and galveston counties in southeast texas.1 1the reason for the 12.90” matching so many gauges is two-fold. all have to do with the multisensor approach in mpe itself. mpe uses the hydrologic rainfall analysis project (hrap) grid array. one hrap grid is roughly 4 square kilometers. mpe arrives at just one value for an entire grid. you can have multiple cocorahs gauge readings located in the same hrap grid. that happens to be the case with a few of the gauges in figure 8. also, the hrap grid value is derived from an hourly rain gauge if there is an hourly gauge located in that grid. gauge values in the multisensor analyses actually have a sphere of influence, which is larger than one grid size, thus gauge readings can bleed over into other surrounding grids. therefore, multiple grids can have the same value in a general location. texas water journal, volume 9, number 1 integration of the cocorahs observations into the west gulf river forecast center104 figure 9. this was the initial estimate of rainfall from day two of hurricane harvey from wgrfc multisensor software. figure 10. the final best estimate field from 12 utc 27 august 2017. note the sizable increase in the areal coverage of the heaviest rainfall over the initial estimates in figure 9. texas water journal, volume 9, number 1 105integration of the cocorahs observations into the west gulf river forecast center based on the cocorahs observations, the initial mpe estimates were too low for the remainder of the harvey rain event. the final daily rainfall for harvey from august 28–31 are shown in figure 11. in the end, approximately 90% (60 out of the 67) of nws river forecast locations in southeast texas reached flood stage. approximately 69% (46 out of the 67) reached major flood stage and approximately 46% (31 out of the 67) set flood records. the nws issued more than 300 flood-related warnings at official river forecast points where usgs stream gauges measure flow volumes, out of 330 in the wgrfc area of responsibility (nws 2018). the cocorahs observations helped improve the nws lead time on the magnitude of flooding. with initial estimates biased low, adjustments were made in real time to radar precipitation totals. these cocorahs readings contribute greatly to the nws wgrfc’s mission of saving lives and property from floods here in texas. quite often the majority of the highest ten rainfall readings in the state on any given day come from cocorahs observers. figure 12 shows the gauge-corrected totals using cocorahs and other data sources that gave the wgrfc its best estimate of rainfall from hurricane harvey. conclusion cocorahs is a volunteer, community-based organization that always needs more observers. the more reporting observers, the better the chances that the wgrfc can match the magnitude of rainfall. even a daily report of no rainfall is useful information, as the final precipitation estimates that are computed also go into the state and national drought monitor maps each week (see http://droughtmonitor.unl.edu/currentmap.aspx). to become a volunteer, you may follow these simple steps: 1. read through the website and see what the project is about (https://www.cocorahs.org/).the website has information on “how to measure precipitation,” “how to measure snow,” figure 11. final rainfall estimates. (lower right) august 28. the cocorahs rain gauge data showed a maximum of 18.35 inches near katy and a dozen observations in excess of 13.25 inches. the initial maximum mpe estimate was 12.90 inches, thus mpe showed severe underestimation and was adjusted higher. (lower left) august 29. cocorahs rainfall readings showed a maximum rainfall of nearly 15 inches northeast of friendswood, with ten observations in excess of 13 inches. initial mpe rainfall estimates were in excess of 12 inches from south of houston to near beaumont/port arthur, showing the underestimation from radar-based mpe was not quite as severe. (upper right) august 30. cocorahs rainfall readings indicated a maximum rainfall of over 15 inches about 5 miles south of beaumont, with six observations in excess of 10.50 inches. the initial mpe estimates around 12 inches over extreme southeast texas centered on beaumont were too low and were adjusted upward for the final analysis. (upper left) august 31. cocorahs rainfall readings confirmed the heaviest rainfall in excess of 7 inches had shifted into sabine parish, louisiana. the initial mpe estimates were much closer as the rain rates decreased and shifted into western louisiana, thus only limited adjustment upward was necessary for the final analysis. http://droughtmonitor.unl.edu/currentmap.aspx http://droughtmonitor.unl.edu/currentmap.aspx https://www.cocorahs.org/).the texas water journal, volume 9, number 1 integration of the cocorahs observations into the west gulf river forecast center106 and “how to measure hail” as well as information on the equipment used. 2. make sure you have a rain gauge. you may purchase an official rain gauge from the link on the cocorahs website for approximately $31.50 (see www.weatheryourway.com/cocorahs). they are excellent gauges that measure in hundredths of an inch. it is asked that your rain gauge be a 4” diameter all-weather gauge or better. 3. go to our “join cocorahs” web page and sign up (https://www.cocorahs.org/application.aspx). 4. either attend a training session for volunteers in person, or view the “training slide show” found on the cocorahs home page. it is very beneficial to read through the website on-line training materials completely. it is important to know how cocorahs observers make and report their measurements. good training along with careful observing and reporting are very important to the network and the users of the data. 5. contact cocorahs with any questions that you may have. coordinators are available at the state and regional levels as a resource to assist you in getting started. texas coordinator contact information can be found at: https://www.cocorahs. org/content.aspx?page=coord_tx 6. report your data daily on the website (www.cocorahs.org/ login.aspx) or use the cocorahs smart phone application (apple or android). if you are unable to report on the internet, you may obtain cocorahs precipitation measurement forms from cocorahs headquarters (or you may print your own from the website) and mail them. we look forward to receiving many new observers in the future. references blake e, zelinsky d. 2018. hurricane harvey (al092017) 17 august–1 september 2017. national hurricane center tropical cyclone report. https:// www.nhc.noaa.gov/data/tcr/al092017_harvey.pdf cocorahs website. 2018. fort collins (colorado): colorado state university; [accessed august 21, 2018]. https://www. cocorahs.org/ cocorahs mission statement. 2018. fort collins (colorado): colorado state university; [accessed august 21, 2018]. https://www.cocorahs.org/content.aspx?page=mission (nws) national weather service. 2018. service assessment: august/september 2017 hurricane harvey. silver spring (maryland) national oceanic and atmospheric administration, national weather service. https://www.weather. gov/media/publications/assessments/harvey6-18.pdf reges h, doesken n, turner j, newman n, bergantino a, schwalbe z. 2016. cocorahs: the evolution and accomplishments of a volunteer rain gauge network. bulletin of figure 12. total accumulated rainfall from tropical system harvey. note the 62-inch final maximum total near beaumont/port arthur. file:///c:\gjs_backup\texas%20water%20journal%20article\www.weatheryourway.com\cocorahs file:///c:\gjs_backup\texas%20water%20journal%20article\www.weatheryourway.com\cocorahs https://www.cocorahs.org/application.aspx https://www.cocorahs.org/content.aspx?page=coord_tx https://www.cocorahs.org/content.aspx?page=coord_tx http://www.cocorahs.org/ http://www.cocorahs.org/ https://www.nhc.noaa.gov/data/tcr/al092017_harvey.pdf https://www.nhc.noaa.gov/data/tcr/al092017_harvey.pdf https://www.cocorahs.org/ https://www.cocorahs.org/ https://www.cocorahs.org/content.aspx?page=mission https://www.weather.gov/media/publications/assessments/harvey6-18.pdf https://www.weather.gov/media/publications/assessments/harvey6-18.pdf texas water journal, volume 9, number 1 107integration of the cocorahs observations into the west gulf river forecast center the american meteorological society. 97:1831-1846. story g. 2016. an introduction to the nws west gulf river forecast center. texas water journal. 7(1):56-63. https:// journals.tdl.org/twj/index.php/twj/article/view/7036 story g. 2012. chapter 12: estimating precipitation from wsr-88d observations and rain gauge data. in: verdin jp, wardlow bd, anderson mc, editors. remote sensing of drought: innovative monitoring approaches. boca raton (florida): crc press taylor and francis group. p. 281-306. watson km, harwell gr, wallace ds, welborn tl, stengel vg, mcdowell js. 2018. characterization of peak streamflows and flood inundation of selected areas in southeastern texas and southwestern louisiana from the august and september 2017 flood resulting from hurricane harvey. reston (virginia): u.s. geological survey. 44 p. u.s. geological survey scientific investigations report 2018–5070. https://doi.org/10.3133/sir20185070. https://journals.tdl.org/twj/index.php/twj/article/view/7036 https://journals.tdl.org/twj/index.php/twj/article/view/7036 https://doi.org/10.3133/sir20185070. seasonal changes of groundwater quality in the ogallala aquifer texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university volume 9, number 1 2018 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. cover photo: sunrise over coastal bend bays & esturaries program land. ©2017 john reuthinger. see winning photos at wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, june 20, 2018 pages 69–81 abstract: the ogallala aquifer extends beneath eight states in the great plains region of north america. it stretches from texas to south dakota and is among the largest aquifers in the world. in texas, extraction of groundwater, primarily for cropland irrigation, far exceeds recharge resulting in a significant decline of the water table. in the texas high plains, this decline prompted restrictions set by a local water conservation agency in 2009 stating that in 50 years about 50% of the saturated thickness of the ogallala aquifer should be preserved. however, this restriction only addressed the quantity and not the quality of the remaining water. the quality of water extracted from the ogallala aquifer has been observed to change over time, especially over the length of a crop’s growing season. we measured water quality over a three-year period using an electrical conductivity sensor and measured depth to water at 20 locations across five counties in the texas high plains. results show that when wells are actively pumping, water quality can change in complex and unpredictable ways. in some cases, water quality declined and in others water quality improved. this result has prompted us to further investigate the mechanisms involved in observed seasonal water quality changes. keywords: ogallala aquifer, water quality, groundwater, irrigation, conductivity seasonal changes of groundwater quality in the ogallala aquifer 1wind erosion and water conservation research unit, cropping systems research laboratory, usda-ars#, 3810 4th street, lubbock, tx 79415 *corresponding author: robert.lascano@ars.usda.gov #usda-ars is an equal opportunity provider and employer. texas water journal, volume 9, number 1 timothy s. goebel1, john e. stout1 and robert j. lascano1* citation: goebel ts, stout je, lascano rj. 2018. seasonal changes of groundwater quality in the ogallala aquifer. texas water journal. 9(1):69-81. available from: https://doi.org/10.21423/twj.v9i1.7067. © 2018 timothy s. goebel, john e. stout, robert j. lascano. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v9i1.7067 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 9, number 1 seasonal changes of groundwater quality in the ogallala aquifer70 terms used in paper introduction the ogallala aquifer extends across an area of approximately 450,000 square kilometers (km2) (173,746 square miles) and is among the largest aquifers in the world (http://water.usgs.gov/ ogw/aquiferbasics/ext_hpaq.html). this vast aquifer extends across portions of eight states where it is the primary source of irrigation water for various crops, accounting for 27% of the irrigated land in the united states (darton 1898; gollehon and winston 2013). in the southern high plains, the ogallala formation was deposited by ancient rivers that once flowed west to east from the mountains of new mexico. remnant paleo-valleys such as the winkler, simanola, and portales valleys have been identified and mapped by geologists that have studied the area (holliday 1995). these valleys were sequentially abandoned as the pecos valley formed and provided a new path to the rio grande and ultimately to the gulf of mexico. the waters contained within the ogallala sands and gravels deposited by these ancient streams were subsequently covered and preserved by aeolian deposits, such as the blackwater draw formation (robbins 1941). today, the ogallala aquifer is being depleted at a rapid rate. changes in the saturated thickness of an aquifer respond to changes in the balance between recharge and discharge. on the high plains of the llano estacado, the only significant source of recharge is precipitation; however, hydrogeological studies have shown for decades that groundwater withdrawals exceed the amount of recharge by a large margin (cronin 1969; mcguire 2014). thus, despite its critical importance to irrigated agriculture, the ogallala aquifer is being depleted at a rapid rate (dutton et al. 2001; custodio 2002; whitehead 2007; mcguire 2014). depth-to-water measurements obtained each year by the high plains underground water conservation district indicated that the saturated thickness of the aquifer has dropped at an average rate of 0.3 meters (m), or 1 foot, per year since 1985 (mccain 1996; hpwd 2014). during drought conditions, the depletion of the aquifer can accelerate to nearly twice this long-term rate (mullican 2013). while conservation of the quantity of groundwater is important, the quality of the remaining groundwater is equally important (chaudhuri and ale 2014; ledbetter 2014). it has been suggested that the impact of increased salinization of freshwater is a significant threat to global water resources (williams 2001). aqueous salinity is a measure of the dissolved mineral content of water and is reported in units of milligrams per liter (mg/l) total dissolved solids (tds). the quality of short name or acronym descriptive name ars agricultural research service cp center pivot °c degrees celsius ec electrical conductivity km2 square kilometers m meter mg/l milligrams per liter ml milliliter sdi subsurface drip irrigation thp texas high plains tds total dissolved solids usda u.s. department of agriculture µs/cm micro-siemens per centimeter http://water.usgs.gov/ogw/aquiferbasics/ext_hpaq.html http://water.usgs.gov/ogw/aquiferbasics/ext_hpaq.html texas water journal, volume 9, number 1 71seasonal changes of groundwater quality in the ogallala aquifer water produced from the ogallala aquifer generally falls into the category of brackish (1,000–10,000 mg/l tds) (hanor 1994). the dockum aquifer, a second aquifer that underlies the ogallala aquifer, and is categorized as saline, typically has tds values exceeding 10,000 mg/l (hanor 1994). in general, water quality decreases in the lower sections of the saturated thickness of an aquifer (hanor 1994; druhan et al. 2008). this phenomenon is one of the causes of increased salinization of aquifers over time in agricultural regions above the ogallala aquifer, pumping of available groundwater for irrigation creates a situation where this common mechanism for groundwater salinization occurs (druhan et al. 2008). typically, there would be a diffuse mixing layer of variable thickness that would separate areas of higher and lower salinity. pumping of groundwater induces the migration of poorer quality water (such as that in the dockum), and if pumping rates are high enough, the saline water can enter the well’s capture zone resulting in increased salinity of irrigation water (kreitler 1993). while it is commonly accepted that the deeper water in an aquifer is more saline (hanor 1994; druhan et al. 2008), of interest to agricultural producers in the texas high plains (thp) is the quality of the deeper and more saline water and its suitability for irrigation, which would be accessed in the later months of the growing season. on the thp and during the growing season there is a need for irrigation during the dry period from the end of july to early september. irrigation wells are generally running at full capacity to compensate for the lack of rain during this critical period. the objective of this study was to sample the quality of the water in a number of irrigation wells across several counties in the thp during the growing season (1 april to 1 october) (howell et al. 1996; lascano 2000; bordovsky et al. 2012; tawc 2013). we hypothesized that as the cone of depression, caused by water extraction, expanded to deeper depths the water pumped for irrigation would become more saline. this assessment is needed to understand the long-term impact of lower quality water on crop irrigation. methods well sampling water samples were taken from all sites at approximately two-week intervals starting in spring of 2014 and continuing through 2016. when the wells were in operation, water samples were obtained from spigots on wells. if the wells were inactive, then pencil bailers (ecobailer, ecopvc 703, mississauga, ontario, canada1) were used to obtain water samples. 1mention of trade names or commercial products in this publication is solely for the purpose of providing specific information and does not imply recommendation or endorsement by the u.s. department of agriculture. water samples were placed in 60 milliliter (ml) vials (thomas scientific, pre-cleaned clear vial with 0.1 septa cap, 9-0932, swedesboro, new jersey). when the wells were not active, depth-to-water measurements were obtained with an “electric line” water level sensor (solinst, model 102, georgetown, ontario, canada). water samples were then filtered through a 0.2-millimeter filter and tested for ph (mettler toledo, ma235 ph/ion analyzer with inlab 413 ph probe, columbus, ohio) and electrical conductivity (ec) was measured with a conductivity sensor (thermo orion, model 105a with 011050 conductivity cell, waltham, massachusetts). thereafter, remaining water samples were placed in a 20 ml vial (national epa vial kit) and stored at 4 degrees celsius (°c) (39 degrees fahrenheit). site description a total of 20 irrigation wells were selected for sampling. the selected wells spanned five counties of the thp, which from south to north included terry, lubbock, hockley, cochran, and lamb counties (figure 1). permission was obtained from producers to access the irrigation wells at sites shown on the map (figure 2). due to privacy and agreement with the landowners, the specific location of each irrigation well remains figure 1. location of the five counties where study was conducted with respect to the texas border and the underlying ogallala aquifer (courtesy of google earth® using data from the usga national atlas). texas water journal, volume 9, number 1 seasonal changes of groundwater quality in the ogallala aquifer72 county well # general use well depth in meters (feet) irrigation system crops irrigated soil series sampling period lubbock 1 irrigation 51 (167) sdi & cp1 cotton, sorghum & peanuts amarillo nov 2012– sep 2016 2 abandoned 49 (161) terry 1 residential 52 (171) nov 2013– dec 2016 2 residential 50 (164) 3 irrigation 50 (164) cp cotton & peanuts patricia & amarillo 4 irrigation 52 (171) cp cotton & peanuts patricia & amarillo hockley 1 irrigation 46 (151) sdi cotton amarillo & ranco nov 2013– dec 2016 2 irrigation 45 (148) cp cotton amarillo & ranco 3 irrigation 47 (154) cp cotton amarillo & ranco 4 irrigation 76 (249) cp cotton amarillo & ranco 5 irrigation 65 (213) cp cotton amarillo & ranco lamb 1 irrigation 53 (174) sdi cotton, sorghum & wheat amarillo, midessa & olton june 2014– dec 2016 2 irrigation 62 (203) cp cotton, sorghum & wheat amarillo, midessa & olton 3 irrigation 52 (171) cp cotton, sorghum & wheat amarillo, midessa & olton 4 irrigation 51 (167) cp cotton, sorghum & wheat amarillo, midessa & olton cochran 1 storage – fracking n/a patricia & amarillo july 2014– dec 2016 2 irrigation 73 (240) sdi & cp cotton, sorghum & peanuts patricia & amarillo 3 irrigation 76 (249) sdi & cp cotton, sorghum & peanuts patricia & amarillo 4 irrigation 75 (246) sdi & cp cotton, sorghum & peanuts patricia & amarillo 5 irrigation 71 (233) sdi & cp cotton, sorghum & peanuts patricia & amarillo 1subsurface drip irrigation (sdi) and center pivot (cp) irrigation. table 1. general description of the 20 irrigation wells located in five counties of the thp and used for sampling in our study. texas water journal, volume 9, number 1 73seasonal changes of groundwater quality in the ogallala aquifer confidential. a general description of the irrigation wells used in our study is provided in table 1. lubbock county two wells were located in lubbock county separated by approximately 100 m (328 feet) (figure 2). one well is actively used for irrigation while the other is an abandoned well that was converted to an observation well. the well that is actively used for crop irrigation is located at the u.s. department of agriculture (usda) agricultural research service (ars) plant stress and water conservation laboratory and is used to irrigate several different crops including cotton (gossypium hirsutum l.), sorghum (sorghum bicolor l.), and peanuts (arachis hypogaea l.) using subsurface drip irrigation (sdi) as well as a two-span center pivot (cp) irrigation system. the soil type is classified as amarillo soil series (fine-loamy, mixed, thermic aridic paleustalf ). these wells were part of our initial assessment and they have been sampled since november 2012. terry county four irrigation wells were selected in terry county (figure 2). two of these wells are for residential use only and were permanently in operation while the other two were used to irrigate cotton and peanuts using cp irrigation. the soil types are patricia (fine-loamy, mixed, superactive, thermic aridic paleustalf ) and amarillo loamy fine sands. these wells were sampled starting in november 2013. hockley county we sampled five irrigation wells in hockley county (figure 2). all of these wells were used to irrigate a cotton crop. one well supplied water to a sdi and the other four fed into cp irrigation systems. the soil types being irrigated were amarillo fine sandy loam and ranco (very-fine, smectitic, thermic ustic epiaquerts) clay. these wells were sampled starting in november 2013. lamb county four irrigation wells were sampled in lamb county (figure 2). all of these wells were used for irrigation of crops including cotton, sorghum, and winter wheat (triticum aestivum l.). three wells were used for sdi and one well was used for cp irrigation. the soil types being irrigated were amarillo fine sandy loam, midessa (fine-loamy, mixed, superactive, thermic aridic calciustepts) fine sandy loam, and olton (fine, mixed, superactive, thermic aridic paleustolls) loam. these wells were sampled starting in june 2014. cochran county a total of five irrigation wells were sampled in cochran county (figure 2). these wells are part of a corporate farm that, in addition to using water for agricultural irrigation, was also selling water for oil-field operations, such as hydraulic fracturing. the result was that while most irrigation wells were not in operation during the winter some of the wells were operational to provide water to a storage tank (~75,000 liters, or ~19,800 gallons) until it was transported off site. the first irrigation well on this site was taken from a valve on the above-mentioned storage tank. the rest of the irrigation wells fed both cp as well as sdi systems. the irrigated crops are primarily cotton, sorghum, and peanuts. the surface soil types in this area include patricia and amarillo loamy fine sands. these wells were sampled starting in july 2014. figure 2. location of 20 irrigation wells sampled in terry, hockley, lubbock, cochran, and lamb counties in the texas high plains. (from: esri®arcmap™10.2.0.3348). texas water journal, volume 9, number 1 seasonal changes of groundwater quality in the ogallala aquifer74 results and discussion lubbock county the initial phase of our investigation focused on the quality of irrigation water within two wells located at the plant stress and water conservation laboratory in lubbock county (figure 2). during the first two years, seasonal changes in ec (peak to trough) was as high as 30% (figure 3a), and it was this unexpected result that led us to further investigate possible seasonal variations of groundwater water quality. we wanted to evaluate if the seasonal change in water quality was common on the high plains of texas or if this was simply a local anomaly. the measured ec of the water in these two irrigation wells was quite different (figure 3a) considering that these wells were spaced only 100 m (328 feet) from each other. the values of ec are shown as a deviation from the mean ec for all sampled wells and this comparison reveals significant seasonal changes figure 3. (a) deviation from the mean value of electrical conductivity (µs/cm) measured throughout the sampling period for four irrigation wells in lubbock county. (b) electrical conductivity (µs/cm) and depth (m) to water table of well #1 in lubbock county. the shaded area denotes the crop-growing season for the year. texas water journal, volume 9, number 1 75seasonal changes of groundwater quality in the ogallala aquifer in ec (figure 3a). the mean ec, over a five-year span, was 1,696 micro-siemens per centimeter (µs/cm) at the active irrigation well identified as lubbock #1 and 606 µs/cm at the inactive observation well (lubbock #2), and this difference of 1,090 µs/cm represents an increase of 180% (table 2). irrigation well #1 showed an increase in ec during the growing season when it was actively pumping (figure 3a). both of the wells trended toward improved water quality, i.e., lower ec over the course of five years, and more noticeably towards the end of each growing seasons. for these particular two irrigation wells, the results suggest that this trend repeats each year; however, the extent of the increase of ec within the growing season and decrease thereafter is not well defined. also shown in figure 3b is the measured depth to the water table for lubbock well #1. note that depth to water increased toward the end of each growing season, e.g., 20 m (66 feet) in 2013 and 2014 and 18 m (59 feet) in 2015 and 2016. in between growing seasons, the depth to water stabilized at around 15 m (49 feet). county well # slope mean electrical conductivity (µs/cm) lubbock 1 –0.57 1,696 2 –1.34 606 terry 1 –0.18 2,037 2 0.15 1,346 3 –0.42 2,788 4 –0.76 2,423 hockley 1 0.71 1,044 2 0.38 1,249 3 0.79 1,329 4 –0.80 1,011 5 0.37 1,167 lamb 1 –0.27 2,884 2 –0.02 3,528 3 –0.41 1,183 4 0.10 1,503 cochran 1 –0.18 1,348 2 –0.01 1,344 3 –0.01 1,767 4 –0.03 1,761 5 –0.04 1,201 table 2. the mean electrical conductivity (µs/cm) of the water sampled at each of the 20 irrigation wells in lubbock, terry, hockley, lamb, and cochran counties in the thp. also given is the calculated average slope over time. texas water journal, volume 9, number 1 seasonal changes of groundwater quality in the ogallala aquifer76 terry county in general, the four sampled irrigation wells in terry county did show some evidence of changes in ec relative to the mean value during the growing season (figure 4a), and three of the four wells tended to show improved water quality, i.e., a negative slope, over the course of the three growing seasons (table 2). in fact, irrigation well terry #2 showed an increase in ec from 1,150 µs/cm to 1,560 µs/cm during the active irrigation period in 2015 (figure 4b). observations made at irrigation well terry #2 showed that in each growing season, when the wells were actively pumped, ec increased by as much as 28%. the depth to the water table for terry #2 showed a value of 41 ± 1 m (135 ± 3.3 feet) over the three growing seasons (figure 4b). figure 4. (a) deviation from the mean value of electrical conductivity (µs/cm) measured throughout the sampling period for four irrigation wells in terry county. (b) electrical conductivity (µs/cm) and depth (m) to water table of well #2 in terry county. the shaded area denotes the crop-growing season for the year. texas water journal, volume 9, number 1 77seasonal changes of groundwater quality in the ogallala aquifer figure 5. (a) deviation from the mean value of electrical conductivity (µs/cm) measured throughout the sampling period for five irrigation wells in hockley county. (b) electrical conductivity (µs/cm) and depth (m) to water table of well #3 in hockley county. the shaded area denotes the crop-growing season for the year. hockley county the ec of the five-sampled irrigation wells over three growing seasons for hockley county is shown in figure 5a. the values of ec are shown as a deviation from the mean ec for all sampled wells, and this comparison reveals significant seasonal changes in ec (figure 5a). four of the five wells trended toward higher ec over the three-year period (table 2). one well, hockley #3, did show some response to active pumping during the growing season where in the off-season the ec would gradually drift to lower values, ultimately changing as much as 17% (peak to trough) (figure 5b). during the growing season, it would quickly become more saline and recover within two to four weeks after the wells were turned off due to rain. the depth-to-water values showed a consistent pattern of increasing about 1 m (3.3 feet) from the start to the end of the irrigation period for each of the growing seasons (figure 5b). texas water journal, volume 9, number 1 seasonal changes of groundwater quality in the ogallala aquifer78 lamb county in lamb county two of the four wells showed a seasonal change in ec while the other two wells did not (figure 6a). in addition, three of the irrigation wells trended to lower values of ec over the three-year period while one well drifted in the opposite direction of increasing ec (table 2). lamb #4 showed a response similar to that of other wells in other counties, i.e., an increase in ec when the wells were actively pumping during the growing season. however, lamb #2 responded to active pumping in the opposite direction (figure 6b). for example, in 2014 ec decreased to 3,200 µs/cm during the irrigation period and increased to about 4,000 µs/cm in the winter. the same trend was measured during the 2015 growing season, with an ec of 3.400 µs/cm during the growing season and increasing to about 3.800 µs/cm thereafter (figure 6b). there was no discernible pattern on the measured values of depth to water (figure 6b). figure 6. (a) deviation from the mean value of electrical conductivity (µs/cm) measured throughout the sampling period for four irrigation wells in lamb county. (b) electrical conductivity (µs/cm) and depth (m) to water table of well #2 in lamb county. the shaded area denotes the crop-growing season for the year. texas water journal, volume 9, number 1 79seasonal changes of groundwater quality in the ogallala aquifer figure 7. (a) deviation from the mean value of electrical conductivity (µs/cm) measured throughout the sampling period for five irrigation wells in cochran county. (b) electrical conductivity (µs/cm) and depth (m) to water table of well #3 in cochran county. the shaded area denotes the crop-growing season for the year. cochran county in cochran county most of the irrigation wells showed small deviations from the mean value of ec, except for cochran well #3 (figure 7a). all of the sampled irrigation wells trended toward improved water quality (lower ec values) over the course of the study (table 2). cochran #3 is used for irrigation and showed variation with the growing season. the largest variation in ec was 17% (figure 7b). to supply water for oil-field operations, the well was often operating outside of the growing season, as shown in figure 7b. of the sampled wells in our study, cochran well #3 had the deepest depth-to-water of 66 m (217 feet) (figure 7b). texas water journal, volume 9, number 1 seasonal changes of groundwater quality in the ogallala aquifer80 conclusions while it is common for water deeper in an aquifer to have a higher salinity, the pressure of irrigation during the growing season has not caused a marked increase in salinity for most of the wells sampled in this study. over the course of the study, the ec for roughly half of the sampled wells increased and the other half decreased. at least one well per county did have a change in water quality when the wells were actively pumped. four of those wells showed an increase in ec while the wells were active, suggesting the possibility that more saline water from the depths of the aquifer were being drawn upward. in one case in lamb county, the water quality actually improved when the well was actively pumped. this specific case does not follow the trend that is normally seen and is likely due to a unique local geologic condition at that location. the results presented here suggest that in the short term, a change in water quality over the growing season does not present a significant challenge to producers in this region. however, some wells are responding to the continued extraction of water from the aquifer, and likely the rest of the wells will begin to show similar trends at some point in the future as the aquifer continues to be depleted and more of the deeper, more saline water is accessed. this study will continue and future attempts will be made to better define possible salinity gradients within our observation wells so that we may ultimately reach a better understanding of possible future water quality conditions. acknowledgments this research was supported in part by the ogallala aquifer program, a consortium between usda-ars, kansas state university, texas a&m agrilife research, texas a&m agrilife extension service, texas tech university, and west texas a&m university. the usda prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual’s income is derived from any public assistance program. references bordovsky jp, porter d, johnson j. 2012. effects of variable in-season irrigation capacity on cotton. annual report. texas a&m agrilife research project. 33 p. project 11-811. chaudhuri s, ale s. 2014. long term (1960–2010) trends in groundwater contamination and salinization in the ogallala aquifer in texas. journal of hydrology. 513:376390. available from: https://doi.org/10.1016/j.jhydrol.2014.03.033. cronin jg. 1969. ground water in the ogallala formation in the southern high plains of texas and new mexico. washington (district of columbia): u.s. department of the interior geological survey. hydrologic atlas 330. custodio e. 2002. aquifer overexploitation: what does it mean? hydrogeology journal. 10(2):254–277. available from: https://doi.org/10.1007/s10040-002-0188-6. darton nh. 1898. underground waters of a portion of southeastern nebraska. govt. print. off. druhan jl, hogan jf, eastoe cj, hibbs bj, hutchinson wr. 2008. hydrogeologic controls on groundwater recharge and salinization: a geochemical analysis of the northern hueco bolson aquifer, texas, usa. hydrogeology journal. 16 (2):281-296. available from: https://doi.org/10.1007/ s10040-007-0222-9. dutton ar, reedy rc, mace re. 2001. saturated thickness in the ogallala aquifer in the panhandle water planning area: simulation of 2000 through 2050 withdrawal projections. final contract report. austin (texas): bureau of economic geology, university of texas at austin. gollehon n, winston b. 2013. groundwater irrigation and water withdrawals: the ogallala aquifer initiative. us department of agriculture-natural resources conservation service. economic series number 1. hanor js. 1994. origin of saline fluids in sedimentary basins. geological society, london, special publications. 78 (1):151-174. available from: doi: 10.1144/gsl. sp.1994.078.01.13. 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[tawc] texas alliance for water conservation. 2013. an integrated approach to water conservation for agriculture in the texas southern high plains. texas alliance for water conservation (tawc) project summary 2005–2012. 30 p. whitehead bp. 2007. investigating depletion of the southern high plains (ogallala) aquifer [thesis]. [mankato (minnesota)]: minnesota state university. williams wd. 2001. anthropogenic salinisation of inland waters. hydrobiologia. 466(1-3):329-337. available from: https://doi.org/10.1023/a:1014598509028. https://doi.org/10.3133/sir20145218 https://doi.org/10.1023/a:1014598509028 water security for texas: a post-secondary education pathway for water workforce readiness texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org volume 9, number 1 2018 issn 2160-5319 editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. trinity university cover photo: sunrise over coastal bend bays & esturaries program land. © 2017 john reuthinger. see winning photos at wildlifeinfocus.org http://wildlifeinfocus.org http://wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, november 19, 2018 pages 120-128 abstract: water and wastewater industry leaders in texas and throughout the united states have expressed concern over high rates of retirement eligibility and difficulties finding and attracting workers ready to fill job openings, especially for work in smaller systems. in late january 2018, the u.s. government accountability office released a report on water workforce readiness and a bill was introduced in the u.s. senate to establish a water infrastructure workforce development program. concern over existing education of workers in water and demographic information projecting future workforce readiness are commonly cited as signaling a coming crisis for the water industry. an alignment of post-secondary training and industry needs is recommended to meet coming workforce employment requirements for texas and the nation. a model post-secondary education pathway for water science and technology is described to support water workforce readiness. keywords: water education, water industry, water workforce, water and wastewater degree, water security 1director and visiting professor, institute for water resources science and technology, texas a&m university–san antonio, one university way, san antonio, tx 78224. 2vice president for research and dean of the graduate school, new mexico state university, las cruces, nm 88003 (formerly special assistant to the president, texas a&m university–corpus christi) 3training manager, infrastructure and safety training, texas a&m engineering extension service, college station, tx 77842 4program coordinator, water resource science, northwest vista college, san antonio, texas 78251 5director, texas water resources institute, and professor, zachry department of civil engineering, texas a&m university, college station, tx 77843 *corresponding author: rudy.rosen@tamusa.edu texas water journal, volume 9, number 1 water security for texas: a post-secondary education pathway for water workforce readiness rudolph a. rosen1* , luis a. cifuentes2, james fischer3, howard marquise4, john c. tracy5 citation: rosen ra, cifuentes la, fischer j, marquise h, tracy jc. 2018. water security for texas: a post-secondary education pathway for water workforce readiness. texas water journal. 9(1):120-128. available from: https://doi.org/10.21423/twj.v9i1.7078. © 2018 rudolph a. rosen, luis a. cifuentes, james fischer, howard marquise, john c. tracy. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v9i1.7078 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing http://orcid.org/0000-0002-8082-8646 texas water journal, volume 9, number 1 121post-secondary education pathway for water workforce readiness terms used in paper acronyms descriptive name awwa american water works association b.a.a.s. bachelor of applied arts and sciences b.s. bachelor of science gao u.s. government accountability office tamu–sa texas a&m university–san antonio tceq texas commission on environmental quality teex texas a&m engineering extension service introduction in late january 2018, two events took place over the course of two days that may shape future education and training opportunities for work in water and wastewater (hereinafter termed “water” with equal weight to water and wastewater sectors) systems and treatment industries in the united states. the u.s. government accountability office (gao) released a report on water workforce readiness (usgao 2018), and a bill was introduced in the u.s. senate to establish a water infrastructure workforce development program (uss 2018). both actions stem from long-standing alarms raised by the water industries about high rates of retirement eligibility and difficulties finding and attracting job-ready workers to fill job openings, especially for work in smaller water systems (kemp-rye 2005; mann and runge 2008; grigg and zenzen 2009; brueck et al. 2010; sfpuc 2012; pcast 2016; awwa 2017). the gao report and senate bill 2346 (s. 2346) describe workforce demographic information commonly cited as evidence of a coming crisis for the water industry. findings in s. 2346 state that the median age of water sector workers is 48 years old, which is six years older than the national median age of workers. in turn, there will be unprecedented workforce replacement needs over the next 10 years because 37% of water and 31% of wastewater workers will retire during that period. the gao report also describes industrywide concern about filling future job openings. the report and proposed legislation demonstrate the need for a well-trained and knowledgeable workforce for proper management of water utilities to prevent water pollution and to ensure safe drinking water and longterm sustainability of public water systems. in particular, both described the vital role of the water workforce in ensuring compliance with the safe drinking water act (42 u.s.c. §§ 300f et seq.) and clean water act (33 u.s.c §§ 1251-1387 et seq.). water industry experts in texas and throughout the united states express alarm about workforce readiness while assessments of the status of the water workforce have varied, multiple industry studies support the findings of the gao and s. 2346 sponsors. for more than a decade the american water works association’s (awwa) annual state of the water industry report, which surveys member opinion nationally, has been drawing attention to water workforce shortages (mann and runge 2008; brueck et al. 2010; awwa 2017). in 2017 the awwa reported that only 1% of water industry survey respondents indicated that the industry was fully prepared to address workforce attraction and retention in the next texas water journal, volume 9, number 1 post-secondary education pathway for water workforce readiness122 combinations of high school and secondary education credits, work experience, completion of licensing-related training, and passing a licensing exam. licensing is required for water operators at public utilities. licensing for wastewater treatment plant and collection system operators varies according to workers’ levels of knowledge, experience, and education (table 1). options for licensing water system operators start with a minimum base of education, work experience, and training requirements for a class d license, increasing levels of competency in water distribution, groundwater, and surface water for classes b and c operators, and a combination of all for class a water operators (table 2). few efforts described by the water industry focus on creating pathways to training by higher education institutions that are equipped to prepare the future workforce with job-relevant workforce-ready training, plus a degree that will enable longterm professional growth into managerial positions. industry-level training delivers licenses required for employment in many water jobs and provides an excellent and highly applied complement to degree granting programs, but it does not equip the future workforce for today’s emerging requirements for a bachelor’s degree for basic employment as a manager. nor does industry training alone provide a means for employment in a company where a university degree is basic entry-level criteria for any significant position or help attract people to a water career who are interested in obtaining a future competitive edge by having broader training, including in subject areas such as computer science, policy, engineering, business, or other studies that may help expand future job opportunities. public faith in water management institutions fell in the aftermath of publicity surrounding impacts to public health from harmful drinking water supplied to residents of flint, michigan (heard-garris et al. 2017). among results has been a heightened recognition of a need for education and workforce development in water treatment (fwatf 2016). post-secondary education degrees for water workers may become essential for utilities and water providers worried about liability for proper water and wastewater treatment and where there are significant water security concerns. the gao report and s. 2346 suggest possible pathways. for example, to fund the need for enhanced water workforce planning and training, s. 2346 would authorize a competitive grants program for infrastructure workforce development. the grants program would be managed by the administrator of the u.s. environmental protection agency and the secretary of the army. should s. 2346 pass and appropriations be provided by the u.s. congress, many education initiatives would be started or enhanced. fortunately, nearly all of the recommendations in the proposed bill are being used to some degree in various locations already. such initiatives include internships, apprenticeships, post-secondary bridge programs, and collabofive years (awwa 2017), the same percentage reported each year since 2014 (awwa 2014, 2015, 2016). the awwa also ranked major issues facing the industry during these years, with the aging workforce and talent attraction and retention ranked as the fifth overall most important issue facing the industry in 2013 (awwa 2013). one comprehensive study supported by the awwa indicated retirement eligibility may be as high as 50% of the entire workforce within 10 years, with an additional potential 45% increase in recruitment of water workers needed due to new regulations, infrastructure growth, security challenges, and customer demand (brueck et al. 2010). there are about 478,700 workers in the combined water and wastewater utilities sector, with about 55% estimated to be facility operators, according to references used by the gao. the awwa concluded in its 2015 report that the water industry is continuously facing difficulty recruiting, training, and retaining these skilled employees, especially for small systems (awwa 2015). texas water experts similarly identified a coming crisis in the texas water workforce at a series of industrywide planning forums exploring key future water security issues in 2015 and 2016 (mohtar and rosen 2015; rosen 2017; rosen et al. 2017). participants expressed expert opinions and recalled past conversations and discussions from earlier industry meetings. they reiterated concerns about a coming wave of retirements and attrition, accompanied by inadequate recruitment to the water workforce and identified another major issue: the general failure of post-secondary educational institutions to supply workforce-ready graduates for texas’ evolving urban and rural water sectors. participants at the forums submitted a series of proposals as solutions, focusing largely on reversing the failure of existing post-secondary educational institutions to meet water industry demand for graduates with job-ready training. water workforce education industry reports, planning documents, and conference discussions confirm that there is concern about education and recruitment of the future water workforce in many states (sfpuc 2012; pcast 2016) and even in canada (yessie 2012). impacts on water security due to failure of our educational institutions to respond to industry workforce needs will be felt nationwide and beyond, not just in texas. in general, the most prominent recommendations in industry publications for enhancing recruitment of water workers include mentoring, internships, and increased access to industry training programs. it has been industry-driven training, focused on regulatory licensing and certification requirements, which has been the traditional mainstay for educating the water workforce. occupational licensing and education requirements for workers in the water industries in texas are the responsibility of the texas commission on environmental quality (tceq). current requirements for licensing include various texas water journal, volume 9, number 1 123post-secondary education pathway for water workforce readiness table 1. occupational licensing education, work experience, and training requirements for wastewater treatment plant and collection system operators. from texas commission on environmental quality occupational licensing requirements webpage accessed october 16, 2018: https://www.tceq.texas.gov/licensing/licenses/wwlic/#require1 https://www.tceq.texas.gov/licensing/licenses/wwlic/#require1 texas water journal, volume 9, number 1 post-secondary education pathway for water workforce readiness124 table 2. occupational licensing education, work experience, and training requirements for water system operators. from texas commission on environmental quality occupational licensing requirements webpage accessed october 16, 2018: https://www.tceq.texas.gov/licensing/licenses/waterlic https://www.tceq.texas.gov/licensing/licenses/waterlic texas water journal, volume 9, number 1 125post-secondary education pathway for water workforce readiness rations with trade organizations, community colleges, universities, federal programs, and other training initiatives. others include kindergarten through 12th grade and young adult education about the role of water and wastewater systems in communities, development of appropriate water curricula, and learning laboratories. finally, s. 2346 would fund leadership development, education, and mentoring to prepare water utility workers for higher level professional, supervisory, and managerial positions. it is this last category of recommendation in s. 2346 that creates a means for water workers to obtain a bachelor’s degree. this offers the greatest departure from traditional approaches to water worker training and recruitment. it also promotes education that helps prepare the future workforce to use new technologies, meet basic standards of education for professional advancement, and reduce potential adverse public exposure and liability should public health or environmental pollution problems occur. and finally, as treatment technologies advance, greater levels of education through industry training plus a university degree will become more often a requirement for job applicants, especially at large utilities. the gao found considerable variation in the results of past efforts at workforce planning and development at large versus small water utilities when implementing past recruitment and retention initiatives. in response, the gao describes recommendations to enhance security of the u.s. water supplies by providing new oversight on workforce matters, including recommendations for enhanced workforce planning and training, during inspections of water systems for compliance monitoring of drinking water and wastewater facilities. in particular, the gao was concerned about violations of pollution discharge and drinking water rules, and impacts to the environment and public health. post-secondary training and industry need must align participants at the texas water forums stated that future education of students seeking employment in water and wastewater management should be different than that generally available through a typical civil or environmental engineering degree program. they believed that water workforce training and education need to be responsive to industry requirements for workers. industry need is driven by regulatory requirement changes, advancing technologies, and rapid incorporation of new technologies into facility design, operation, and renovation. however, participants saw little or no rapid alignment of university curricula, tceq licensing requirements, industry training opportunities, changing technologies, and regulation changes. they noted this lack of alignment with changing technologies and regulations exists despite there is little likelihood that yesterday’s curricula, designed for an earlier time, will provide the best training for the jobs of today and tomorrow. further, as a person moves forward in their career, while they may start on the operational side of the business, many workers eventually end up on the planning and management side of the business. participants at the texas water forums and industry workforce studies (kemp-rye 2005; brueck et al. 2010) also pointed out a need to recognize that and account for differently sized communities have different kinds and scales of water facilities, different needs for water workers, and different training requirements for the water workforce. there will be greater demand for additional skills in a larger versus smaller community as water workers advance in their careers. participants at the texas forums also advised that the water workforce should be reflective of the society being served. educational models should support educating people for jobs in local water systems (grigg and zenzen 2009; usgao 2018; uss 2018). water forum participants advised this will help ensure the water workforce meets the technical needs of stakeholders for services, as well as the social, economic, and political realities of the communities served. regional universities, in collaboration with community colleges and extension programs, can be effective in delivering such education, especially if students are presented an attractive education pathway to obtain a degree and training required to enter the workforce. changing post-secondary education models university educational models are not ones that bend easily to disruptive change. the current trend in higher education is for universities to become as much alike as possible. thus, higher education has created an environment that cannot adapt their models quickly enough to respond to new innovative technologies and resulting changes in workforce needs. at present, few universities strive to develop graduates with practical operational training versus theoretical training. training for work in water is among the casualties. the challenge of change is magnified by a growing separation between what industry needs as technology advances and what is being taught to students. this is greater in higher education than at technical training institutes. current incentives that are forcing universities to focus on theoretical training and become as much alike as possible must be reversed. incentives should be made available to universities that choose to equip graduates with practical operational training that truly makes them ready for today’s jobs. administrative, leadership, and funding models need to change to enable such disruption of current practice. the very definition of career path through higher education may need to evolve to texas water journal, volume 9, number 1 post-secondary education pathway for water workforce readiness126 ing educational requirements upward. this nationwide trend is expected to continue and possibly accelerate in the near term. in addition, significant job advancement for existing members of the water industry workforce will require college-level degrees due to increases in minimum requirements to hold positions in the water industry. as this trend matures, universities need to better position degree programs in texas to support water industry professionals who will increasingly be required to obtain advanced-level training or a university degree if they wish to progress within their organizations. the new educational model must use existing training programs at all levels and new distance learning options, to create an educational pathway for high school graduates and practicing water industry professionals to obtain a job-relevant b.s. or b.a.a.s. degree. this model must also be generic for use by any community college and regional university in combination with industry, university extension, and government training programs. this model is based on discussion and recommendations from water experts documented in two texas water forums (mohtar and rosen 2015; rosen 2017; rosen et al. 2017) and our specific experience designing an education pathway for students to obtain a b.a.a.s. degree in water resources science and technology at tamu–sa. northwest vista college, a community college in the alamo community college district, and the texas a&m engineering extension service (teex) cooperated with tamu–sa in development of the b.a.a.s. degree program. figure 1 displays a flow diagram of a model education pathway providing multiple ways a high school graduate or practicing professional can combine progress to completion of a b.s. or b.a.a.s. degree in water science and technology. this model includes an option for a 2+2 degree, with the first two years of academic work completed at a community college and the last two years at a four-year degree granting regional university. industry professionals who have completed certifications and training through industry, government, or university extension programs, such as those available through teex, will be able to earn competency-based credit toward a degree at a participating community college or university. internships or work-study arrangements in water-related industries will be compulsory for completion of degree requirements for all students. an advisory board consisting of relevant water industry professionals drawn from local sources should guide the overall thrust of the degree curriculum at each participating community college and university, as well as support student internship opportunities. features of the education pathway for beginning students and practicing professionals follow: • beginning students who have completed a high school degree have several options. they can complete the general texas state education core curriculum at an instimake it possible to address future workforce needs in a way that will meet new technology and related workforce requirements. because university curricula are tied to accreditation agencies, these agencies will also need to adapt to enable universities to meet new technology-driven workforce demands in a timely fashion. it remains questionable, however, if higher education can adapt quickly enough. if not, universities will become even less effective at meeting the educational needs of the real-life water workforce and become still farther removed from practical use of the technology it is in the process of helping create. we offer a post-secondary education initiative in texas based on three pillars: first, the advice of experts at the texas water sector planning forums (mohtar and rosen 2015; rosen 2017; rosen et al. 2017); second, a post-secondary education pathway for water science and technology students recently approved by texas a&m university–san antonio (tamu–sa); and third, our own experiences seeking or developing improved educational curricula and degree programs relevant to educating students at various levels of education and the public about water and creating the future water workforce in texas (e.g., rosen 2014 for middle and high school students). a model post-secondary education pathway for water science and technology we propose a model for an education pathway leading to a bachelor of science (b.s.) or bachelor of applied arts and sciences (b.a.a.s.) degree for students seeking education and related certifications for entry into employment in texas water industries. the education pathway must be available through a combination of distance education options, extension education, mobile laboratories, competency-based education credits, community colleges, and regional universities, which will ensure local access to water science and technology degrees for students throughout texas. this learning model addresses the direction of s. 2346 by providing educational opportunities for a future labor force to help ensure a secure water future for texas that can adapt to changing and emerging needs in the water industries at the rural (small systems) and urban (large systems) levels. the learning model will also help address industry liability issues and regulatory requirements and meet basic educational degree requirements for licensing and longterm employment of graduates. traditionally, entryto technical-level positions in the water treatment industries was available to job seekers having only a high school degree and specialized technical training leading to attainment of certificates of training and licenses issued by regulatory authorities. today, integration of new technologies in water treatment processes, evolving regulatory requirements, liability issues, and general hiring standards in utilities are drivtexas water journal, volume 9, number 1 127post-secondary education pathway for water workforce readiness tution such as the virtual college of texas through online courses, or at any community college in the state, complete an associate’s degree in water science and technology at any of the participating community colleges, and then finish with a b.s. or b.a.a.s. degree in water science and technology at participating universities. we envision a community college or group of community colleges collaborating with a specific regional university for any given region in texas. beginning students can also start and finish their degree program at any participating university. • water industry professionals who have finished high school, have completed industry training courses, and have various certifications can similarly obtain a b.s. or b.a.a.s. degree by a combination of steps: complete the virtual college of texas core curriculum online, take distance education water science and technology courses, obtain competency-based credit toward a degree for training and certifications already completed, obtain an associate’s degree from a community college, and complete coursework toward a b.s. or b.a.a.s. degree from a participating regional university. to provide access to this program statewide and to meet the needs of working students and practicing professionals, all courses that are not laboratory-based or experiential learning-based would be available online in a three-year time-frame, jointly administered by the participating community college and regional university. laboratory experiences would be supported by mobile water laboratories maintained by teex or other training providers that would be made available to participating colleges and universities. this will reduce the need for participating schools to buy or build expensive specialized laboratory equipment and facilities that may only receive use once or twice a year. laboratory experiences would be offered as intensive short courses at participating community colleges or the regional university as needed. short courses and licensing preparatory courses available through teex and industry sources would also be made available to students as needed. while students may or may not receive university credit toward their degree for such courses pending the nature of the course, figure 1. multiple pathway options to obtain a bachelor of science or bachelor of applied arts and sciences in water resources for high school graduates with no previous training and practicing professionals who have completed water industry or teex training, certification courses, and regulatory licensing requirements. (presentation adapted from porter’s five forces diagram by michael porter, licensed under cc by 2.0.) texas water journal, volume 9, number 1 post-secondary education pathway for water workforce readiness128 making these courses available to students will allow them to qualify for necessary certificates and licenses for job readiness. this model relies on application of rigorous science and practical applied industry readiness training. it should be attractive to students seeking a clear path for a position in the water industry and provide long-term professional growth potential. it should also be attractive to practicing water professionals seeking a relevant university degree to enhance their own professional advancement opportunities. references [awwa] american water works association. 2013. 2013 state of the water industry report. denver (colorado): american water works association. [awwa] american water works association. 2014. 2014 state of the water industry report. denver (colorado): american water works association. [awwa] american water works association. 2015. 2015 state of the water industry report. denver (colorado): american water works association. [awwa] american water works association. 2016. 2016 state of the water industry report. denver (colorado): american water works association. [awwa] american water works association. 2017. 2017 state of the water industry report. denver (colorado): american water works association. brueck t, isbell m, o’berry d, brink p. 2010. water sector workforce sustainability initiative. denver (colorado): water research foundation and american water works association. (clean water act) federal water pollution control act amendments of 1972, pub. l. no. 92-500, 86 stat. 816, codified as amended at 33 u.s.c. §§ 1251-1387 et. seq. (commonly referred to as the clean water act). [fwatf] flint water advisory task force. 2016. final report. lansing (michigan): state of michigan. available from: http://www.michigan.gov/documents/snyder/fwatf_ final_report_21march2016_517805_7.pdf grigg n, zenzen m. 2009. the water workforce: recruiting and retaining high-performance employees. denver (colorado): american water works association. heard-garris nj, roche j, carter p, abir m, walton m, zimmerman m, cunningham r. 2017. voices from flint: community perceptions of the flint water crisis. journal of urban health 94(6):776-779. kemp-rye m. 2005. planning for a changing workforce. national environmental services center, on tap 5(2):183. mann j., runge j. 2008. state of the industry report. journal-american water works association 100(10): 61-64, 66-68, 70-74. mohtar r, rosen ra. 2015. resource nexus: water, energy, food–water forum and technology roadmap. november 17-18, 2015 college station (texas): the texas a&m university system. 42 p. available from: http://libguides. tamusa.edu/ld.php?content_id=28446611 [pcast] president’s council of advisors on science and technology. 2016. report to the president: science and technology to ensure the safety of the nation’s drinking water. washington (district of columbia): president’s council of advisors on science and technology. 86 p. available from: https://obamawhitehouse.archives.gov/sites/default/files/ microsites/ostp/pcast/pcast_drinking_water_final_ report_20161221.pdf rosen ra. 2014. texas aquatic science. college station (texas): texas a&m university press. 200 p. rosen ra. 2017. 2016 texas water roadmap forum: workforce education, data, and research. institute for water resources science and technology, texas a&m university–san antonio, san antonio, texas. 56 p. available from: http:// libguides.tamusa.edu/ld.php?content_id=28446621 rosen ra, mohtar r, cifuentes la, frayser s, hustvedt g, patrick w, ragland c, roberts sv, vanegas j, wall c, wall j. 2017. the route to water security for texas: the 2015– 2016 texas water roadmap forums. texas water journal 8(1):116-123. [sfpuc] san francisco public utilities commission. 2012. 5-year strategic plan for workforce reliability in operations. san francisco (california): san francisco public utilities commission. 91 p. safe drinking water act, pub. l. no. 93-523 (1974), codified as amended at 42 u.s.c. §§ 300 et. seq. [usgao] u.s. government accountability office. 2018. water and wastewater workforce: recruiting approaches helped industry hire operators, but additional epa guidance could help identify future needs, gao-18-102. washington (district of columbia): united states government accountability office. january 26, 2018. available from: https://www.gao.gov/products/gao-18-102 [uss] u.s. senate. 2018. to establish an innovative water infrastructure workforce development program, and for other purposes. s. 2346, 115th congress. available from: https://www.congress.gov/ yessie s. 2012. crisis overstated? knowledge gaps and the aging water workforce [thesis]. [waterloo (ontario, canada)]: university of waterloo. http://www.michigan.gov/documents/snyder/fwatf_final_report_21march2016_517805_7.pdf http://www.michigan.gov/documents/snyder/fwatf_final_report_21march2016_517805_7.pdf http://libguides.tamusa.edu/ld.php?content_id=28446611 http://libguides.tamusa.edu/ld.php?content_id=28446611 http://libguides.tamusa.edu/ld.php?content_id=28446621 http://libguides.tamusa.edu/ld.php?content_id=28446621 https://www.gao.gov/products/gao-18-102 https://www.congress.gov/ texas' water quality challenge and the need for better communication in an era of increasing water quality contamination events texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org volume 9, number 1 2018 issn 2160-5319 editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. trinity university cover photo: sunrise over coastal bend bays & esturaries program land. © 2017 john reuthinger. see winning photos at wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, october 24, 2018 pages 108-119 abstract: as texas cities experience an increase in incidents associated with water quality contamination, the need for public education and engagement increases. the discussion in this paper identifies, based on publicly available data, three of the most common incidents in texas related to drinking water and environmental contamination: boil water notices (bwns), sanitary sewer overflows (ssos), and lead in drinking water. trends observed from 2011 to 2016 indicate a sharp upward increase in the incidents of such events. increased frequency of incidents that threaten water quality often erodes public trust in the city and utility, thus making it more difficult in the long term to get public support for increased investment in water and wastewater infrastructure. the recommendations in this study focus on how to manage communications when events associated with water quality create a public relations challenge for city and utility leaders. keywords: safe drinking water act, environmental protection agency, mcls, maximum contaminant levels, texas commission on environmental quality, texas water development board texas’ water quality challenge and the need for better communication in an era of increasing water quality contamination events 1principal at water savvy solutions, a water policy and education consulting firm in austin, tx. 2principal at rsah2o, an environmental consulting firm in austin, tx. 3healthcare associate at golin, a communications agency in chicago, il. *corresponding author: sapna@watersavvysolutions.com texas water journal, volume 9, number 1 sapna mulki1*, carlos rubinstein2 and julianne saletta3 citation: mulki s, rubinstein c, saletta j. 2018. texas' water quality challenge and the need for better communication in an era of increasing water quality contamination events. texas water journal. 9(1):108-119. available from: https://doi.org/10.21423/ twj.v9i1.7059. © 2018 sapna mulki, carlos rubinstein, julianne saletta. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v9i1.7059 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 9, number 1 109texas’ water quality challenge and the need for better communication terms used in paper acronyms descriptive name twdb texas water development board tceq texas commission on environmental quality mcls maximum contaminant levels sdwa safe drinking water act epa u.s. environmental protection agency bwns boil water notices ssos sanitary sewage overflows lcpe(s) lead contamination public education introduction when texans experience a threat to their water quality, it erodes public trust in city and utility leaders. that trust can take years to rebuild. the frequency of incidents threatening drinking water quality in texas has increased over the past six years. in particular, incidents of boil water notices (bwns), sanitary sewer overflows (ssos), and lead contamination public education (lcpe) increased by 73%, 983%, and 1,300%, respectively, from january 2011 to december 2016. the above-mentioned trend forewarns of how relationships between utilities and customers will deteriorate if these events persist and city and utility leaders cannot effectively communicate and reassure their users. to be sure, cities and utilities are actively implementing corrective measures to address these types of incidents; how these measures are communicated also impacts customers’ views. trust and dependability are values city and utility leaders need to engender in their customers, especially since infrastructure financing is heavily dependent on taxpayers’ contributions, and thus their perceptions. public relations will increasingly become a critical part of the city and utility leaders’ jobs because texas’ water and wastewater infrastructures are aging and in desperate need of repair and replacement. according to the texas section of the american society of civil engineers (2012), texas requires $33.9 billion to address water infrastructure issues over the next 20 years. the need for increased investment will ultimately lead to higher water rates. rates are the only low-cost means cities and utilities have at their disposal to raise the needed funds within a short amount of time. therefore, it is necessary that customers understand the true cost of delivering water. water quality crises and the mismanagement of rate increases, along with other situations, will only create obstacles to changing customer’s minds on the ability of utilities to perform their job adequately. to demonstrate the extent of the water quality issues in texas, the authors analyzed the data on three types of incidents between 2011 and 2016 most commonly associated with threats to drinking water quality: bwns, ssos, and lcpe. the frequency of the incidents is correlated with other variables: duration, population density, and water regions as defined by the texas water development board (twdb) regional water planning groups (see figure 1). texas water journal, volume 9, number 1 texas’ water quality challenge and the need for better communication110 the initiative addresses “an increase in ssos due to aging collection systems throughout the state and encourage(s) corrective action before there is harm to human health and safety or the environment (tceq c2002-2018).” lead contamination in drinking water is considered detrimental to humans if sample results indicate a value of 15 parts per billion, according to tceq (following epa guidance). under title 30 of the texas administrative code and per the federal lead and copper rule, public water systems are required to issue lcpe notices if they exceed this lead action level. lead in drinking water generally occurs because of corrosion of water pipes installed over 30 years ago or due to chemical reactions. lead contamination is a silent threat as it does not give a unique taste or color to water; lead in pipes can only be detected through the testing of drinking water or by blood tests of those who drink the water. lead also has long-lasting health impacts, including lifelong learning disabilities in children. methodology in fall 2016, data sets on the total number of bwns, ssos, and lcpes reported in texas between january 2011 and december 2016 were acquired from tceq via a public information request. data on bwns were organized by entity (i.e., public and private utilities), date the event began, and a tracking number. in the case of ssos, the data sets included the date of the sso, water region, city, total units spilled, source of incident when available, and the water bodies impacted when applicable. finally, lcpes were organized by public water systems that delivered such notices and the date that notices were issued to the public. to create uniformity among the data sets, each of the spreadsheets was reorganized by the total number of incidents by year and by water region. the regions are identified alphabetically starting from region a all the way to p. based on the tabulated data, line charts (see figures 2, 3, 4, and 5 and tables 1, 2, and 3) were generated to display the trends in the total number of incidents in each region over a six-year period. the data were also organized by population in each region to determine the correlation between population and the frequency of incidents associated with ssos, bwns, and lcpes. results between 2011 and 2016, the number of reported incidents associated with ssos, bwns and lcpes increased significantly. regions observed to have higher rates of incidents also have a high population density and are located close to or by the gulf coast. increased awareness, visibility, and concern of water quality impacts from such incidents in densely populated figure 1: regional water planning areas. source: texas water development board. bwns are issued when a utility suspects harmful levels of bacteria and other pathogens are in the drinking water supply. during such incidents, consumers are advised to boil and then cool the water prior to consumption. “common reasons for a boil water notice include loss of pressure in the distribution system and loss of disinfection. bwns often result from other events such as waterline breaks, treatment disruptions, power outages, and floods (ny.gov 2016).” ssos occur when raw sewage spills out of a collection system and into the environment—whether into a basement, out of manholes, onto a street, or into a waterway—before reaching a treatment plant. in a report to congress, the u.s. environmental protection agency (epa) estimated up to 75,000 sso events occur per year (epa 2004), often during extreme wet weather patterns, such as floods, blocking sewage systems. coastal cities are especially vulnerable due to extreme weather flooding, such as hurricanes. this is true particularly for texas cities along the gulf coast. frequent sso occurrences are indicative of failing infrastructure, lack of maintenance, ineffective operational procedures, and inadequate flow capacity (us epa 2016a). the texas commission on environmental quality (tceq) recognizes the increase in sso incidents and in 2004 established a compliance agreement coupled with a discretion-driven enforcement program called the sso initiative. this find-it-and-fix-it approach incentivizes corrective action by cities and utilities. texas water journal, volume 9, number 1 111texas’ water quality challenge and the need for better communication table 1. total number of boil water notices by region from january 2011 to december 2016. 2011 2012 2013 2014 2015 2016 total region a 2 5 5 6 11 9 38 region b 7 16 12 5 11 5 56 region c 29 71 73 77 126 86 462 region d 29 38 55 57 68 47 294 region e 2 3 9 4 3 3 24 region f 21 32 22 26 30 20 151 region g 66 148 159 181 247 191 992 region h 109 181 186 253 249 145 1,123 region i 193 332 308 282 311 214 1,640 region j 2 5 9 5 11 2 34 region k 57 66 96 118 144 85 566 region l 12 27 24 52 101 84 300 region m 3 14 7 5 7 9 45 region n 6 24 29 15 7 4 85 region o 6 27 27 25 20 34 139 region p 0 1 1 3 2 1 8 total 544 990 1,022 1,114 1,348 939 5,957 urbanized areas may drive increased reporting. detailed results and trends for each type of incident are discussed below. boil water notices (bwns) the total number of bwns recorded in the six-year period observed was 5,957 incidents. the annual number of incidents increased generally during the six-year period in all 16 regions. the overall increase—from 544 incidents reported in 2011 to 939 by the end of 2016—represents a 73% increase in the number of bwns reported in texas (see table 1 and figure 2). four regions—g, h, i, and k—recorded a higher than average number of incidents. although the number of bwns reported decreased in 2016, this is not an anomaly and could be attributed, in part, to reporting and recording inconsistencies, as well as a decrease in extreme weather events. regions g, h, i, and k are also high population centers, representing approximately 42% of the total texas population. in addition to houston-based region h, region g includes abilene, bryan, college station, killeen, round rock, temple, and waco; region i includes beaumont, tyler, port arthur, nacogdoches, and lufkin; and region k includes austin, bay city, pflugerville, and fredericksburg. a notable spike can be seen between 2011 and 2012 where incidents increased by 82% from 544 to 990, respectively. the spike is most likely attributed to the regional impacts noted from the severe drought that began in 2009 and peaked in 2011. severe droughts and resulting soil moisture loss can damage infrastructure, resulting in line leaks, water main breaks, and overall system pressure loss. texas water journal, volume 9, number 1 texas’ water quality challenge and the need for better communication112 79%, which was likely caused by the heavy rainfall and resulting flooding at the end of the 2010–2014 texas drought. the second spike was specific to region h, where the number of ssos rose from 75 in 2015 to 2,364 in 2016. this spike was driven mainly by region h and the history of sso incidents and response to the same by the greater houston area in particular. the houston region is known for subsidence issues. periods of drought followed by flooding can cause significant soil movement, particularly in clay soil areas. this movement can wreak havoc on infrastructure and cause flooding events that increase infiltration to sewer systems, which can then quickly overtake their design capacity, resulting in ssos. the city of houston, recognizing the need to remedy these sso trends, has undertaken a multiyear infrastructure replacement program. a report from the houston chronicle claims that “ramping up maintenance and educating the public on how to avoid clogging houston’s 6,700 miles will cost up to $5 billion (morris 2016).” figure 2. total number of boil water notices by region from january 2011 to december 2016. sanitary sewer overflows (ssos) in the six-year period examined, there were 7,982 sso incidents; the total rose by 983% over this period with approximately 424 incidents in 2011 and 4,594 in 2016 across all 16 regions (see table 2 and figure 3). five of the regions—f, g, h, k, and l—recorded a higher-than-average number of ssos over the six-year period; regions h and l recorded the highest total number of ssos at 2,468 and 1,916, respectively. these regions are also high population centers, representing approximately 50% of the total texas population. the largest cities in region h are houston and galveston, while the largest cities in region l are san antonio, victoria, san marcos, and new braunfels. both region h and l include segments of the gulf coast, making them more susceptible to extreme wet weather conditions, often causing flooding. floods can overwhelm aging wastewater systems and result in ssos. there were two notable spikes observed in the sso data. the first spike occurred between 2014 and 2015, during which the number of reported statewide sso incidents increased by texas water journal, volume 9, number 1 113texas’ water quality challenge and the need for better communication table 2. total number of sanitary sewer overflows by region from january 2011 to december 2016. 2011 2012 2013 2014 2015 2016 total region a 0 0 0 59 27 33 119 region b 0 0 0 0 9 38 47 region c 2 30 5 4 46 399 486 region d 0 1 7 3 26 33 70 region e 16 7 3 6 0 19 51 region f 95 74 60 91 97 91 508 region g 106 310 1 4 21 375 817 region h 1 14 9 5 75 2,364 2,468 region i 2 2 0 3 82 415 504 region j 0 0 0 0 4 25 29 region k 0 1 1 153 266 279 700 region l 201 269 436 267 384 359 1,916 region m 0 1 0 0 0 2 3 region n 1 5 7 6 2 113 134 region o 0 0 0 16 65 49 130 region p 0 0 0 0 0 0 0 total 424 714 529 617 1,104 4,594 7,982 figure 3. total number of sanitary sewer overflows by region from january 2011 to december 2016. texas water journal, volume 9, number 1 texas’ water quality challenge and the need for better communication114 corridor) and region c where the population is dense. region c includes the dallas-fort worth metropolitan area and the fastest growing regions in the state (twdb 2016b). as previously mentioned, part of this observed increase may be due to the large and dense population and to increased awareness and monitoring of discrete sites (specific schools, churches, industrial facilities, etc.), which may explain part of this observed increase. reports of lead in water samples do not necessarily indicate system-wide problems, although areas with significant population growth over the last decade can benefit from newer infrastructure and plumbing codes, thus reducing the incidents of reported lead in drinking water. within older developed areas, many instances of reported lead in water can be attributed to post-meter in-property plumbing, which may be of significant age. table 3. total number of lead contamination public education notices by region from january 2011 to december 2016. 2011 2012 2013 2014 2015 2016 total region a 0 0 0 1 0 0 1 region b 0 0 0 0 0 1 1 region c 0 0 4 1 2 1 8 region d 0 0 1 4 3 0 8 region e 0 0 0 3 0 0 3 region f 0 0 1 3 5 1 10 region g 1 1 3 9 2 8 24 region h 1 2 21 28 35 21 108 region i 0 0 3 2 3 1 9 region j 0 1 3 4 1 0 9 region k 0 0 7 6 5 4 22 region l 1 0 4 4 5 3 17 region m 0 0 0 0 0 0 0 region n 0 0 1 0 1 1 3 region o 0 0 0 0 1 1 2 region p 0 0 0 0 1 0 1 total 3 4 48 65 64 42 226 lead contamination public education (lcpe) in comparison to ssos and bwns, public education notices related to lead contamination decreased during the six-year period. however, there was an overall increase in the number of lcpes recorded, totaling 226 incidents. the number of incidents increased consistently during the same period in all 16 regions (see table 3 and figure 4). overall, a sharp increase of almost 1,300% is observed in the same six-year period. there was a notable spike between 2012 and 2013 where reported incidents increased by 1,100% from 4 to 48, respectively. this was most likely attributed to better reporting from the jurisdictions to tceq. in region h, where the highest number of incidents was recorded, this trend was most likely due to the influence from the petrochemical industry. aging or poorly maintained infrastructure also contributed to the trend. four regions—g, h, k, and l—recorded a higher-than-average number of lcpes. most of the sources of lcpe notices were from industry followed by municipalities. in region h, lcpe notices were largely attributed to the petrochemical industry, which is the region’s largest economic sector and also “accounts for two-thirds of the petrochemical production in the united states (twdb 2016a).”  the most pertinent trends in lead notices relate to the population and geographical location of each region. the majority of incidents occurred in central and east texas (along the i-35 overall results despite the few mentioned limitations, the authors believe tceq data provides enough detailed information to make the study conclusive. there are various factors possibly causing the fluctuations in total incidents recorded, such as dilapidating infrastructure, extreme weather events, and inconsistent reporting/recording. for this reason, the data analysis focused on overall trends in the six-year period and made note of texas water journal, volume 9, number 1 115texas’ water quality challenge and the need for better communication it is important to note that west and northwest regions of the state observed fewer incidents than regions in central or east texas or by the gulf coast. the reason for such a trend is most likely due to the sparser populations in west texas regions, along with the lower threat of extreme weather events such as hurricanes and flash flooding. unsurprisingly, the number of lcpe notices is relatively low. lead contamination in drinking water supply is not common in the united states. however, the water crisis in flint, michigan, heightened public fears on the issue, especially because of the amplified risks to infants and children. with the epa declaring that no level of lead is safe for children, the authors believe city and utility leaders have to make a greater investment in identifying the lead lines in their jurisdictions and replacing them in order to avoid another crisis similar to flint (epa 2016b). the data analysis informed the authors’ consideration of the regulatory and reporting standards informing the public on drinking water contamination. the significant overall increase in incidents related to bwns, ssos, and lcpes highlights the need for utility officials to consider embedding crisis communications into their outreach strategies, if they have not done so already. overall trends also strongly suggest an increase in incidents, especially in densely populated regions of the state, which makes the need for a dedicated crisis communication strategy even more compelling. figure 4. total number of lead contamination public education notices by region from january 2011 to december 2016. unique factors as it relates to population density, location, and unique weather patterns. the study shows that regions with a population of one million or more (g, h, i, k, l, and m) are more likely to have a higher number of incidents associated with bwns, ssos, and lcpes. these regions also happen to be close to or on the gulf coast, which makes their water and wastewater systems even more susceptible to extreme weather events, coupled with their aging infrastructure, which impacts capacity management and efficiency. the data reveals an overall increase in bwns, ssos, and lcpes issued in texas from 2011 to 2016 (see table 4). during the study time frame, bwns increased about 73%, while sso incidents increased 983%, and lcpe reports increased 1,300%. the formula to calculate the percentage difference is as follows: (total number of bwns or ssos or lcpes in 2016 total number of bwns or ssos or lcpes in 2011 x 100)/ total number of bwns or ssos or lcpes in 2011. the overall trends suggest that there is an increasing frequency of threats to the water quality in texas. the reasons for the trends are most likely due to pressure on aging water infrastructure from rapid population increases and increased frequency of extreme weather events e.g. flooding and hurricanes. as seen from the results discussion, some areas are driving these trends more than others are, such as regions h and i. while other regions are low in comparison to the number of incidents between 2011 and 2016, it is important to note that the trend is still upward for most part. texas water journal, volume 9, number 1 texas’ water quality challenge and the need for better communication116 limitations the data provided by tceq have allowed for strong and conclusive results, the observation of specific trends, and the identification of correlations. however, data analysis was limited by a few ambiguities in the data sets. for example, there was a lack of data reported on the number of incidents, mainly ssos and lcpes, recorded between 2011 and 2013. gaps in the data are most likely due to inconsistencies in data collection, monitoring, and reporting to tceq by the respective entities. another anomaly observed was in the data obtained on ssos. region k reported zero sso incidents in 2011, and yet table 4. total number of incidents in texas from january 2011 to december 2016. bwns ssos lcpes total 2011 544 424 3 971 2012 990 714 4 1,708 2013 1,022 529 48 1,599 2014 1,114 617 65 1,796 2015 1,348 1,104 64 2,516 2016 939 4,594 42 5,575 total 5,957 7,982 226 14,165 percentage change 73% 983% 1,300% figure 5. total number of ssos, bwns and lcpes in texas from january 2011 to december 2016. listed 919,984 gallons of sewage released. we were unable to ascertain the total number of incidents in 2011 or the rationale for such information management. discussion – the need for better and more communications to reduce these threats to drinking water safety, utilities will have to continue to invest in improving and maintaining their water and wastewater infrastructure, which is no easy feat. in the meantime, cities will most likely continue to experience water crises of varying proportions. texas water journal, volume 9, number 1 117texas’ water quality challenge and the need for better communication water crises often feed peoples’ tendencies to exaggerate, incite chaos, and place blame. to prevent a water crisis from doing long-term damage to a company or municipality’s reputation, they must invest in thorough communication strategies to engage and educate. a well-managed water crisis helps to manage costs, alleviate community unrest, prevent erosion of public trust, and maintain political credibility. an example of customer-expressed loss of trust in a utility occurred southwest of fort worth, where residents experienced a six-week long bwn in 2016 (walker 2016). even after the notice was lifted, residents did not trust their water. one resident said of the impacted water provider, “they seem like they don’t care, which makes us not trust them even more and it just seems unethical. it’s just not right (walker 2016).” most political and utility leaders and staff who have had the misfortune of being caught in a crisis can attest to how quickly it can become divisive. false and inaccurate stories will often appear in the media, and interest groups will distract from the real issue at hand. social media adds to the challenge by quickly fueling rumors, which only prolong and inflame the crisis. during a crisis, there are certain fundamental values that must be integrated into every decision-making process within the utility before it publicly communicates to customers and the broader community. these basic principles of crisis communication include transparency and honesty, clarity and commitment, compassion and reassurance, and listening and engaging. transparency and honesty transparency and honesty form the backbone of efforts to maintain or rebuild trust and credibility. when a spokesperson is upfront about the cause of a crisis it demonstrates the utility is taking ownership of the situation and showing commitment to the public’s welfare. providing accurate and clear information is the first and most critical step to preventing a crisis from getting out of control. if there is no answer to a particular question, spokespeople can follow up with accurate answers at a later specified time. transparency can be demonstrated by divulging details regarding the steps being taken to address the crisis, through regular updates to the public. the consequences of a lack of such transparency, along with broken promises to the public and ambiguous communication techniques, can be damaging to the reputation of a utility or city. reoccurring water quality crises can and have resulted in resignations of high-level pubic officials. this level of dissatisfaction can also drive voting trends toward change, particularly for local elected officials. a classic example of where denial or lack of transparency exacerbated a water crisis was in flint, michigan. when confronted about his level of knowledge of the situation in flint before it became public, governor rick snyder of michigan denied knowledge of the lead contamination, adding, “i wish i would have asked more questions (oosting and carah 2016).” he did not provide enough evidence to the public to prove his lack of knowledge on the situation, which quickly made him a target for blame. “...the idea that every one of his top staff were actively debating the flint water crisis and that he was unaware is no longer credible,” state representative jeff irwin said (oosting and carah 2016). to this day governor snyder’s role in the crisis is being questioned. according to a new report from the university of michigan school of public health, governor snyder “bears significant legal responsibility for the (flint water) crisis based on his supervisory role over state agencies (fonger 2018).” clarity and commitment clarity and commitment in providing the facts about a water safety crisis will help ensure that the situation is neither exaggerated nor underemphasized. facts need to be presented simply and without jargon. sometimes information spread via mainstream or social media is inaccurate or untrue. online rumors and “fake news” spread quickly and can turn people against an agency overnight. inaccuracies about the cause of a crisis only fuel doubt and mistrust in the utility as credible, ethical, and responsible leaders in the community. the facts about a crisis need to be communicated repeatedly, like a mantra, in order to ensure continuous visibility and factual coverage of the situation in local media. commitment can be demonstrated by taking responsibility for a situation and its solution, and by ensuring that the facts are disseminated. however, saying civic or utility leaders are committed to resolving a crisis without being transparent about the actions being taken serves no purpose. an example of leaders missing a chance to express commitment has been seen in situations where heavy rains have resulted in several ssos. in one such incident, local officials did not communicate any actions being taken to solve the problem, instead saying, “there is no way to prevent raw sewage from spewing into the streets when we receive as much rain as we did (quinn 2015).” instead of implying that the problem could not be solved, the city officials should have communicated its focus and commitment to fixing the issue and concrete steps to prevent a reoccurrence. city officials could have also taken the incident as an opportunity to explain why ssos occur and what the city is doing to reduce incidents. a good example of a water utility that took responsibility for its actions and went above and beyond to demonstrate its commitment is the san antonio water system (saws) when it was hit with an epa consent decree to curb sewer spills by investing an additional $492 million in infrastructure and maintenance. texas water journal, volume 9, number 1 texas’ water quality challenge and the need for better communication118 saws’ acceptance of the situation and promise to fix the situation was nicely captured in president and ceo robert puente’s comments, “this agreement is designed for the most cost-effective use of ratepayer dollars and avoids costly federal litigation (saws 2013).”  focusing on the customer and emphasizing the legal and fiscal responsibility of the utility is a positive message that helps build public support for the utility. compassion and reassurance utilities should be relatable to customers and express understanding of a water crisis’ impact on their well-being. they should share sincere sympathies with the public while at the same time reassuring customers that experts are managing the crisis with speed, thoroughness, and integrity. note that customers and the public do not want nor need to hear about how hard a situation is on the city, utility, or responsible entity. when bp ceo tony hayward said in response to the deepwater horizon disaster, “there’s no one who wants this over more than i do. i’d like my life back,” it only angered the public. a good example of a city official showing compassion comes from former corpus christi mayor dan mcqueen. following the announcement of a tap water advisory (hersher 2016), he said, “i hope you guys understand and feel the emotion i have right now. this certainly isn’t something the city wanted to do. it’s the 18th of december. we have christmas right around the corner. my heart goes out to everybody in our city right now. i apologize. i apologize personally.” listening and engagement traditional and social media should be used both to assess the public’s concern and to disseminate information to the public. for example, twitter can be used for brief alerts and updates, with facebook allowing for more elaboration using various media assets such as videos, infographics, links, etc. while social media reaches a broad spectrum of customers quickly, a crisis response requires direct engagement—usually face-to-face—by utilities and government entities connecting directly with the community. allow opportunities for people to have conversations and ask officials and experts questions at open houses. this engagement should be conducted from the earliest stages of a crisis to clear up misinformation, help customers understand, and, most importantly, empower them to be heard. a utility leader who is known for listening and relating to his customers is the former general manager of dc water, george hawkins. in 2004, a washington post article reported that dc water attempted to ‘cover up’ its survey findings of 4,000 homes having lead levels exceeding the federally acceptable level set by epa. over 200 stories on the lead issue followed. at that moment, hawkins being upfront and engaged in addressing the public’s concerns helped to qualm the rightfully upset families that were impacted. “we’ve never denied what happened in the early 2000s…no question, it was a very significant problem in the district. . .we certainly learned from it, and now we have a very advanced [lead] control system in place (shaver and hedgpeth 2016).” conclusion the number of ssos, bwns, and lcpes in texas has significantly increased over the past six years, and the lack of an investment boost for infrastructure development suggest that the trend will continue. crisis communication on water issues serves as a solution to the larger problem of our water infrastructure needing desperate and urgent attention. but improving water infrastructure is a massive feat and will take years to accomplish. to texas’ credit, several highly attractive public funding mechanisms are in place to assist and incentivize these needed improvements. yet public funding and local ratepayer capacity alone may not be enough to meet all needs. private capital investment should also be encouraged and relied upon. effective communication can promote constituent support for infrastructure improvements. absent of these efforts, communities may continue to be heavily impacted by water crises. in order to prevent increased public dissonance, particularly on a highly sensitive issue such as clean drinking water, our recommendation is to increase investment in strategic communication and outreach on water crisis matters. implementing the principles of effective crisis communication require discipline and experience to act fast while considering all factors of influence. it is important to get the right messages across at the right time. furthermore, a good crisis communication plan prevents further deterioration of a utilityor city-customer relationship. if water crises are not managed with the sensitivity needed, public trust can be eroded, and that is very hard to rebuild. this lack of trust in a utility or city officials makes it very difficult to get approval for other initiatives (e.g. rate increases) when needed the most. the water crisis in flint may have changed public perception toward water utilities indefinitely. americans doubt their water quality more than ever, and if water utilities do not do a good job of reassuring their customers, especially during a crisis, then water professionals have failed. texas water journal, volume 9, number 1 119texas’ water quality challenge and the need for better communication references [asce texas section] texas section of the american society of civil engineers. 2012. cpa 2012 report card for texas’ infrastructure. available from: http://www.infrastructurereportcard.org/wp-content/uploads/2013/02/2012-texasreport-card-final.pdf fonger r. 2018 feb 20. um report: gov. snyder bears ‘significant legal responsibility’ for flint water crisis. m live. 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[cited 2018 aug 29]. available from: https://www.detroitnews.com/ story/news/michigan/flint-water-crisis/2016/02/26/snyder-water-bill-relief/80979926/ quinn kq. 2015 oct 26. city of houston: sewage spills can’t be prevented in heavy rain events. abc13. [cited 2016 sep 22]. available from: http://abc13.com/weather/cityof-houston-sewage-spills-cant-be-prevented/1052536/ shaver k. and hedgpeth d. 2016 mar 16. d.c.’s decade-old problem of lead in water gets new attention during flint crisis. washington post. [cited 2018 aug 29]. available from: https://www.washingtonpost.com/local/dcs-decadeold-problem-of-lead-in-water-gets-new-attention-duringflint-crisis/2016/03/17/79f8d476-ec64-11e5-b0fd073d5930a7b7_story.html?noredirect=on&utm_term=. c639c71a566c [saws]. san antonio water system. 2013 june 4. saws agrees to settlement with epa to curb sewer spills. saws press release. [cited 2016 sep 22]. available from: http:// www.saws.org/latest_news/newsdrill.cfm?news_id=916 [tceq] texas commission on environmental quality. c 2002-2018. faqs on sanitary sewer overflow initiative. [updated 2018 june 22; cited 2016 sep 22]. available from: https://www.tceq.texas.gov/compliance/investigation/ssoinitiative [twdb] texas water development board. 2016a. region c planning group. [cited 2016 sep 22]. available from: https://www.twdb.texas.gov/waterplanning/rwp/ regions/c/ [twdb] texas water development board. 2016b. region h planning group. [cited 2016 sep 22]. available from: https://www.twdb.texas.gov/waterplanning/rwp/ regions/h/ [twdb] texas water development board. 2017. texas water plan. [cited 2016 sep 22]. available from: https://www. twdb.texas.gov/waterplanning/swp/2017/ [us epa] u.s. environmental protection agency. 2016a. epa survey shows $271 billion needed for nations wastewater infrastructure. [cited 2016 sep 22]. available from: https://archive.epa.gov/epa/newsreleases/epa-survey-shows-271-billion-needed-nations-wastewater-infrastructure.html [us epa] u.s. environmental protection agency. 2016b. basic information about lead in drinking water. [updated 2018 march 23; cited 2016 sep 22]. available from: https://www.epa.gov/ground-water-and-drinking-water/ basic-information-about-lead-drinking-water [us epa] u.s. environmental protection agency. 2004. report to congress: impacts and control of csos and ssos. p.24 walker nw. 2016 jul 21. boil order lifted for water customers in benbrook neighborhood but distrust persists. nbcdfw. [cited 2016 sep 22]. available from: http:// www.nbcdfw.com/news/local/boil-order-lifted-for-water-customers-in-benbrook-neighborhood-but-distrustpersists-387890562.html optimizing water supply through reservoir conversion and storage of return flow: a case study at joe pool lake texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 13 number 1 | 2022 http://texaswaterjournal.org volume 13, number 1 2022 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more 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h. votteler, ph.d. collaborative water resolution llc managing editor chantal cough-schulze texas water resources institute layout editor sarah richardson texas water resources institute staff editor cierra george texas water resources institute cover photo: a view of the milky way over phoinix ranch in jim wells and live oak counties. ©2022 rey garza and jim quisenberry the texas water journal is indexed by scopus, google scholar, and the directory of open access journals. http://texaswaterjournal.org https://twri.tamu.edu/ http://texaswaterjournal.org https://twj.media/donate/ http://texaswaterjournal.org http://texaswaterjournal.org https://www.scopus.com/home.uri https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://doaj.org/toc/2160-5319 https://doaj.org/apply/seal/ texas water journal, volume 12, number 1 texas water resources institute texas water journal volume 13, number 1, february 22, 2022 pages 1-12 optimizing water supply through reservoir conversion and storage of return flow: a case study at joe pool lake abstract: maintaining an adequate water supply is one of the key challenges faced by the dallas-fort worth metroplex, where increasing population and rising water demand have elevated the vulnerability of the communities to water shortages. we conducted a preliminary study exploring the possibility of converting flood storage in the joe pool lake to improve water supply reliability and achieve better cost efficiency. this study employs a mixed integer linear programming approach that considers the costs of using flood storage conversion to meet water needs over the northern portion of the trinity river basin. it includes tradeoffs between capturing and storing runoff versus return flow from the wastewater treatment facilities of the trinity river authority. a set of hypothetical prices and demand figures with the period of record of 1940–1996 was considered to test the mixed integer linear programming model. results from the mixed integer linear programming produce an optimal strategy that increases the firm yield of joe pool lake and associated storage-diversion on an annual basis. also, the outcomes of the analyses of the results suggest that while the conversion would have a positive impact on water availability, a lower expansion cost of $20 per acre-foot per year would be required to produce sufficient cost savings. keywords: trinity river basin, joe pool lake, mixed integer linear programming, optimization, cost efficiency 1 department of industrial, manufacturing, and systems engineering, university of texas at arlington, arlington, texas 2 iowa department of transportation, grimes resident construction engineer’s office 3 trinity river authority of texas, arlington, texas 4 department of civil engineering, the university of texas at arlington, arlington, texas * corresponding author: srividya.sekar@mavs.uta.edu received 23 october 2020, accepted 9 november 2021, published online 22 february 2022. citation: sekar s, daghighi a, chen vcp, clingenpeel g, zhang y, rosenberger jm, boskabadi a. 2022. optimizing water supply through reservoir conversion and storage of return flow: a case study at joe pool lake. texas water journal. 13(1):1-12. available from: https://doi.org/10.21423/twj.v13i1.7124. © 2022 srividya sekar, amin daghighi, victoria cp chen, glenn clingenpeel, yu zhang, jay m rosenberger, azam boskabadi. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. srividya sekar1*, amin daghighi2, victoria cp chen1, glenn clingenpeel3, yu zhang4, jay m rosenberger1, azam boskabadi1 mailto:srividya.sekar%40mavs.uta.edu?subject= https://doi.org/10.21423/twj.v13i1.7124 https://creativecommons.org/licenses/by/4.0/ https://creativecommons.org/licenses/by/4.0/ https://journals.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 12, number 1 optimizing water supply through reservoir conversion and storage of return flow2 terms used in paper acronym/initialism descriptive name ac-ft acre-feet crws central regional wastewater system jpl joe pool lake llp lake livingston milp mixed integer linear programming tceq texas commission on environmental quality tra trinity river authority twdb texas water development board usace united states army corps of engineers wam water availability model wrap water rights analysis package the population of texas is projected to increase by 82% between 2010 and 2060 according to the texas water development board (twdb; twdb 2017). during the same time period, twdb notes that current water resources are expected to decline by 10%, from 17.0 million acre-feet (ac-ft) to 15.3 million ac-ft (twdb 2012), as siltation consumes reservoir conservation capacity. in addition, the state experiences consecutive periods of droughts and floods that are generally associated with the el niño–southern oscillation cycle (pu et al. 2016; naden and platt n.d.). extreme examples of droughts and floods can be seen in the meteorological records of 2011 and 2015, respectively. the driest and hottest year was in 2012 (nielsen-gammon 2012), the wettest year was in 2015 (national centers for environmental information 2022). just 3 years later, hurricane harvey and tropical storm imelda set records for precipitation in 2017 and 2019, respectively, with both events producing in excess of 40 inches of rain (lecomte 2020). texas water managers must therefore balance the needs of water supply with flood control. for this reason, many reservoirs in texas have both conservation and flood pools. throughout the 20th century, the united states invested heavily in flood introduction population and economic growth intensify the demand for water sources. reservoirs are important in addressing this growing demand, especially in regions like texas that experience both significant variability in inter-seasonal precipitation and inter-annual precipitation. specifically, the state experiences a bimodal precipitation pattern with strong frontal systems producing significant rainfall in the spring and fall. this is bifurcated by hot and dry summers that can last for several months. during this time, surface flow in major river systems is habitually and significantly reduced. for these reasons, reservoirs, which catch runoff from wet months and store them for use during dry months, have been paramount to the development of texas. reservoirs are also critical in providing adequate water supplies through multi-year periods of low rainfall relative to normal precipitation. many of the state’s reservoirs were built in the 1950s following the dustbowl years of the 1930s (reynolds et al. 1999). relatively few reservoirs have been built in the last few decades, while existing storage capacity has become increasingly stressed by the state’s growing municipal, agricultural, industrial, and energy needs (cervellera et al. 2006). texas water journal, volume 12, number 1 3optimizing water supply through reservoir conversion and storage of return flow figure 1. joe pool lake reservoir and location characteristics. control infrastructure in response to devastating floods along major rivers across the nation. between 1901 and 1991, 51 major reservoirs were constructed in texas for flood control or with flood storage capacity (twdb 2019). in addition, the natural resources conservation service constructed approximately 2,000 smaller reservoirs to also provide flood control throughout the state (twdb 2019). typically, a multipurpose reservoir consists of a sediment or inactive pool at the bottom, a water conservation pool in the middle, and a flood control pool above the water conservation pool. reservoir operations entail maintaining conservation pools as full as possible, while simultaneously supplying water demands and maintaining flood control pools as empty as possible (yeh 1985; yang et al. 2015; slade 2020; yaghoubi et al. 2020). conserving empty flood pool capacity is essential for allowing flooding operations to catch and temporarily store flood waters to reduce downstream flooding. in some situations, agreements are made between the operators and water suppliers to allow the designated conservation storage to be raised or lowered permanently, seasonally, or as a function of other changing conditions (cromarty et al. 1982). the state thus finds itself with the ever-growing demands for reliable water supplies frustrated by the challenges of new reservoir construction due to economic, financial, environmental, and institutional considerations. however, reallocation of flood storage capacity and related modifications in the operation of existing reservoirs is difficult because it is contentious, and the authors recognize that it might not be possible if the u.s. army corps of engineers (usace) deems it inappropriate. but the studies on reallocated storage can be used in optimization strategies involving the movement of water between reservoirs, rivers, and other water supply infrastructure. the emergence and widespread adoption of sophisticated models such as riverware are enabling entities to view their systems in ways that were heretofore impossible and explore cooperative efforts between entities with disparate water supply infrastructures. this has the possibility of significantly increasing the efficiency of water supply systems, offsetting the need to construct new reservoirs, and providing in-stream environmental benefits.1 the trinity river basin is located in east-central texas. the watershed begins to the north within a few miles of the red river and the oklahoma border. from there it flows to the south and east some 700 miles before emptying into the gulf of mexico. the river is an important source of water, supplying or supplementing supplies for approximately half of the 1 please note that co-author glenn clingenpeel is currently working with the usace on a long-term project that would allow use of the flood pool for water supply. he also co-presented the work on this project at texas water conservation association’s conference in june 2021 under the topic “forecast informed reservoir operations (firo).” this methodology is being implemented successfully in california. state’s population. this is due almost exclusively to the network of reservoirs located throughout the 18,000-square-mile watershed. these reservoirs are owned and operated by several different entities, most notably, usace, the tarrant regional water district, the north texas municipal water district, and the trinity river authority (tra). the joe pool lake (jpl) reservoir is located in the dallas-fort worth metroplex. it is owned and operated by usace and provides both water supply and flood control benefits. completed in 1989, jpl reservoir has a capacity of 176,900 ac-ft and collects runoff from a watershed area of 232 square miles, as shown in figure 1 (ghimire 2014). technical information about reservoir and reservoir storage data in daily time steps is available on the usace fort worth district website (usace n.d.). table 1 describes technical features of joe pool dam (demirel and wurbs 2015). tra is exploring the possibility of expanding the conservation, or water supply, pool capacity of jpl reservoir to address growing water demand in the region along with alleviating potential shortages during droughts. one possibility is to convert flood pool storage into water supply storage and to capture and store treated wastewater from the tra central regional wastewater system (crws). treated wastewater is increasingly becoming an important source of water in the region containing the upper portion of the trinity river (the region c regional water planning area, as defined by the texas water development board). economic and environmental issues together are one of the main factors for reusing the wastewater treatment (haghiri et al. 2018; gheytaspour and texas water journal, volume 12, number 1 optimizing water supply through reservoir conversion and storage of return flow4 table 1. technical details of joe pool lake storage. figure 2. system design of jpl reservoir diversion and sale of stored return flows. river basin, water demand in the northern portion of the trinity river basin (henceforth referred to as the northern market), water supply from outside the trinity river basin, and the operating strategy. the operating strategy will consist of a set of dynamic decisions regarding the amount of return flow to be sold to the neighboring cities or stored at jpl reservoir, the capture and release of runoff, and the amount of stored water to be sold at a given year. the term runoff is used to distinguish between runoff (sometimes called natural flow) and inflows, which include return flows and imported water. these decisions will be formed by considering hydroclimate conditions, water demand, water rights, and contractual and regulatory requirements. thus, the objective of this project is to determine optimal conversion capacity and associated operational habibzadeh bigdarvish 2018; asgari-motlagh et al. 2019); however, the reuse of treated wastewater also greatly depends on public agreement, awareness, and support (daghighi et al. 2020). tra holds both the water rights for treated wastewater discharged from their facilities, henceforth referred to as return flow, and the water stored in jpl reservoir. increasing the conservation capacity of jpl reservoir will provide operational flexibility to store and sell a portion of the return flows to adjacent cities. figure 2 provides schematic design details of this research design. the cost-effectiveness of the jpl reservoir conversion project is determined by a number of factors, among which are hydroclimate conditions (future precipitation amounts and inflow volumes) over both the upper and lower portions of the trinity feature elevation (feet) accumulative (acre-feet) incremental (acre-feet) spillway capacity (cubic feet per second) top of dam 564.5 ------maximum design water 559.5 642,400 279,700 11,900 spillway crest 541 362,700 58,700 --top of flood control pool 536 304500 127600 --top of conservation pool 522 176,900 142,900 --sediment reserve ----38,000 --streambed 456 ------texas water journal, volume 12, number 1 5optimizing water supply through reservoir conversion and storage of return flow strategies that would minimize an objective function that factors in conversion cost, revenue from water sales, and demand/ supply gap, while meeting contractual and regulatory requirements. mixed integer linear programming (milp) is one of the most common and user-friendly techniques for water reservoir optimization (eusuff and lansey 2003; ghahraman and sepaskhah 2004; daghighi et al. 2017; samani and mottaghi 2006). we will proceed by formulating a milp problem that superimposes realistic runoff and return flow on known historical hydro-climate conditions over multiple years. the texas commission on environmental quality (tceq) is charged with issuing water rights in texas based upon a legal framework known as the prior appropriation doctrine. this requires an accounting and allocation of available water based on seniority, with the oldest water rights being the most senior. when there is insufficient water to satisfy all water rights, water is allocated first to the most senior rights. the model that tceq uses to account for and allocate water among water rights holders is called the water rights analysis package, or wrap (wurbs 2001). wrap can be used to evaluate the impact of various demand and permit scenarios on water rights, based on historic hydro-climate conditions. these scenario-based model runs are called water availability model runs, or wam runs for short. the hydrology upon which they are based represents a documented and accepted set of hydrologic conditions that include the drought of record and is used to evaluate the reliability of water rights. this set of hydrologic conditions will be used as the basis of evaluation for milp. wam run 3, last updated on october 7, 2014, will be used in the study. materials and methods definition of input variables table 2 specifies the input data that will be required to populate the milp problem. most values will change from year to year and are represented as a function of time. but values that are assumed to be static across all years are represented by themselves. abbreviations are used for joe pool lake (jpl), lake livingston (llp), and crws. for the first tier return flow volume (v1(t)), milp requires the available volume after accounting for channel or evaporative losses. in addition, losses can be incorporated in the fractions β and γ. the milp formulation allows input parameters to vary by year except for those values pertaining directly to the jpl reservoir expansion. definition of decision variables table 3 defines the milp formulation by the decision variables, objective function, and constraints. the primary decision is the expansion of jpl reservoir, the secondary decisions are year-toyear volumes of water sold, and slack variables are used in a penalty approach for demand and reservoir overflow. the expansion of jpl reservoir is assumed static across all years. the resolution of the milp is annual, so it is assumed that every day is identical and that there are 365 days per year. under this assumption, the annual volume of first tier return flow diverted to storage in jpl reservoir and the volume of water from jpl reservoir sold to northern region values are input detail cjpl cost to expand one-unit volume of joe pool lake (jpl) reservoir cd (t) penalty cost per volume of demand not met rjpl (t) revenue selling from jpl reservoir to northern region per volume sold rn (t) revenue selling from the central regional wastewater system (crws) to northern region per volume sold rs (t) revenue selling from crws to southern region per volume sold β (t) fraction of jpl reservoir first tier flow sold to northern market that returns via crws (adds to second tier flow) γ (t) fraction of diverted first tier flow that reaches storage into jpl reservoir (loss is channel and evaporative loss) v1 (t) volume of available first tier water (different for wet vs. dry years) v2 (t)* volume of available second tier water rllp (t) salable runoff volume into lake livingston (can vary by year, but for current study fixed at 351,600 acre-feet). it is inflow, but it is only that fraction of inflows that resulted from runoff in the watershed. dn (t) demand volume for the northern region ds(t) demand volume for the southern region (constant across different years) w upper limit on jpl reservoir expansion *the volume of available second tier water can be calculated via v2 = β(yn + 365 yjpl). table 2. linear programming problems inputs. texas water journal, volume 12, number 1 optimizing water supply through reservoir conversion and storage of return flow6 distributed equally per day. finally, penalty costs per volume of unmet demand for the northern and southern regions are assumed the same. formulation of linear program the objective function is formulated to minimize the costs minus the revenue obtained. the costs involved in the equation include the cost to expand jpl reservoir (cjpl x), a penalty cost for not meeting demand (cd (sn+ ss)). the penalty coefficient cd can be set to zero if no penalty is desired. relevant jpl reservoir storage per day consists of the diverted first tier return flow that reaches jpl reservoir (γ xd). revenue comes from three basic sources (jpl reservoir, crws, and llp), which are permitted to have different revenue rates (rjpl, rn, rs) in the milp. the revenue from jpl reservoir is calculated for the volume of water sold from jpl reservoir for the year (365 yjpl). the revenue on first tier return flow from crws that is sold to the northern region is denoted by yn. the revenue on volume sold to the southern region (ys) only comes from llp but is a mix of return flows and runoff. the objective in equation 1 is obtained by summing up the costs and subtracting the revenues. (1) in equation 2, the jpl reservoir expansion cannot exceed a user-specified maximum (w). in equation 3, the annual volume of first tier return flow that is diverted to jpl reservoir cannot exceed the annual volume of first tier return flows (v1). also, in equation 4, the diverted flow cannot exceed the available jpl reservoir expansion capacity, where the capacity of the jpl reservoir expansion (x) is reduced by the volume of runoff stored in the jpl reservoir expansion (rjpl (x, t)) and the volume of carryover stored in jpl reservoir from the previous year (ijpl(t)). currently, the carryover in year 1 is set to 0. but the value for the carry-over in year 1 is formulated as an input and can be set to any starting value. in equation 5, the volume of carryover for the current year is represented as a state transition equation, which is the difference between the aggregate of the volume of water carried over from the previous year, the firm yield of jpl reservoir, and the diverted flow reduced by channel losses and the volume of water sold from jpl reservoir. the firm yield is the minimum amount of water that can be diverted from a reservoir on an annual basis under the hydrologic conditions of the drought of record (1952–1957). it is more loosely defined as the reliable amount of water that a reservoir can produce through a severe drought. the runoff stored in the jpl reservoir expansion (rjpl(x, t)) depends on the available jpl reservoir expansion capacity and the year under consideration. the runoff stored in the jpl reservoir expansion is obtained by using a piecewise linear approximation on the lookup table provided by tra (impoundment targets from wam). (2) (3) (4) (5) in the milp model, we formulate decision variables that consider the expansion of jpl reservoir, which will enable selling from jpl reservoir to the northern region (yjpl). some fraction (β) of the volume sold to the northern region (365yjpl + yn) will return via crws and become second tier return flow. at that point, this flow must now go to llp. min cjpl x + cd(t) [sn(t) + ss(t)] – rjpl(t) [365 yjpl(t)] – rn(t) yn(t) – rs(t) ys(t) x ≤ w 365 xd(t) ≤ v1(t) 365 xd(t) ≤ 365 x – rjpl(x, t) – ijpl(t) ijpl(t+1) = ijpl(t) + (0.1x) + 365 γ(t) xd(t) 365 yjpl(t) input detail x increased volume of joe pool lake (jpl) reservoir xd (t) volume/day of first tier return flow diverted to storage in jpl reservoir yjpl (t) volume/day of water from jpl reservoir (mix of return flows and runoff) sold to northern region yn (t) volume of first tier return flow sold to northern region ys (t) volume from llp (mix of return flows and runoff) sold to southern region sn (t) slack variable for northern region demand ss (t) slack variable for southern region demand sjpl (t) slack variable for overflow in jpl reservoir ijpl (t) volume of water available at the start of the year in jpl reservoir (carryover) rjpl (x,t) salable runoff volume into jpl reservoir (table values from the water availability model are a function of year t and the size of the jpl reservoir expansion x) table 3. mixed integer linear programming formulation variables. 7 to prevent the milp from going unbounded and to make sure that only the available amount of water is sold, selling constraints are specified in equations 6, 7, and 8 for the amount sold to the northern region from crws (yn), the amount sold to the northern region from jpl reservoir (yjpl), and the amount sold to the southern region (ys). it is required that at least 30% of first tier return flows from crws must flow to llp. the first tier return flow volume from crws is the input v1. the first tier return volume that does not flow to llp consists of the volume from crws that is sold to the northern region (yn) and the volume diverted to jpl reservoir storage (365 xd). hence, the numerator in equation 6 is the first tier return flow that reaches llp. the 30% requirement in equation 6 subsequently restricts the volume that can be sold to the northern region annually (yn), as well as the volume that can be diverted to jpl reservoir per day (xd) (6) equation 7 presents equation 6 with a different format in milp form. (7) in equation 8, the volume sold to the southern region (ys) is limited by the first tier return flow that reaches llp, the volume available second tier return flows, and the amount of runoff in llp. (8) in equation 9, the volume sold to the northern region from jpl reservoir (yjpl) is limited by the firm yield of jpl reservoir, which is a function the expansion, the volume diverted to jpl reservoir storage (γ xd), and the volume of carryover stored in jpl reservoir from the previous year (ijpl(t)). (9) given water volume demand requirements for the northern and southern regions (dn and ds), constraints are needed to meet demand. these demand values are based on what tra has been able to sell historically or based on existing contracts. this is formulated as a hard constraint because tra cannot sell to more than the available pool of customers. the constraints are stated separately for the two regions, as in equations 10 and 11: (10) (11) in addition, it is desirable to satisfy customer demand. to avoid the instance of an infeasible solution, we have incorporated a penalty approach to encourage that demand is met. the penalty cost (cd) on failing to meet demand was seen earlier in the objective function in equation 1. the constraints to satisfy demand are stated separately for the two regions as equations 12 and 13, respectively: (12) (13) finally, bounds must be specified on nonnegative decision variables, as is presented by equation 14: (14) results and discussion the code was tested with different inputs to check whether the milp appropriately adjusts its optimal solution for different inputs. because the purpose of the milp is a hypothetical exploration, unrealistic parameter settings in the current system may be used in the milp. all runs were executed for the years 1940 through 1996, with this period of hydrological record chosen because it covers a scenario where there was at one time excess water in jpl reservoir, followed by a drought of record. this sequence of events could help determine whether the milp performs according to the purpose for which it was designed, i.e., storing water in jpl reservoir storage when excess water is available and selling it in years when there is deficit in supply. the cost for expansion per acre feet of jpl reservoir was identified by tra’s board and is an important input for jpl reservoir expansion. another input was the demand function based on the volume of available water to store in jpl reservoir (supply) and designed to mimic the demand function in real life. slack variables in equations 12 and 13 were used to track whether customer demand was met. if slack variables (sn(t),ss(t)) are positive, customer demand was not fully met, with the value of the slack variable equal to the volume of unmet demand. if the slack variables are zero, then customer demand was fully satisfied, but there may also be the possibility of surplus volume from jpl reservoir, crws, or llp. the milp was created using matlab, and the matlab runtime executable code has been made freely available to tra for its own use. yn (t)≤ 0.70 v1(t) – 365 xd(t) 365 yjpl(t) + yn (t) + sn(t) ≥ dn(t) x, xd(t), yn(t), ys(t), yjpl(t), sn(t), ss(t), ijpl(t) ≥ 0 ys(t) + ss(t) ≥ ds(t) 365 yjpl(t) ≤ (0.1x) + 365 γ(t) xd(t) + ijpl(t) 365 yjpl(t) + yn(t) ≤ dn(t) ys(t) ≤ ds (t) ys(t) ≤ v1(t) – [yn(t) + 365 xd(t)] + β(t) [yn(t) + 365 yjpl(t)] + rllp(t) texas water journal, volume 12, number 1 optimizing water supply through reservoir conversion and storage of return flow8 table 4. mixed integer linear programming scenario 1 inputs. input detail cjpl $88.82/acre-foot (ac-ft) for the first 20 years and no cost for the remaining years cd (t) $100/ac-ft/year rjpl (t) $95/ac-ft/year rn (t) $95/ac-ft/year rs (t) $95/ac-ft/year β (t) 0.50 γ (t) 0.89 rllp (t) fixed at 351,600 ac-ft/year dn (t) represented by black line in figure 3 w 123,100 ac-ft scenario 1 scenario 1 was a scheme devised by tra’s board. the inputs used for this scenario are specified in table 4. figure 3 shows the hydrology in jpl reservoir lake reservoir and the demand/supply scenario in the northern market. our results showed that expanding the jpl reservoir is not worthwhile because the cost of conversion is very high when compared to the revenue from jpl reservoir. even though there is unmet demand and penalty on the unmet demand, the milp chose not to convert jpl reservoir. figure 4 shows the cost and revenue for the entire system, including the northern and southern market. another result is that the payback period, assuming a cost of conversion per acre-foot of $88.82 and a revenue of $95 per acre-foot, was 170 years, as shown in figure 5. figure 3. joe pool lake (jpl) reservoir hydrology for scenario 1. texas water journal, volume 12, number 1 9optimizing water supply through reservoir conversion and storage of return flow figure 4. cost and revenue for entire system for scenario 1. figure 5. payback period calculation for scenario 1 (af – acre-feet). figure 6. joe pool lake (jpl) reservoir hydrology for scenario 2. texas water journal, volume 12, number 1 optimizing water supply through reservoir conversion and storage of return flow10 scenario 2 scenario 2 was performed as a theoretical exercise using a cost of expansion per acre-foot of jpl reservoir from the result of a break-even analysis and to test the functionality of the milp model. the break-even analysis identified the cost of expansion per acre-foot of jpl reservoir at which it would be feasible to expand the reservoir given the demand/supply scenario and revenue from expansion per acre-foot of jpl reservoir. the cost of expansion per acre-foot of jpl reservoir was determined to be around $20, so the milp was run with this input to check whether the milp performed as expected. table 5 shows the inputs used for scenario 2. the milp solution recommends expansion of the jpl reservoir to around 40,000 ac-ft, and figure 6 shows the hydrology in jpl reservoir and the demand/supply scenario in the northern market. our results showed that the excess water available when there was sufficient rainfall in the earlier years after meeting the demand was stored and carried over to the later years when there was a rainfall deficit. the results also showed that the demand was met using the additional carryover water when there was not enough water to meet the demand with just the first tier flowing. despite this compensation, there was unmet demand in a few years because there was not enough water available to carry over, due to most of the surplus water from earlier years figure 7. cost and revenue for entire system for scenario 2. figure 8. payback period calculation for scenario 2 (af – acre feet). table 5. linear programming scenario 2 inputs. input detail cjpl $20/acre-foot (ac-ft) for the first 20 years and no cost for the remaining years cd (t) $100/ac-ft/year rjpl (t) $95/ac-ft/year rn (t) $95/ac-ft/year rs (t) $95/ac-ft/year β (t) 0.50 γ (t) 0.89 arllp (t) fixed at 351,600 ac-ft/year dn (t) represented by black line in figure 6 w 123,100 ac-ft texas water journal, volume 12, number 1 11optimizing water supply through reservoir conversion and storage of return flow being used to compensate for the drought of record. another reason for this result is that there was an effective evaporation coefficient of 0.89 (or 89%) applied to the water stored in the reservoir, which in turn impacts the amount of water available to be carried over the water to the following years. figure 7 shows the cost and revenue for the entire system, including the northern and southern market. another result is that the payback period for scenario 2, assuming a cost of conversion per acre-foot of $20 and a revenue of $95 per acre-foot, was 40 years, as shown in figure 8. conclusion because of growing water demand and water shortage in the dallas-fort worth metroplex, tra is considering expanding the capacity of jpl reservoir. the two main sources for jpl reservoir are the natural stream flow and the return flow from the crws. based on these inputs, tra tries to meet the demand in dry years by creating additional storage and diverting excess water to the storage during wet years. the optimal conversion capacity of jpl reservoir was determined by modeling the hydrology of the different sources as an milp with the objective of minimizing the costs of expansion. several scenarios with different penalty costs and costs of expansion per acre foot of jpl reservoir were run to determine whether the designed milp could store sufficient water in jpl reservoir during wet years and sell it during a drought period. we presented two scenarios that yielded contrasting results in this paper. based on the data availability and scenario coverage, years 1940 through 1996 were chosen because there were wet years followed by a drought record for the example and testing timeline. in scenario 1, the expansion cost for jpl reservoir was taken as $88.82 per acre foot for the first 20 years with no cost for the remaining years. this model did not meet the requirements for expanding jpl reservoir storage because the expansion cost was too high in comparison to the penalty of unmet demand and selling revenue. in scenario 2, the cost of expansion per acre-foot of jpl reservoir, based on the payback period calculation, was set to be about $20. the model chose to expand the jpl reservoir to 40,000 ac-ft, implying that the model chose to save water during wet years and store it in the jpl reservoir to meet the demand during drought. even though the model attempted to meet water demand during dry years, there was still some unmet demand in the later years because there was not sufficient water to meet the demand. testing the milp with different scenarios demonstrates that the milp works and takes into consideration the different hydrology and inputs. funding sources this research was funded by tra and a national science foundation grant (cmmi #1926792). data availability some data, models, or code that support the findings of this study are available from the corresponding author, srividya sekar, upon reasonable request. data or code available on request are: • input data for scenario 1 and scenario 2; • output data for scenario 1 and scenario 2; • matlab code (.m) file; and • executable matlab file (.exe). references asgari-motlagh x, ketabchy m, daghighi a. 2019. probabilistic quantitative precipitation forecasting using machine 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yaghoubi et al. 2020 cromarty et al. 1982 ghimire 2014 usace n.d. demirel and wurbs 2015 haghiri et al. 2018 gheytaspour and habibzadeh bigdarvish 2018 asgari-motlagh et al. 2019 daghighi et al. 2020 eusuff and lansey 2003 ghahraman and sepaskhah 2004 daghighi et al. 2017 samani and mottaghi 2006 wurbs 2001 peak flow trends highlight emerging urban flooding hotspots in texas texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute volume 9, number 1 2018 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. cover photo: sunrise over coastal bend bays & esturaries program land. ©2017 john reuthinger. see winning photos at wildlifeinfocus.org http://texaswaterjournal.org http://wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, march 20, 2018 pages 18–29 abstract: in the aftermath of flooding disasters, a temptation is to pursue recovery while also dismissing the event as unlikely to recur. is it possible that underlying streamflow trends, which often avoid detection, help explain individual flooding episodes and should influence future expectations? how do impoundments (dams) affect these trends? our study provides a comparative analysis to answer these key questions that help determine whether flood planning will be successful. examining the 25 largest texas metropolitan areas, we assessed peak flow trends for stream gages having at least 25 years of data. of 181 total gages, 34 (18.8%) exhibited significant upward trends. over 85% of those with upward trends are located in the dallas-fort worth-arlington (17.6%) and houston-the woodlands-sugar land (67.6%) areas. approximately 62% of gages with upward trends are in harris county. among 84 sites impacted by impoundment, 11 (13.1%) still exhibited upward trends. these findings show that increasing peak flows underlie recent flooding in some areas, spotlighting streams in greatest need of examination. increasing peak flows in some locations even after impoundment suggest dams might not be a complete solution. finally, maintaining a robust monitoring network is critical to flood planning, and analysis is hampered when data are lacking. keywords: flooding, peak flow, streamflow, impoundment, planning peak flow trends highlight emerging urban flooding hotspots in texas 1ceo and principal scientist, simfero consultants, houston, texas *corresponding author: mberg@simferousa.com texas water journal, volume 9, number 1 matthew d. berg1* citation: berg md. 2018. peak flow trends highlight emerging urban flooding hotspots in texas. texas water journal. 9(1):18-29. available from: https://doi.org/10.21423/twj.v9i1.7068. © 2018 matthew d. berg. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:mberg@simferousa.com https://doi.org/10.21423/twj.v9i1.7068 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing http://orcid.org/0000-0002-0584-6393 texas water journal, volume 9, number 1 19peak flow trends highlight emerging urban flooding hotspots in texas terms used in this paper introduction when not bearing the load of extreme weather events, the rivers, creeks, bayous, and lakes in many portions of texas are often viewed as valuable community amenities—and rightly so (kulshreshtha and gillies 1993; wilson and carpenter 1999; mckean et al. 2005). but these peaceful periods conditions belie a lengthy historical dark side. texas has gained its reputation for flooding the hard way. the particular geographic and climatic setting of the state makes it vulnerable to some of the most intense precipitation events in the world, resulting in exceptional stream discharges and extensive landscape inundation (slade, jr. and patton 2003; o’connor and costa 2004; winters 2012; breaker et al. 2016; schumann et al. 2016). as a result, texas leads the nation in flood damages and averages more flood-related deaths than any other state (brody et al. 2008; costa and jarrett 2008; sharif et al. 2015). when the state’s waters invade homes, schools, businesses, roads, and other critical infrastructure, a frequent quick response is a loud call to action to prevent similar impacts in the future. even before the landfall of hurricane harvey in 2017, the texas legislature announced its interest in flood planning by releasing funds to the texas water development board in support of initial steps toward statewide coordination. such flood planning, while requiring thoughtful interregional cooperation for any real chance at success, is inherently and operationally a local endeavor (brody et al. 2008). measures to moderate floods may have widespread benefits, but the most pronounced impacts, both positive and negative, typically are site-specific. similarly, the causes of flooding are location-specific, dependent upon a suite of local characteristics (changnon et al. 2001; douben 2006). by analyzing historical streamflow data, it may be possible to highlight emerging hotspots in greatest need of preventative action—but only after a thorough investigation of specific local causes. streamflow trend analyses are common in texas and neighboring states for a variety of water resources needs, often including questions of water supply and water quality (esralew and lewis 2010; esralew et al. 2011). such studies frequently focus on mean values or minimums to meet critical resource needs, but there is also tremendous value in examining maximums for the purpose of flood planning. utilizing this approach allows us to compare different locations and supports resource prioritization for where the need is greatest. in some texas basins, particularly on major rivers, the construction of dams for various purposes has dramatically affected streamflows, from the creation and prolonging of flood-like hydrographs in areas upstream from such impoundments to large reductions in peak flows in others (asquith 2001; heitmuller and greene 2009; barbie et al. 2012; lucena and lee 2017). and while these impoundments can dramatically decrease peak flood magnitude downstream from their sites, dikes and levees often actually increase flood stage by reducing overall channel capacity (pinter et al. 2001; alexander et al. 2012). to develop a fuller understanding of statewide peak flow trends, it is important to account for the impact of impoundments on trends in peak flow. as efforts proceed to analyze flooding impacts and make specific recommendations, two critical questions emerge: 1) to what degree should we consider flood events as chance occurrences as opposed to part of deeper, developing trends; and 2) given the perceived popularity of dams as a flood mitigation solution, what has been the impact on peak flows of such structures already in place? acronym descriptive name usgs u.s. geological survey texas water journal, volume 9, number 1 peak flow trends highlight emerging urban flooding hotspots in texas20 methods to improve our understanding of the growing challenges posed by urban flooding in texas, we conducted a detailed analysis of streamflow trends in major cities across the state (figure 1 and table 1). for each of the 25 most populous metropolitan areas in texas (as designated by the 2010 united states census), we identified the u.s. geological survey (usgs) stream gages located in the counties comprising these areas (https://nwis.waterdata.usgs.gov/nwis/peak?state_cd=tx). within the designated metropolitan counties, we obtained streamflow data for each stream gage meeting the following 1) dallas-fort worth-arlington 14) waco 2) houston-the woodlands-sugar land 15) college station-bryan 3) san antonio-new braunfels 16) tyler* 4) austin-round rock-san marcos 17) longview 5) mcallen-edinburg-mission* 18) abilene 6) el paso* 19) wichita falls 7) corpus christi 20) texarkana* 8) brownsville-harlingen* 21) odessa* 9) killeen-temple-fort hood 22) midland* 10) beaumont-port arthur 23) sherman-denison 11) lubbock* 24) victoria 12) laredo 25) san angelo 13) amarillo table 1. the 25 largest texas metropolitan areas (as designated by 2010 united states census) used in this study. metropolitan areas marked with an asterisk (*) did not include any qualifying stream gages. 18 13 4 2 11 22 21 16 6 19 17 23 25 3 12 85 20 9 15 24 2 10 1 14 7 figure 1. the 25 most-populated texas metropolitan areas. differences in color are simply used to distinguish the boundaries of adjacent metropolitan areas. https://nwis.waterdata.usgs.gov/nwis/peak?state_cd=tx texas water journal, volume 9, number 1 21peak flow trends highlight emerging urban flooding hotspots in texas gage metadata). we then proceeded with the same mann-kendall and regression analyses. at certain sites, the entire period of record is impacted by impoundment. in these cases, the entire period of record is included in both the overall analysis and the impoundment analysis. in all analyses, we limited the data examined to the water year ending in 2016. this allowed us to both consider the most recent available full year of data and also exclude data associated with hurricane harvey. this decision was made to prevent the objection that upward trends are unduly influenced by catastrophic outlier events. results of the 181 stream gages we identified, a majority (65.7%) displayed no trend in peak flows over the period of record. a total of 28 (15.5%) actually exhibited significant downward trends, while 34 (18.8%) exhibited significant upward trends (figure 2). while all stations showed variability between years, many displayed clearly discernible patterns over time even before quantitative analysis (figure 3). when considering the geographic distribution of stream gages, a few observations are immediately apparent (figure 4). first, nearly all metropolitan areas are predominately characterized by stream gages exhibiting no trend in peak flows. in addition, nearly all areas host one criteria: 1) period of record at least 25 years; 2) period of record extends until at least 2010; and 3) most recent 10 years of data represent 10 consecutive years. we then performed non-parametric mann-kendall trend analyses using the annual peak streamflow measurements for each qualifying stream gage. two-tailed statistical tests were assessed for significance at α = 0.1 (lettenmaier et al. 1994; berg et al. 2016). streamflow data were used in favor of gage heights because these volume measures are considered to be absolute, more robust to changes in channel morphology and gage placement, and comparable between locations. we excluded historical data points outside the instrumental record due to the imprecise nature of their measurement and the problematic nature of including historical outliers in trend analysis. for those stream gages that yielded a significant trend in mann-kendall analysis, we computed the best-fit regression equation for the period of record. resulting regression equations were used to calculate relative changes in peak flows at each stream gage over the period of record. a number of stream gages across the state, particularly those on large rivers, are impacted by impoundment. to account for these effects on historical streamflow trends, we conducted a parallel analysis of these gages, truncating datasets to the period during which each site has been considered to be affected by regulation or diversion (usgs qualification code 6 in stream 119 (65.7%) 28 (15.5%) 34 (18.8%) all stations no trend down trend up trend figure 2. proportion of examined stream gages from all metropolitan areas exhibiting no statistically significant trends, downward trends, and upward trends in peak flow. texas water journal, volume 9, number 1 peak flow trends highlight emerging urban flooding hotspots in texas22 or two stream gages with streamflows that exhibit a downward trend. finally, the geographic distribution of upward trends is illuminating, with such stream gages in a small number of metropolitan areas and nearly entirely concentrated in dallas-fort worth-arlington (6 gages) and houston-the woodlands-sugar land (23 gages). approximately 85% of all stream gages with increasing peak flows are located in these two areas. examining the data at an additional level of geographic detail, the distribution of stream gages and those exhibiting trends is roughly equivalent across the counties of the dallas-fort worth-arlington area (figure 5a). however, the number of stream gages in the houston-the woodlands-sugar land metropolitan area is dominated by harris county, home to the city of houston. in harris county, an incredible 70% of stream gages exhibited upward trends (figure 5b). considering the data another way, harris county represents 16.6% of urban stream gages across the entirety of texas but a full 61.2% of gages with significantly increasing peak flows. when including the length of the instrumental record and examining the relative change in peak flows over time, it is clear that tremendous variation exists between stream gage sites (figure 6). among gage locations with significantly increasing peak flows, current peak flows ranged from 102.3% of those at the beginning of the historical record to nearly 6400%—a whopping 64-fold increase. taking into account the timing and magnitude of peak flow trends, the longest-running stream gages tend to be those with decreasing trends. these are sites on major rivers (e.g., colorado, brazos, concho, and neches rivers), and some of these today are characterized by peak flows that are essentially 0% of early historical peak flows. at the other end of the spectrum, those with the most rapidly rising peak flows tend to be found where stream gages have been installed more recently, in many cases within the last 50 years. of note, it is interesting that 12 of 13 of the fastest rising peak flow trends are found in harris county. for those stream gages impacted by impoundment, the proportion of upward and downward trends is somewhat similar to that in the overall analysis. of 84 affected locations, 22 (26.2%) exhibited significant trends, distributed equally between increasing and decreasing peak flow trends (figure 7a). a nn ua l p ea k fl ow (c ub ic f ee t p er s ec on d) 0 10000 20000 30000 40000 1960 1968 1976 1984 1992 2000 2008 2016 08105700 san gabriel river (williamson) (b) 0 3500 7000 10500 14000 1956 1966 1976 1986 1996 2006 2016 08075900 greens bayou (harris) (c) 0 20000 40000 60000 80000 100000 1928 1939 1950 1961 1972 1983 1994 2005 2016 08173000 plum creek (caldwell) (a) figure 3. examples of different peak flow patterns over time. no trend (a), downward trend (b), and upward trend (c). 0 10 20 30 40 50 n um be r o f s tre am g ag es no trend down trend up trend figure 4. number of examined stream gages exhibiting no statistically significant trends, downward trends, and upward trends in peak flow, separated by metropolitan area. texas water journal, volume 9, number 1 23peak flow trends highlight emerging urban flooding hotspots in texas 0 5 10 15 20 25 30 dallas-fort worth-arlington no trend down trend up trend 0 5 10 15 20 25 30 houston-the woodlands-sugar land no trend down trend up trend n um be r o f s tre am g ag es (a) (b) figure 5. number of examined stream gages in (a) dallas-fort worth-arlington and (b) houston-the woodlands-sugar land metropolitan areas exhibiting no statistically significant trends, downward trends, and upward trends in peak flow, separated by county. 0% 100% 200% 300% 400% 500% 600% 700% 800% 25 45 65 85 105 125 duration of instrumental record 1200% 2800% 4400% 6000% 08075780 greens bayou (harris) 08074800 keegans bayou (harris) 08075900 greens bayou (harris) 08072760 langham creek (harris) 08074500 whiteoak bayou (harris) 08074150 cole creek (harris) 08074250 brickhouse gully (harris) 08075500 sims bayou (harris) 08076000 greens bayou (harris) 08177700 olmos creek (bexar) 08075400 sims bayou (harris) 08073700 buffalo bayou (harris) 08072730 bear creek (harris) c ha ng e in a ve ra ge p ea k fl ow s ( en d of r ec or d as a p er ce nt ag e of b eg in ni ng o f r ec or d) 0% 1000% 2000% 3000% 4000% 5000% 6000% 25 75 125 figure 6. relative change in peak flows (as a percentage of initial values) for those stream gages exhibiting significant trends over the period of record. the horizontal line at 100% separates increasing trends above and decreasing trends below. inset at right displays the same data with an unbroken vertical axis and unmodified scale to visualize very high values. texas water journal, volume 9, number 1 peak flow trends highlight emerging urban flooding hotspots in texas24 in contrast with trend magnitudes over time among all gages (figure 6), the range of increases among this subset is much smaller, reaching a maximum of 372% (current peak flows compared with peak flows immediately following impoundment). again, harris county features prominently, with three different buffalo bayou stream gages experiencing some of the greatest increases in peak flows since upstream impoundment (figure 7b). discussion increasing peak flows we found that, in most of the largest metropolitan areas across texas, increasing trends in annual peak flows are rare and are actually outnumbered by decreasing trends. however, some trouble spots become clear. nearly all of those urban streams with increasing peak flows are located in only two metropolitan areas, with the vast majority located within a single county (harris) of one single region (houston-the woodlands-sugar land). all of these stations are within the buffalo bayou basin. identifying and comparing such emerging flooding hotspots must be a part of any statewide efforts to mitigate flooding impacts. of greatest importance, what do these results mean? principally, we must understand that an upward trend in peak flows does not necessarily equate to flood frequency or severity. if a stream regularly fills only a small portion of its channel, then even a sizable increase may be manageable, with flood damage remaining minimal. however, if such increases are sustained over years (or decades) the margin between peak flows and flood impacts narrows—or worse. in many places, stream channel capacity changes over time, whether through natural processes or planned efforts to increase stormwater conveyance. however, unless such capacity increases occur along the entire length of a stream, increasing flows will eventually cause problems downstream where channel enlargement has not occurred. likewise, a lack of increasing trends does not indicate that floods do not occur nor even that they are not increasing. increasing flood frequency or severity may still be possible even when mean peak flows themselves are not significantly increasing. take, for example, the case of usgs gage 08158700 (onion creek at driftwood in hays county, figure 8). at this location, the highest of peak flows do appear to exhibit an upward trend, while an increasing number of very low peak flows balances the highest peak flows, resulting in no overall increasing trend. such apparent increasing variability poses significant challenges to development, management, and the environment (ahn and merwade 2014; kelly et al. 2016). with that established, identifying trends helps us see past individual flood events for a more comprehensive, deeper story. only then can we begin to understand and ask bigger questions of the mechanisms behind stream dynamics in and near urban areas. this is an important component of successful planning and focuses on addressing root causes, not being lured into addressing symptoms. just as steadily rising temperatures send us to a doctor to accurately diagnose the cause before prescribing a solution to the symptoms, steadily rising 08074000 buffalo bayou (harris) 62 (73.8%) 11 (13.1%) 11 (13.1%) impacted stations no trend down trend up trend 0% 100% 200% 300% 400% 25 45 65 85 105 a xi s t itl e years since impoundment 08047500 clear fork trinity river (tarrant) 08073700 buffalo bayou (harris) 08073600 buffalo bayou (harris) c ha ng e in a ve ra ge p ea k fl ow s (e nd o f r ec or d as a p ro po rti on o f b eg in ni ng o f r ec or d) (a) (b) figure 7. summary data for stream gages impacted by impoundment in all metropolitan areas. proportion of stream gages exhibiting no statistically significant trends, downward trends, and upward trends in peak flow (a). relative change in peak flows (as a percentage of initial values) for those stream gages exhibiting significant trends over the period since impoundment (b). the horizontal line at 100% separates increasing trends above and decreasing trends below. texas water journal, volume 9, number 1 25peak flow trends highlight emerging urban flooding hotspots in texas peak flows should lead us to dedicate time, care, and detail in assessing flooding causes to ensure we pursue the right remedy. anything short of this would miss an opportunity to provide adequate change, potentially with damaging consequences. if a stream exhibits consistent increases in peak flows year after year, that raises eyebrows. if such trends are seen at a number of different locations in the same part of a single region of the state—all within the same small river basin—this should raise a series of key questions. if that particular part of texas (harris county) is home to most of the increasing peak flows in the state, what might be driving these changes not seen elsewhere? among texas counties, harris county by far is home to the greatest number of long-running usgs stream gages, yielding a comparatively large dataset for this study. in addition, the harris county flood control district itself has an extremely robust rainfall and streamflow monitoring program (https://www.harriscountyfws.org/). that there is such a dense data collection network speaks to the long-perceived need to understand flooding in the region. indeed, the area boasts a very large urban population and associated infrastructure, exhibits very low slopes, is typified by a climate prone to intense tropical downpours, and features a concentration of low-permeability soils. as a result, this region has experienced some of the most devastating historical floods in the state. all of these local traits point to an inherent vulnerability to high streamflows. however, the proportion of local stream gages with upward peak flow trends, not just the total number, is much larger than in any other urban area, so we must consider other factors. some of the large number of increasing trends in and immediately surrounding houston are due to multiple gaging stations on certain streams (e.g., greens bayou and buffalo bayou, figure 6), where individual gages reflect systematic and correlated changes along entire water bodies. not coincidentally, these streams also have reputations as recurring trouble spots. however, that many streams in this area prone to flooding— each of which is a tributary of buffalo bayou—also display increasing trends in peak flows should draw major attention. systematic increases suggest an underlying regional mechanism driving these changes. what could that be? soils themselves do not evolve on annual timescales. there is some evidence that the frequency and intensity of downpours is increasing locally (berg, in preparation). while slope changes do not occur at the watershed scale in human timescales, they might occur within streams themselves, particularly along segments where channel straightening has taken place. this process can serve to accelerate the removal of water from some locations but to deliver larger, faster flows downstream to points where the capacity to receive higher streamflows does not exist. of note, already by the early 1980s, studies indicated an increase in storm runoff in highly developed parts of the houston area compared with prior decades (liscum and massey 1980; liscum et al. 1987). the exact response of local hydrology to urbanization varies among metropolitan areas, but this is consistent with findings in watersheds near austin (veenhuis and gannett 1986) and with principles of urban hydrology (niemczynowicz 1999; brown et al. 2009; fletcher et al. 2013). to guide regional drainage design, more recent studies of the houston area indicated a need to account for significant increases in peak streamflow as the degree of watershed development increases (asquith et al. 2011). however, our findings indicate that these increasing peak flow trends have continued and even accelerated. identifying the drivers in play in multiple specific locations is beyond the scope of this study. to further untangle the specific place-based drivers of increasing peak flow trends where they exist, we recommend a thorough clarification of local rainfall-runoff relationships, maintaining a very high level of spatial resolution and documenting changes with as much temporal resolution as possible. impoundment impacts in the aftermath of severe flooding, a common response is to call for new dams and associated reservoirs to store floodwaters and reduce downstream impacts. this was a favorite approach among most of the state’s large rivers, many of which were dammed relatively early in the state’s history to address flooding and meet other needs. our findings indicate that in some cases, this has paid major dividends in reducing peak flows. those stream gages with the longest period of record (major rivers) typically have decreasing peak flow trends compared with historical levels (figure 6). in a small number of cases, impoundment occurred even before stream gages were installed, obscuring the true impact of such streamflow regulation. as a result, 0 4500 9000 13500 18000 1980 1989 1998 2007 2016 08158700 onion creek (hays) a nn ua l p ea k fl ow (c ub ic f ee t p er s ec on d) figure 8. peak flow history for stream gage 08158700 onion creek in hays county (austin-round rock-san marcos metropolitan area). though not exhibiting a statistically significant trend in peak flows overall, this site does reveal some interesting dynamics among very high and very low values. https://www.harriscountyfws.org/ https://www.harriscountyfws.org/ texas water journal, volume 9, number 1 peak flow trends highlight emerging urban flooding hotspots in texas26 the proportion of impounded streams with either downward or upward trends may actually be slightly higher. with these observations, it would seem that reservoirs have a key place as part of a comprehensive flood control strategy. however, great caution is urged here. impoundment has major economic, political, agricultural, and ecological drawbacks, sometimes extreme. if the goal is merely to reduce peak flows, then this can be effective, but with the tradeoffs of displaced landowners and communities, reduced recreation, curtailed fisheries productivity, decreased soil fertility for agriculture, and increased evaporative losses (garcía et al. 2011; maestre-valero et al. 2013; veilleux 2013; auerbach et al. 2014; null et al. 2014; stafford et al. 2017;). the decision to rely upon flood control reservoirs as a primary strategy must be made only after considering a large suite of priorities; priorities that are often in competition with one another. in considering these costs, many jurisdictions increasingly have decided to forego such projects (poff and hart 2002; o’connor et al. 2015). even when implemented, impoundment does not guarantee permanently suppressed peak flows (figure 7). additionally, gaging stations impacted by impoundment actually exhibited a slightly lower frequency of downward trends in peak flows (13.1%) than did stations not impacted by impoundment (17.5%, figure 9). while modern peak flows may no longer match historical pre-impoundment extremes, many sites impacted by impoundment yet exhibit significant increases in peak flows, in one case increasing to almost 400% of post-impoundment peak flows. in fact, as many sites exhibit increasing peak flow trends as do those exhibiting decreasing trends. and, logically, if streams are already impacted by upstream impoundments, the potential for further benefits from additional impoundment is limited. of the 181 stream gaging stations examined in this study, 84 (46.4%) currently are affected by impoundment. constructing flood storage reservoirs in remaining locations may prove extremely difficult, given that many of these locations are in highly developed, urbanized watersheds with limited open space. a further caution on the reliance on dams for flood mitigation is the so-called levee effect. in many cases where engineered structures are installed, earthen or otherwise, damages behind these structures can actually increase (tobin 1995; burton and cutter 2008; di baldassarre et al. 2015). shifting expectations, loss of institutional memory of past events, and a perceived elimination of risk can result in catastrophic losses when upstream dams fail or are forced into emergency operations. one can see similarities with the events along buffalo bayou, which experienced severe and sustained flooding during and after hurricane harvey. clear and aggressive communication of not just current risk but also past events can help prevent widespread underestimation of vulnerability. an increasing number of economic analyses is recognizing the value (if not complex difficulty) of accepting and adapting to the reality of periodic flooding in improving long-term viability of community development (eakin and appendini 2008; merz et al. 2009; brody and highfield 2013). in short, reservoirs by themselves are not a silver bullet when it comes to flood mitigation. as an interesting last note on the impact of impoundment on peak flows, consider the difficulty of maintaining lower peak flows below a reservoir when the inflows to the reservoir exhibit extraordinary increases year over year. of the largest upward trends in this study, two gages (on langham creek and on bear creek) are the major tributaries to addicks reservoir in harris county. this flood control reservoir figured into severe flooding impacts both upstream and downstream of the critical u.s. army corps of engineers dam adjacent to buffalo bayou. it is much easier for impoundments to store flood flows when these flows are not rapidly increasing on an annual basis. thus, relying on large impoundment projects alone likely will not achieve success and again points back to our central emphasis of identifying causes, not just symptoms. challenges and needs peak flow frequency estimates can be computed with relative ease for natural, unregulated catchments in various areas 57 (58.8%)17 (17.5%) 23 (23.7%) unimpacted stations no trend down trend up trend figure 9. proportion of examined stream gages not impacted by impoundment from all metropolitan areas exhibiting no statistically significant trends, downward trends, and upward trends in peak flow. texas water journal, volume 9, number 1 27peak flow trends highlight emerging urban flooding hotspots in texas of texas, even those without stream gages (heimann and tortorelli 1988; asquith and slade, jr. 1997; asquith 1998; asquith and slade, jr. 1999). at the same time, identifying baseline conditions for assessing streamflow trends can be a difficult task, especially when historical data are lacking (tortorelli and mccabe 2001; esralew 2010; harwell and asquith 2011). furthermore, some such exercises yield single numbers that essentially assume a stationarity that, given our results, does not seem to be accurate (sivapalan and samuel 2009). in light of our findings, these challenges of uncertainty and watershed change generate complicated philosophical questions, such as: what does the concept of a 100-year floodplain even mean for a stream in which peak flows are 6400% of those just a couple decades ago? if peak flows in reservoir tributaries display strongly increasing trends, does it make sense to build a reservoir—within a reservoir? finally, we point to the eight of 25 largest metropolitan areas in texas that have no long-term stream gaging stations, significantly hampering our ability to draw conclusions from these areas. we acknowledge that many complex variables go into decisions on stream gage placement (e.g., local population, exposure to economic impacts from floods, contributing drainage area, annual precipitation, precedent of historical events, funding availability), while also highlighting the irreplaceable value of long-term records. by focusing on urban areas in this study, we by no means intend to diminish the importance of flood damage of any degree to homes, schools, businesses, and the lives of individuals and families that do not happen to be located within metropolitan counties. indeed, many of the costliest floods and many of the counties exposed to repeated floods are those outside designated metropolitan areas (brody et al. 2008). in many instances, locations both within and outside of metropolitan areas are impacted by the same flood events and can provide advance notice of imminent threats to communities downstream. metropolitan areas were simply chosen due to generally higher concentrations of population and property values in these areas, and, more importantly, the greater abundance of usable data. we applaud the recent steps by the usgs and texas water development board to expand the coverage of both stream and rain gages (aquastrategies and vieux 2016). as our analysis excluded a number of stations with long records that nevertheless ended years ago, we also emphasize the critical importance of not just adding new gages but maintaining existing gages in place for robust historical datasets. this will pay dividends for urban and rural communities alike. that the trends described here are apparent even without the addition of data from hurricane harvey emphasizes our core message: that trends, not just events, matter. when data are incorporated from the water year that includes this tropical system, many of the increasing trends in this analysis become even more pronounced and some gages exhibiting no trends begin to exhibit significant upward trends as well. conclusions a common response to severe flooding is to focus on individual events, isolated from temporal context and historical trends. our findings suggest that this tendency is at best incomplete and a recipe for missed opportunities. we encourage decision makers to see past the events to the real trends and to resist the temptation to view floods—even the most catastrophic of disasters—as dismissible as one-off tragedies, unavoidable forces of nature, or acts of god, particularly when long-term trends paint a clear picture of increasing peak flows. similarly, we further encourage flood planning efforts to look beyond the mere symptoms of flooding to consider and address the root causes of floods themselves. when significant increases in peak flows have been observed for many years, there is a deeper story that demands attention. without this dedicated attention, flood mitigation planning efforts likely will not be successful. as solutions are developed, we also suggest against an overreliance on flood storage reservoirs. finally, we urge the full maintaining of financial and technical support for streamgaging stations so that we can continue to build on the long-term records of historical sites, include additional sites as their periods of record increase, and position new sites where growing urban footprints may experience—or contribute to—flood impacts. acknowledgments the author wishes to thank the anonymous reviewers who provided helpful feedback, and whose time investment helped improve the final version of this manuscript. references ahn k-h, merwade v. 2014. quantifying the relative impact of climate and human activities on streamflow. journal of hydrology. 515(supplement c):257-266. alexander js, wilson rc, green wr. 2012. a brief history and summary of the effects of river engineering and dams on the mississippi river system and delta. reston (virginia): u.s. geological survey. report no. 1375. aquastrategies, vieux. 2016. recommendations for new stream and rain gages in texas. final report. grant no. 1600012027. asquith wh.1998. 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e, fey n, vaske jj. 2017. quantifying whitewater recreation opportunities in cataract canyon of the colorado river, utah: aggregating acceptable flows and hydrologic data to identify boatable days. river research and applications. 33(1):162-169. tobin ga. 1995. the levee love affair: a stormy relationship? journal of the american water resources association. 31(3):359-367. tortorelli rl, mccabe lp. 2001. flood frequency estimates and documented and potential extreme peak discharges in oklahoma. reston (virginia): u.s. geological survey. report no. 2001-4152. veenhuis je, gannett dg. 1986. the effects of urbanization on floods in the austin metropolitan area, texas. austin (texas): u.s. geological survey. report no. 86-4069. veilleux jc. 2013. the human security dimensions of dam development: the grand ethiopian renaissance dam. global dialogue (online). 15(2):42. wilson ma, carpenter sr. 1999. economic valuation of freshwater ecosystem services in the united states: 1971–1997. ecological applications. 9(3):772-783. winters ke. 2012. floods in central texas, september 7-14, 2010. texas water journal. 3(1):14-25. public attitudes toward water management and drought in texas texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 4, number 2 2013 texas water journal http://texaswaterjournal.org volume 4, number 2 2013 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: as texas continues to face water challenges and drought, many communities are seeking to conserve water in various sectors, including lawn and landscape water use. ©jose manuel gelpi diaz, crestock http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 4, number 2, pages 47–61 abstract: water management in texas is increasingly salient as the population grows, water supplies continue to be taxed and the planet continues to warm, resulting in more severe, widespread, and frequent droughts in the state. public support, though, is often essential for governments to enact large-scale projects, like those that may be needed to tackle water management issues. given the challenges facing the state of texas, surprisingly few studies explore public attitudes, preferences, and risk assessments about water-related resource allocations. will the public act to direct or limit the actions of its elected officials on water issues? is the public ready to consider policies, regulations, and expenditures concerning the potential impacts of increased drought frequency on texas water resources? we report the results of 2 public opinion surveys of the citizens of texas that focused on water management and drought issues. we found that the public is willing to support government efforts to manage water, but not if these efforts negatively affect the environment or agriculture. keywords: water management, drought issues, public attitudes, risk assessments, texas drought james w. stoutenborough1, arnold vedlitz2* public attitudes toward water management and drought in texas 1 assistant professor, department of political science, university of alabama, huntsville, alabama 2 professor and bob bullock chair in government and public policy, the bush school of government and public service; director, insti-tute for science, technology and public policy, texas a&m university, college station, texas * corresponding author: avedlitz@tamu.edu texas water journal, volume 4, number 2 citation: stoutenborough jw, vedlitz a. 2013. public attitudes toward water management and drought in texas. texas water journal. 4(2):47-61. available from: https://doi.org/10.21423/twj.v4i2.6354. © 2013 james w. stoutenborough, arnold vedlitz. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:avedlitz%40tamu.edu?subject= https://doi.org/10.21423/twj.v4i2.6354 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 4, number 2 48 public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas as the planet continues to warm, texans will need to adapt to their changing environment. in addition to problems such as rising sea levels and more extreme weather events, scientists predict many parts of the world are more likely to experience longer, more intense droughts (e.g. ipcc 2007). vast expanses of texas are included in these drought zones (e.g. banner et al. 2010; seager et al. 2007; yu et al. 2006). complicating things, the aquifer that texas draws much of its water from, the high plains aquifer, has decreased by 27% in the last half century (lubick 2004). consequently, droughts have the potential to radically alter the way of life for texans. the texas government will need to become more involved in water management. however, public support is often a necessary ingredient for political action. studies consistently find that policy-maker decision-making tends to mirror the preferences of the public (e.g. burstein 2010). if the public does not support a policy, it is very difficult for elected officials to find the will to act. understanding public attitudes toward an issue is an indispensable step toward legislating it. however, there are surprisingly few studies that explore public attitudes toward water issues. will texans act to constrain the actions of their elected officials? are texans ready to consider policies, regulations, and expenditures that address their water supply? in this paper, we report the results of 2 recent public opinion surveys that focused on water management and drought issues in texas. first, we describe our survey. second, we place water issues in their appropriate context. third, we explore general water views. fourth, we investigate drought attitudes. fifth, we survey attitudes toward government response to these issues. finally, we discuss the implications of this project. research methods we conducted 2 public opinion surveys of adults in texas. the first survey was administered from 21 february 2013 to 12 march 2013 and resulted in 410 completed surveys for a 49.4% completion rate. the second survey, with identical questions, was in the field from 2 april 2013 through 16 april 2013 and resulted in a total of 412 completions for a completion rate of 38.6%. both surveys were administered online by gfk (formerly knowledge networks). the 2 samples were drawn from knowledgepanel®, a probability-based web panel designed to be representative of texas for adults age 18 and over. descriptive statistics for the demographic characteristics of the samples can be found in appendix a. the median survey completion time was 27 minutes. because there were no major water-related emergencies between the 2 surveys, we report the pooled results to simplify the presentation1. 1 the texas legislature was acting on several water-related policies during this time, which generated some press. however, it is unclear if this coverage results comparing water to other issue domains to understand attitudes on an issue, it is important to place them in their appropriate context. texans may not view water issues as important in relation to other issues. if so, all of the subsequent opinions and attitudes should receive a lower priority. without proper context, it is difficult to discern what these attitudes mean and whether policy-makers should act on them. we used 2 methods to contextualize water issues in texas. first, respondents were asked to identify their level of concern for different issue domains2. the mean levels of concern for each of the issues are illustrated in figure 1. we found 5 issue domains — jobs and economic growth, government spending/national debt, health care, terrorism and national security, and water quality and availability — weigh most heavily on the public with a mean concern greater than 7. water quality and availability is the fifth most concerning issue. on average, the public would rate water issues a 7.07 on this scale. texans are more concerned than not about water issues, and they are was out of the ordinary or if it became salient to the lay person. to ensure this was not a concern, we conducted t-tests for several questions, none of which identified a significant difference between the means of the two samples. additionally, a texas tribune poll indicates that, when compared to other important issues, water was a lower priority than the others (blank and henson 2013), which suggests that these legislative activities may not have been particularly salient or at least that they are not dominating the public’s attention. 2 the scaling for all of the survey questions is from lowest to highest. specific question wording can be found in appendix b. figure 1: comparing public concern for water quality & availability against other issue domains 0 1 2 3 4 5 6 7 8 9 10 m ea n figure 1. comparing public concern for water quality and availability against other issue domains. texas water journal, volume 4, number 2 49public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas generally more concerned about water than many of the other issues, which suggests that water quality and availability is an important issue3. the second manner of comparing water to other issues relates to perceptions of responsibility. who is responsible for handling a given policy domain? in our federal system, there are realistically only 4 types of institutions that can manage a major public issue — the federal government, state governments, local governments, or the private sector. we asked respondents to indicate how responsible each institution was for handling 4 policy domains: public education, homeland security, energy, and water. as presented in figure 2, we found that water policy is believed to be the responsibility of state and local governments4. this distribution resembles that found with public education where the federal government and private sector are expected to take a back seat to state and local institutions. this distribution differs from homeland security where responsibility begins with the federal government and decreases with each lower level of government. respondents 3 this interpretation differs from those drawn from the texas tribune poll (blank and henson 2013). the difference lies in the different approaches to the questions used in these interpretations. the texas tribune question forced respondents to identify the most important issue facing texas and did not allow a respondent to indicate whether any other issues are important or not. our question allowed a respondent to indicate importance through their level of concern for each of the issues. however, we are unable to definitively say that any one is the single most important issue because that is not what we asked, just as the texas tribune poll did not ascertain whether any other issues were important, and if so, how important because that is not what their question asked. 4 while some areas of water policy are the responsibility of quasi-state entities, like river authorities, we were primarily concerned with the public’s overall expectation for water policy. generally prefer the state to handle energy issues, but barely more so than the federal government. however, energy policy represents the most clustered distribution with the smallest difference between the most responsible institution and the least responsible. this differs from water policy, where state and local governments are clearly favored. overall, this suggests that attitudes concerning water issues are most applicable to state and local governments. general water perceptions preconceived notions and general attitudes will influence perspectives toward water management and drought. by understanding what texans generally think about these issues, we will be able to interpret better their more specific attitudes. we began with an examination of water use. does the public find certain water uses to be more important than others? we asked respondents about 8 water uses, which are presented in figure 3. the most important uses of water are drinking, household use, natural environment, and agriculture. conversely, industrial use, recreation, and landscaping uses are of lower importance. municipal landscaping is viewed as the least important use of water and is the only use that is in the lower half of the scale. we asked respondents about water availability and their willingness to conserve water. the results can be found in table 1. we found that texans are generally not optimistic about their current and future water needs, as both have means in the lower half of the scale (mean less than 2.0). however, they are less pessimistic about their current water needs than their long-term needs. though the public does not believe that the economy is more important than the environment in water figure 2. comparing perceptions of responsibility for water policy against other policy domains. figure 3. public views on the importance of various water uses. texas water journal, volume 4, number 2 50 public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas planning, it generally believes that fish and wildlife habitats and the economy are of equal importance. respondents also disagree with cities diverting water from rural areas, even when in need. this suggests that the public would much rather conserve water than risk hurting agriculture. will texans conserve water, and under what conditions will they do so? also in table 1, we found that the respondents recognize that issues related to water availability affect them personally, which suggests saliency. on average, the public prefers government mandates of water restrictions over hoping individuals will act responsibly through voluntary measures, even though most people believe that conservation is convenient5. we also found that when framed in different manners, the public is willing to conserve water. specifically, on average, texans will conserve to lower their water bill, protect the environment, for agricultural uses, and under extreme drought 5 the midpoint of the scale is a 2.0. values lower than this indicates that the public is, on average, less agreeable to the option. values higher suggest that, on average, the public is more agreeable. conditions. texans are almost evenly divided on conserving for industrial uses, with respondents barely more likely to conserve than not. finally, we asked respondents to identify what they believe to be the most important water-related issue. the results are illustrated in figure 4. we found that 67.33% indicated that they believe water quantity, or drought, is the most important issue. 18.81% believe water distribution, or providing enough water, is the most important issue. finally, 13.86% consider water quality/pollution as the most important issue. clearly, the public is more concerned about water quantity than distribution or quality. drought options with water attitudes in their appropriate context, we turn to public drought perceptions. given the likelihood of increased frequency and intensity (e.g. ipcc 2007), droughts are likely to be a greater water management concern to the people of table 1. public perceptions of water availability and willingness to conserve water. strongly disagree disagree neither disagree nor agree agree strongly agree mean water conservation for fish/wildlife habitat and economic growth are equally important 2.48 10.41 32.34 45.60 9.17 2.48 there is enough water in my state to meet current needs 9.05 26.02 29.99 30.86 4.09 1.94 cities should be able to divert water from rural areas if they need more water 6.08 24.57 42.18 23.45 3.72 1.94 in water planning, the economy is more important than the environment 8.67 28.87 39.28 18.96 4.21 1.81 household water restrictions should be voluntary rather than mandated by the government 10.79 32.88 33.00 16.50 6.82 1.75 there is enough water in my state to meet future needs 13.37 31.68 34.03 18.07 2.85 1.65 i am willing to conserve water under extreme drought conditions 0.99 0.74 9.75 43.58 44.94 3.30 i am willing to conserve water to lower my water bill 1.24 2.22 16.69 58.47 21.38 2.96 i am willing to conserve water to protect the environment 1.85 2.22 20.27 54.64 21.01 2.90 i am willing to conserve water for agricultural uses 1.00 3.61 25.37 53.61 16.42 2.80 i am willing to conserve water for industrial uses 3.71 18.94 45.92 26.86 4.58 2.09 making efforts to conserve water is inconvenient 12.38 42.08 25.12 18.44 1.98 1.55 the issues related to the conservation and availability of water do not affect me 31.72 39.03 21.69 5.82 1.73 1.06 values are percentages, except the mean. the mean is calculated using a coding scheme from 0 (strongly disagree) to 4 (strongly agree). a 2.0 represents the midpoint of the scale. texas water journal, volume 4, number 2 51public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas figure 4. the most important water related issues. texas. texas officials have 2 basic options — be proactive or reactive. since governments can be constrained by a lack of public support, understanding public attitudes and beliefs with regards to droughts is important. an informed citizenry is a necessary step toward gaining public support on the issue. studies indicate that knowledge is an essential component of problem-solving (e.g. hmelo-silver 2004). additionally, ostrom (2007) argues that imperfect information increases the likelihood of selecting improper strategies to solve problems. we asked respondents their level of agreement with potential causes of droughts or water shortages, which are found in table 2. on average, texans agree that all 5 of these potential causes are likely responsible for drought conditions or water shortages in texas. the public is most convinced about the impact of short-term changes to rainfall. we also wanted to know if attitudes reflected those outlined by the intergovernmental panel on climate change (2007). do texans believe droughts are becoming more common and more severe? table 3 presents the results of this assessment. the majority of texans believes droughts are occurring more frequently, while a slim majority believes they are as severe as they have always been. however, a substantial minority, 45.29%, believes droughts are more severe. less than 5% of texans believe droughts are less severe or less frequent. several water-related risks have been linked to droughts (ndmc 2013). does the public recognize the likelihood of these risks? we asked respondents to evaluate the likelihood strongly disagree disagree neither disagree nor agree agree strongly agree mean short-term changes in annual rainfall levels 0.99 2.41 11.61 51.42 33.57 3.14 increased demand from water users 1.70 7.66 26.10 51.63 12.91 2.66 climate change 7.40 9.25 25.46 38.69 19.20 2.53 inadequate management of water resources 1.99 11.51 39.49 37.50 9.52 2.41 overuse of water 2.27 14.63 32.67 41.05 9.38 2.40 values are percentages, except the mean. the mean is calculated using a coding scheme from 0 (strongly disagree) to 4 (strongly agree). a 2.0 represents the midpoint of the scale. table 2. public perceptions of the cause of droughts or water shortages less same more mean are droughts in your region becoming more common, less common, or continuing to occur at the same rate? 2.28 42.88 54.84 1.52 are droughts in your region becoming more severe, less severe, or continuing to occur with the same severity? 3.57 51.14 45.29 1.41 values are percentages, except the mean. the mean is calculated using a coding scheme from 0 (less) to 2 (more). a 1.0 represents the midpoint of the scale.. table 3. public perceptions on drought occurrence and severity texas water journal, volume 4, number 2 52 public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas of 8 risks, which can be found in table 4. we found that the public is, on average, likely to recognize the possibility of each of these risks during drought conditions. risk perceptions are strongest for increased food prices, water costs, and fires. while still perceived as more likely than not, texans report the threat to water quality as the least likely of these risks. government response to drought since water is typically distributed through public utilities, it is the government’s responsibility to prepare for and/or respond to drought conditions to ensure an adequate supply of water. given the decreasing supply of water and increasing demand, governments are facing some potentially costly investments to secure long-term water security (see epa 2002). if public support is a necessary component for government action, what actions will the public support? the first step toward understanding the public’s preferences for government response is to determine which water use should be the first to conserve. as illustrated in figure 5, a slim plurality, 32.51%, believe that cities should be the first to reduce water use. this reflects the results in figure 3, which found that municipal water uses are the least important. in a close second, 32.39% think that they, themselves, should be the first to reduce. interestingly, the difference between first and third is only 1.23%, as 31.28% of texans believe industry should be the first to reduce. finally, consistent with previous question batteries, only 3.82% think that agriculture should be the first to reduce its water use. with figure 5. which water use should be reduced first? figure 6. favorability of short term drought strategies by cities. very unlikely somewhat unlikely unsure somewhat likely very likely mean increased food prices 2.23 2.36 16.50 41.69 37.22 3.09 increased water costs 2.22 1.73 17.31 41.66 37.08 3.09 increased fires 2.73 4.22 22.08 38.21 32.75 2.94 increased water-user conflicts 2.48 3.22 32.71 39.53 22.06 2.75 damage to animal and plant species 3.95 7.65 27.28 37.04 24.07 2.69 loss of recreational activities 4.09 8.80 35.69 33.71 17.72 2.52 disruption of water supplies 3.95 10.62 35.56 32.72 17.16 2.48 reduced water quality 5.82 11.76 40.10 26.49 15.84 2.34 values are percentages, except the mean. the mean is calculated using a coding scheme from 0 (very unlikely) to 4 (very likely). a 2.0 represents the midpoint of the scale. table 4. perceptions of the likelihood of drought risks. texas water journal, volume 4, number 2 53public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas the exception of agriculture, texans are evenly divided as to who should be the first to reduce water use. cities often have limited available options when facing a drought. we wanted to understand what actions the public would support in response to a short-term drought. figure 6 presents the public’s favorability toward potential strategies. not surprisingly, the public is generally in favor of limiting the use of water on private and public lawns. this is also consistent with what we found in figure 3. texans also favor limiting water use by industry. even in short term situations, the public is less favorable toward diverting water from agriculture to use in a city. cities also have the ability to prepare for droughts. however, these projects are often costly, and it is not clear the extent to which the public would support these projects6. public support for future drought strategies is found in figure 7. tex6 not all of these projects are costly. for instance, the cost associated with raising water prices and conservation is limited. however, the cost of investing in infrastructure projects can be quite large. the epa (2002) predicts that cities will need to invest more than $274 billion between 2000 and 2019 to ensure adequate levels of drinking water, and this does not include the estimated $388 billion needed for clean water. these numbers will only increase as the population continues to increase, and as the public migrates to arid or semi-arid areas, including texas, where the supply of water is already stressed. figure 7. favorability of future drought strategies by cities. ans are generally supportive of all of these long-term strategies except permanently transferring water from farms to cities and increasing water rates. respondents are most supportive of reusing treated waste water on landscaping as an alternative to using fresh water. texans are generally supportive of the city requiring water conservation7 and limiting urban sprawl8. the public also supports building more dams and reservoirs and investing in water pipelines from other regions of the country. the above strategies were framed in terms of a city’s response to droughts. it is possible some respondents may not favor cities taking on these responsibilities, but may be supportive if other governmental units were overseeing these projects. therefore, we decided to frame various strategies in terms of policy options, but we did not associate them with any particular level of government except for one that is framed with the national government. the policy battery results can be found in table 5. generally, the public is supportive of all the policy alternatives. the public most strongly supports policies that would build infrastructure to support water demands and protect some water resources to preserve wildlife and fishery habitats. there is also strong support for policies that require lawn watering using reclaimed/reused water instead of drinking water, that conduct campaigns for voluntary water conservation, that give tax incentives for the installation of water-saving equipment, and that require low water-use landscaping. the public is also more supportive than not for providing tax cuts to companies to reduce their water use, requiring mandatory water conservation, and developing a comprehensive national plan for allocating water across state borders. the public is consistent in its 7 we are unable to determine if the respondent presumed conservation was related to long-term efforts such as retrofitting toilets or short-term drought-related efforts such as limiting water use for landscaping. 8 urban sprawl results in greater residential water use per capita when compared to urban users. new residential developments tend to be lower in density, which means larger lawns and the increased availability for space that would allow private swimming pools, resulting in a greater demand for water for these areas to keep the larger lawns green and the pools full than the demand in more densely populated areas. the epa (2013) estimates that approximately 30% of a household’s water use is for outdoor uses, such as watering lawns and gardens. since more densely populated areas do not have large lawns or gardens, the majority of this water use is occurring in less dense areas, such as suburbs and exurbs. limiting sprawl encourages greater population density, which decreases extraneous water uses. moreover, southwestern states, including texas, already have residential water-use levels that exceed the rest of the nation (epa 2006), and sprawl will exacerbate this. texas water journal, volume 4, number 2 54 public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas belief that the federal government is less responsible than state or local governments, as the proposal of the national plan is the least supported policy option in the battery, which is reflected in the largest rate of “unsure” and “strongly oppose” responses. discussion we began this project by trying to better understand texans’ attitudes toward water management and droughts. due to the shortage of public opinion on this issue, we wanted to report the results of our public opinion surveys of the people of texas to the larger texas research community. we believe that the data presented here can be helpful for government practitioners and researchers, and that there are several important implications. first, texans are generally supportive of government efforts to manage water resources during a drought and to implement plans that reduce the impact of future droughts. we found quite a bit of support for government policies and action. we anticipate that the public most likely believes that these actions will be carried out by the state or local governments (figure 2). second, we found that the public consistently supports efforts so long as these efforts do not negatively affect agriculture. as presented in figure 5, agriculture is the last place the public wants to look for water supply savings. the evidence suggests that the public recognizes that disruptions in the water supply will likely increase the cost of food (table 4) (e.g. fannin 2011; trostle 2008) and is much more willing to accept the costs of conserving water than burden agriculture (figure 5). the consistency of these findings throughout the survey indicates that these are strong beliefs. third, we found a similar pattern with the environment. the public identifies the natural environment as the fourth most important use of water (figure 3). the public also believes that fish and wildlife habitats are just as important as the economy (table 1). respondents were highly likely to agree or strongly agree (75.65%) that they would conserve water to protect the environment (table 1). the public recognizes that droughts are likely to damage animal and plant species (table 4). additionally, 71.59% of texans would support or strongly support a policy that would protect water resources to preserve wildlife and fishery habitats. clearly, the public wants to protect the environment from water shortage issues. we found conflict in opinions between the environment and infrastructure investment. it is possible several camps could exist here. many of the infrastructure projects certainly would influence the environment in a negative manner. from the disruption of natural streamflow to the destruction of habitats, the creation of a reservoir has many large ecological implications (e.g. mccully 2001). although we are unable to determine this from our survey, we suspect that this is more a reflection of the public’s lack of understanding about what is involved in the creation of a reservoir. on the other hand, the recycling of waste water for irrigation would have 2 impacts. strongly oppose oppose unsure support strongly support mean build infrastructure (dams, reservoirs, pipelines) to support water demands during a drought 1.13 2.02 29.35 47.61 19.90 2.83 protect some water resources to preserve wildlife and fishery habitats 2.02 3.16 23.23 53.03 18.56 2.82 give tax incentives for the installation of water-saving equipment 3.03 5.30 23.86 49.37 18.43 2.74 require that lawn watering use reclaimed/reused water instead of drinking water 2.28 6.32 26.42 44.12 20.86 2.74 conduct campaigns for voluntary water conservation 2.42 5.47 25.45 50.89 15.78 2.72 require low water-use landscaping 3.68 6.21 23.07 48.92 18.12 2.71 provide state tax cuts to companies that reduce their water use 3.68 7.73 32.45 45.88 10.27 2.51 require mandatory water conservation 3.94 11.44 31.51 38.88 14.23 2.48 develop a comprehensive national plan for allocating water across state borders 6.58 9.37 39.11 33.80 11.14 2.33 values are percentages, except the mean. the mean is calculated using a coding scheme from 0 (strongly oppose) to 4 (strongly support). a 2.0 represents the midpoint of the scale. table 5. public support for water policy proposals texas water journal, volume 4, number 2 55public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas first, and arguably a positive impact, the waste water would not be reintroduced to fresh water supplies, which would decrease the amount of chemicals and other foreign bodies in rivers and streams. second, it is unclear the extent to which this recycling would impact water levels downstream. if the treated waste water is no longer pumped into the streams or pumped at a much lower rate, will this cause streams to dry because demand would be greater than supply? conversely, if recycled water is being used for irrigation purposes, this would decrease the demand on natural streamflow, which would potentially decrease the potential negative trade off. additional research is needed to answer these questions. fourth, we were not sure how the public would respond to the use of recycled water due to the potential “gross” factor associated with waste water. we found that the public is quite supportive and see this as one of the best ways to limit the impact of future droughts (figure 7). while our questions focus on using the recycled water for irrigation, it is unclear if the public would support using this water for potable uses. finally, it appears that the public will generally be supportive of government action to reduce the impact of droughts. however, the government may need to explain why a given action is necessary (table 1). the public will act if it is in response to a severe drought. given the consistency in these responses, it is also possible that in non-drought conditions the public’s desire to protect the environment and agriculture will cause it to support water management projects so long as the projects are framed in this manner. however, efforts to take advantage of these general dispositions will likely need to be more specific than what is often found during non-drought conditions. the legislative environment looks favorable for texas officials since many texans already believe droughts are more severe and more frequent. the question is whether the legislature is able to corral this base support. references banner jl, jackson cs, yang z-l, hayhoe k, woodhouse c, gulden l, jacobs k, north g, leung r, washington, w, jiang x, casteel r. 2010. climate change impacts on texas water: a white paper assessment of the past, present and future and recommendations for action. texas water journal [internet]. [cited 2013 september 22] 1(1):1-19. available from: http://journals.tdl.org/twj/index.php/twj/ article/view/1043/740 blank j, henson j. 2013, march 14. water not floating to top with texas voters [internet]. austin (texas): the texas tribune; [cited 2013 september 22]. available from: http:// www.texastribune.org/2013/03/14/water-not-floatingtop-tx-voters/ burstein p. 2010. public opinion, public policy, and democracy. in: leicht kt, jenkins jc, editors. handbook of politics: state and society in global perspective. new york (new york): springer. p. 63-79. [epa] u.s. environmental protection agency. 2002. the clean water and drinking water infrastructure gap analysis. washington (district of columbia): u.s. environmental protection agency. epa-816-r-02-020. [epa] u.s. environmental protection agency. 2006. growing toward more efficient water use: linking development, infrastructure, and drinking water policies. washington (district of columbia): u.s. environmental protection agency. epa-230-r-06-001. [epa] u.s. environmental protection agency. 2013. outdoor water use. washington (district of columbia): u.s. environmental protection agency. epa-832-f-06-005. fannin b. 2011 august 17. texas agricultural drought losses reach record $5.2 billion [internet]. college station (texas): texas a&m agrilife today; [cited 2013 september 22]. available from: http://today.agrilife.org/2011/08/17/ texas-agricultural-drought-losses-reach-record-5-2-billion/ hmelo-silver ce. 2004. problem-based learning: what and how do students learn? educational psychology review. 16(3):235-266. [ipcc] intergovernmental panel on climate change. 2007. climate change 2007: impacts, adaptation and vulnerability. (contribution of working group ii to the fourth assessment report of the intergovernmental panel on climate change, 2007). new york (new york): cambridge university press. 976 p. lubick n. 2004. western aquifers under stress. geotimes [internet]. [cited 2013 september 22]. available from: http://www.geotimes.org/may04/feature_westernaq.html mccully p. 2001. silenced rivers: the ecology and politics of large dams, enlarged and updated edition. new york (new york): zed books. 416 p. [ndmc] national drought mitigation center. 2013. types of drought impacts [internet]. lincoln (nebraska): the national drought mitigation center at the university of nebraska-lincoln; [cited 2013 september 22]. available from: http://drought.unl.edu/droughtforkids/howdoesdroughtaffectourlives/typesofdroughtimpacts.aspx ostrom v. 2007. the intellectual crisis in american public administration. 3rd edition. tuscaloosa (alabama): university of alabama press. 230 p. seager r, ting m, held i, kushnir y, lu j, vecchi g, huang h-p, harnik n, leetmaa a, lau n-c, li c, velez j, naik n. 2007. model projections of an imminent transition to a more arid climate in southwestern north america. science 316(5828):1181-1184. http://journals.tdl.org/twj/index.php/twj/article/view/1043/740%0d http://journals.tdl.org/twj/index.php/twj/article/view/1043/740%0d http://today.agrilife.org/2011/08/17/texas-agricultural-drought-losses-reach-record-5-2-billion/ http://today.agrilife.org/2011/08/17/texas-agricultural-drought-losses-reach-record-5-2-billion/ http://drought.unl.edu/droughtforkids/howdoesdroughtaffectourlives/typesofdroughtimpacts.aspx http://drought.unl.edu/droughtforkids/howdoesdroughtaffectourlives/typesofdroughtimpacts.aspx texas water journal, volume 4, number 2 56 public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas trostle r. 2008. global agricultural supply and demand: factors contributing to the recent increase in food commodity prices. washington (district of columbia): usda economic research service. usda-wrs-0801. yu j, norwine j, bingham r, tebaldi c. 2006. potential climatic deterioration in semiarid subtropical south texas. geography online [internet]. 6(2). available from: http:// www.siue.edu/geography/online/gov6n2.html texas water journal, volume 4, number 2 57public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas appendix a appendix table 1: descriptive statistics survey 1 survey 2 combined gender male 51.71 55.58 53.65 female 48.29 44.42 46.35 education less than high school 10.49 7.04 8.76 high school 28.05 30.58 29.32 some college 31.46 30.83 31.14 bachelor’s degree or higher 30.00 31.55 30.78 race white 56.59 56.55 56.57 black 10.00 10.92 10.46 hispanic 26.59 27.43 27.01 multiracial 4.63 2.67 3.65 other 2.20 2.43 2.31 age 18-24 6.10 5.58 5.84 25-34 10.24 17.96 14.11 35-44 14.63 14.32 14.48 45-54 20.73 20.15 20.44 55-64 25.37 17.48 21.41 65-74 16.83 17.48 17.15 75+ 6.10 7.04 6.57 income less than $15,000 12.68 9.95 11.31 $15,000 – $29,999 12.93 13.35 13.14 $30,000 – $49,999 19.76 22.09 20.92 $50,000 – $74,999 19.51 19.17 19.34 $75,000 – $99,999 13.66 13.11 13.38 $100,000 – $149,999 14.63 14.08 14.36 more than $150,000 6.83 8.26 7.54 party identification democrat 34.35 35.25 34.80 republican 34.61 36.25 35.44 independent 31.04 28.50 29.76 number of observations 410 412 822 all values are percentages. texas water journal, volume 4, number 2 58 public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas appendix b appendix table 2: variable definitions question wording n figure 1 battery prompt “on a scale from 0 to 10, with 0 indicating not at all concerned and 10 indicating extremely concerned, how concerned are you about each of the following issues?” jobs & economic growth “jobs and economic growth” 815 immigration “immigration” 815 pollution “pollution” 810 government spending & national debt “government spending/national debt” 817 global warming & climate change “global warming and climate change” 818 energy supply “energy supply” 814 health care “health care” 814 terrorism & national security “terrorism and national security” 817 the environment “the environment” 815 water quality & availability “water quality and availability” 816 figure 2 public education battery prompt “different levels of government claim responsibility for specific policy areas. using the following 0 to 10 scale with 0 being not at all responsible and 10 being completely responsible please indicate which group you believe should be responsible for managing public education policy.” federal government “federal government” 809 state government “state government” 809 local government “local government” 810 private sector “private sector” 809 homeland security battery prompt “different levels of government claim responsibility for specific policy areas. using the following 0 to 10 scale with 0 being not at all responsible and 10 being completely responsible please indicate which group you believe should be responsible for managing homeland security policy.” federal government “federal government” 797 state government “state government” 791 local government “local government” 791 private sector “private sector” 789 energy battery prompt “different levels of government claim responsibility for specific policy areas. using the following 0 to 10 scale with 0 being not at all responsible and 10 being completely responsible please indicate which group you believe should be responsible for managing energy policy.” federal government “federal government” 805 state government “state government” 805 local government “local government” 805 private sector “private sector” 805 texas water journal, volume 4, number 2 59public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas question wording n water battery prompt “different levels of government claim responsibility for specific policy areas. using the following 0 to 10 scale with 0 being not at all responsible and 10 being completely responsible please indicate which group you believe should be responsible for managing water policy.” federal government “federal government” 804 state government “state government” 809 local government “local government” 805 private sector “private sector” 806 figure 3 battery prompt “on a scale from 0 to 10, with 0 indicating not at all important and 10 indicating extremely important, rate how important each of the following water uses is to you?” drinking “water for drinking” 812 household use “water for household use (e.g. showers, laundry, and toilets)” 813 natural environment “water for the natural environment such as fish and wildlife habitat” 811 private landscaping “water for landscaping homes and businesses” 807 industrial use “water for industrial use (e.g. manufacturing, mining and energy generation)” 815 agriculture “water for agriculture (e.g., crops and livestock)” 811 recreation “water for recreation (e.g., pools and boating)” 811 municipal landscaping “water for municipal landscaping (e.g., parks and golf courses)” 811 table 1 battery prompt “please indicate whether you strongly disagree, disagree, neither disagree nor agree, agree, or strongly agree with each of the following statements.” water to meet current needs “there is enough water in my state to meet current needs.” 807 water to meet future needs “there is enough water in my state to meet future needs.” 808 economy vs. environment “in water planning, the economy is more important than the environment.” 807 fish/wildlife vs. economy “water conservation for fish/wildlife habitat and economic growth are equally important.” 807 cities divert from rural areas “cities should be able to divert water from rural areas if they need more water.” 806 conservation affects me “the issues related to the conservation and availability of water do not affect me.” 807 voluntary conservation “household water restrictions should be voluntary rather than mandated by the government.” 806 conserve: inconvenient “making efforts to conserve water is inconvenient.” 808 conserve: lower water bill “i am willing to conserve water to lower my water bill.” 809 conserve: environment “i am willing to conserve water to protect the environment.” 809 conserve: industrial use “i am willing to conserve water for industrial uses.” 808 conserve: agriculture “i am willing to conserve water for agricultural uses.” 804 conserve: drought conditions “i am willing to conserve water under extreme drought conditions.” 810 figure 4 most important water issue “what do you think is the most important water related issue in your state?” 1) “water quality/pollution;” 2) “water quantity/drought in areas;” 3) “water distribution/provide enough water to all users” 808 appendix table 2 (cont.) texas water journal, volume 4, number 2 60 public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas question wording n figure 2 battery prompt indicate whether you strongly disagree, disagree, neither disagree nor agree, agree, or strongly agree that each of the following has been a cause of drought or water shortage in your region. annual rainfall “short-term changes in annual rainfall levels” 706 overuse of water “overuse of water” 704 inadequate management “inadequate management of water resources” 704 increased demand “increased demand from water users” 705 climate change “climate change” 703 table 3 drought frequency “are droughts in your region becoming more common, less common, or continuing to occur at the same rate?” 702 drought severity “are droughts in your region becoming more severe, less severe, or continuing to occur with the same severity?” 700 table 4 battery prompt “how likely are the following drought impacts to occur in your region in the next five years?” very unlikely, somewhat unlikely, unsure, somewhat likely, or very likely disruption of water supply “disruption of water supply” 810 increased food prices “increased food prices” 806 increased water costs “increased water costs” 809 loss of recreational activities “loss of recreational activities” 807 damage to animals & plants “damage to animal and plant species” 810 reduced water quality “reduced water quality” 808 increased fires “increased fires” 806 increased water-use conflicts “increased water-use conflicts” 807 figure 5 which use should be reduced first “which of the following water uses should be reduced first to lessen the impacts of drought?” 1) “city use;” 2) “agricultural use;” 3) “industrial use;” or 4) “individual use” 812 figure 6 battery prompt “during times when water availability is limited due to a short-term drought (lasting less than two years), a city may adopt several strategies to ensure it has enough water. please rate the strategies that a city might consider on a scale of 0 to 10 with 0 being not favored by you and 10 being highly favored by you.” limit use on private lawns “limiting water use on private lawns” 812 limit use on public lawns “limiting water use on public landscapes” 811 buy water from farmers “buying water from farmers to use in cities” 810 limit water use by industry “limiting water use by industry” 810 figure 7 battery prompt “increasing population means that cities will need more water for the long run (more than ten years in the future). listed below are several possible strategies that a city might consider to ensure adequate water supplies in the future. please rate the strategies on a scale of 0 to 10 with 0 being not favored by you and 10 being highly favored by you.” transfer water from farms “permanently transferring water from farms to the city” 809 appendix table 2 (cont.) texas water journal, volume 4, number 2 61public attitudes toward water management and drought in texas public attitudes toward water management and drought in texas question wording n build dams & reservoirs “building dams and reservoirs” 808 pipe water “constructing pipelines to bring water from other regions” 807 reuse treated waste water “reusing treated waste water on lawns and landscapes” 809 require conservation “requiring water conservation” 805 limit urban sprawl “limiting urban sprawl” 805 increase water rates “increasing water rates” 808 table 5 battery prompt “a number of policy options have been proposed to manage water resources. please indicate whether you strongly oppose, oppose, support, or strongly support each of the following options.” respondents were also allowed to choose “unsure.” build infrastructure “build infrastructure (dams, reservoirs, pipelines) to support water demands during a drought” 794 voluntary conservation “conduct campaigns for voluntary water conservation” 786 require conservation “require mandatory water conservation” 787 tax incentives “give tax incentives for the installation of water-saving equipment” 792 comprehensive national plan “develop a comprehensive national plan for allocating water across state borders” 790 state tax cuts “provide state tax cuts to companies that reduce their water use” 789 low water-use landscaping “require low water-use landscaping” 789 protect wildlife & fish habitat “protect some water resources to preserve wildlife and fishery habitats” 792 reuse treated waste water “require that lawn watering use reclaimed/reused water instead of drinking water” 791 appendix table 2 (cont.) effects of the rincon bayou pipeline on salinity in the upper nueces delta texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute volume 9, number 1 2018 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. cover photo: sunrise over coastal bend bays & esturaries program land. © 2017 john reuthinger. see winning photos at wildlifeinfocus.org http://texaswaterjournal.org http://wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, may 15, 2018 pages 30–49 abstract: a pipeline to pump water from the nueces river to the upper delta at rincon bayou was constructed to mitigate the reduction of inflow from impoundments. pumping has restored ecological function to the nueces estuary by increasing inflow and decreasing salinity, and transitioned the marsh into a positive estuary (lower salinities upstream increasing downstream towards the bay). pumping has decreased the occurrences of salinities greater than 35 practical salinity units during drought conditions; however the current pumping regime causes a disturbed environment by creating extreme fluctuations in salinities in a very short time period. immediately after pumping salinity fluctuations at the pumping outfall commence from hypersaline to fresh. when pumping ceases, salinity fluctuates from fresh to hypersaline until the next pumping event. pumping often occurs during rainfall and flooding events when reservoir levels meet certain capacities that trigger pass-through requirements. this strategy provides inflow when it is not needed, and inhibits pumping during drought conditions when inflow is needed to maintain the quality of the estuarine ecosystem. while the current pumping regime has restored estuary conditions to rincon bayou by increasing inflow and decreasing salinity, it also causes extreme fluctuations in salinity that act as a disturbance. a lower magnitude, longer duration pumping strategy would create a more stable environment by providing freshwater continuously and would be an improved hydrological restoration strategy. keywords: freshwater inflow, freshwater management, pumped inflow, estuary, salinity, hydrology, restoration 1harte research institute for gulf of mexico studies, texas a&m university-corpus christi, 6300 ocean drive, corpus christi, texas 78412 *corresponding author: elizabeth.delrosario@tamucc.edu texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta elizabeth a. del rosario1* , paul a. montagna1 citation: del rosario ea, montagna pa. 2018. effects of the rincon bayou pipeline on salinity in the upper nueces delta. texas water journal. 9(1):30-49. available from: https://doi.org/10.21423/twj.v9i1.7042. © 2018 elizabeth a. del rosario, paul a. montagna. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:elizabeth.delrosario@tamucc.edu https://doi.org/10.21423/twj.v9i1.7042 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing http://orcid.org/0000-0002-7221-9277 http://orcid.org/0000-0003-4199-3312 texas water journal, volume 9, number 1 31effects of the rincon bayou pipeline on salinity in the upper nueces delta terms used in paper short name or acronym descriptive name bor u.s. bureau of reclamation cbbep coastal bend bays & estuaries program cbi conrad blucher institute for surveying and science cfs cubic feet per second m3/s cubic meters per second nra nueces river authority psu practical salinity units rbp rincon bayou pipeline tceq texas commission on environmental quality tnrcc texas natural resource conservation commission usgs u.s. geological survey introduction the amount of freshwater reaching the nueces estuary has been reduced by the construction of two dams in the nueces river basin: the wesley e. seale dam (lake corpus christi) on the nueces river and the choke canyon reservoir on the frio river (tributary to the nueces river) (hdr engineering inc. 2001). irlbeck and ward (2000) reported that the change in the annual mean flow into the nueces delta from the river during the period after the construction of the wesley seale dam was decreased by about 39% (1958 to 1982), and that the change during the period after construction of choke canyon dam was decreased by more than 99% (1982 to 1999) from that of historic flows (1940 to 1957) (bor 2000). in response to this reduction of flows, the state of texas issued an agreed order that required the city of corpus christi to provide not less than 185 million cubic meters (149,982 acre-feet) of water per year to the nueces estuary by a combination of releases (stored water that is let out) and spills (overflows) (montagna et al. 2009). in april 1995, the texas natural resource conservation commission—formerly texas water commission, but now the texas commission on environmental quality (tceq)—issued an amendment to the final agreed order reducing the amount required to be released per year. the amendment required inflows to be delivered in a monthly regimen to mimic natural hydrographic conditions in the nueces basin. three other revisions also took effect: (1) the minimum mandatory inflows were changed to targeted monthly inflows, (2) the releases were changed to be based on the passage of reservoir inflows, known as “pass-through or (sic) pass-thru,” rather than the release of previously stored water, and (3) drought relief was granted in the form of different pass-through requirements based on the reservoir level (tceq 1995). the concept of letting water pass-through is meant to mimic the natural inflows of nature while also taking into account area water demands. this is accomplished by placing constraints on pass-throughs that are based on a combination of reservoir elevation level, precipitation, and bay salinity (spruill 2013). these constrains require the water to be released only when these conditions are met. rincon bayou demonstration project from the combined effects of reservoir construction, changes in land use patterns, increased groundwater withdrawals, and other human activities, the mean annual flow of freshwater texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta32 diverted into the upper nueces delta has been reduced from that of historical flows (127,997 acre-feet (1940–1957) to 537 acre-feet (1983–1996)) (bor 2000). in october 1995, the u.s. bureau of reclamation undertook the rincon bayou demonstration project to provide scientific information regarding the freshwater needs of the nueces delta and its response to changes in freshwater inflows. a diversion channel was excavated from the nueces river to the headwaters of rincon bayou to increase the opportunity for more frequent and higher magnitude inflow events (bor 2000). the diversion channel successfully increased the amount of freshwater diverted into the upper nueces delta returning a significant degree of ecological function to the nueces estuary ecosystems (bor 2000; montagna et al. 2009). the diversion channel was filled in after the completion of the demonstration project in 2000 as required in the initial contract (bor 2000). rincon bayou pipeline in 2001, the tceq, the city of corpus christi, the nueces river authority (nra), and the city of three rivers adopted an agreed operating order for the lake corpus christi and choke canyon reservoir system requiring the city of corpus christi to pass-through freshwater to the nueces estuary. the pass-through was based on seasonal requirements of estuarine organisms and inflows into the reservoir system, up to a monthly target amount, if sufficient flows enter the reservoir (lloyd et al. 2013; tnrcc 2001). to meet the order’s passthrough requirement, the city of corpus christi agreed to: (1) reconstruct the nueces river overflow channel, a diversion channel dug during the demonstration project; (2) construct a pipeline (rincon bayou pump station and pipeline) to convey up to 3,000 acre-feet per month directly to the nueces delta; and (3) implement an ongoing monitoring and assessment program to facilitate adaptive management for freshwater flow into the nueces estuary (tnrcc 2001; montagna et al. 2009; lloyd et al. 2013; hill et al. 2012). in november 2007, the pipeline was completed from the san patricio municipal water district, w. a. edwards pump station location, northward along the nueces river, and then eastward across u.s. highway 77 to the headwaters of rincon bayou (figure 1) (hdr engineering, inc. 1993). the pump figure 1. map of station locations for measuring flow, salinity, and rainfall in rincon bayou. stations c, f, g, and 467 are historical locations sampled by montagna. image source (usda-nrcs 2006). texas water journal, volume 9, number 1 33effects of the rincon bayou pipeline on salinity in the upper nueces delta the main stem channel of the nueces delta marsh is located at rincon bayou, a creek connecting the tidal segment of the nueces river to the delta (figure 1). rincon bayou was the historic location of river inundation events in the northeastern portion of the upper nueces delta following seasonal rainfall events farther inland along the nueces river. this provided nutrients and enough freshwater to reduce salinity in the estuarine system (montagna et al. 2015). methods hydrographic measurements were taken with an ysi 6600 multi-parameter sonde at station c and station g. station c is located at 27.89878 °n latitude and 97.60417 °w longitude (figure 1). salinity observations were collected every 15 minutes for a duration of two weeks at a time from january 2014 through december 2015. salinity was automatically corrected to 25 °c. long-term salinity data was collected at station g located at 27.88992 °n latitude and 97.56910 °w longitude (figure 1). salinity observations were collected on a quarterly and monthly basis. stations c and g are historic stations and previously named 466c and 463g respectively. hydrology data were downloaded from the corresponding websites listed in table 1 as follows: natural inflow and discharge data were collected at the u.s. geological survey (usgs) rincon bayou channel gage no. 08211503 located at 27.896667 °n latitude and 97.625278 °w longitude; salinity data were collected at nueces delta 2 (cbi 042-nude2) located at 27.8888 °n latitude and 97.5696 °w longitude and cbi 074-salt03 located at 27.85155 °n latitude and 97.48203 °w longitude; and rainfall data were collected at the station consists of three pumps, which are capable of moving up to 3.8 cubic meters per second (m3/s) (134 cubic feet per second (cfs)) when all pumps are in operation (lloyd et al. 2013; hill et al. 2012). during flooding events, water would flow over the calallen saltwater barrier dam into the upper marsh supplying the estuarine ecosystem with freshwater. in 2009, the pipeline and pumping station began pumping freshwater from the calallen pool into the nueces delta at the rincon bayou headwaters so that inflow would no longer rely on overflowing of the calallen saltwater barrier dam (figure 1). pumping events typically occur when salinities in the nueces delta are greater than 30 practical salinity units (psu) and when reservoir levels and rainfall events allow for pass-through conditions (lloyd et al. 2013). the purpose of this study was to determine the effects of the rincon bayou pipeline on the salinity of the upper nueces delta. study site the nueces river basin is one of the 15 major river basins in texas and is an important water supply for the nueces-rio grande coastal basin area. the nueces estuary is contained within the nueces river basin and is supplied with inflow from the nueces river that flows into the nueces bay in the gulf of mexico near corpus christi. the nueces river provides freshwater to the city of corpus christi and the surrounding coastal bend area. the calallen pool (saltwater barrier dam) (figure 1) is located adjacent to interstate 37 and was constructed in 1898 to restrict saltwater intrusion to the upstream non-tidal segment of the nueces river (montagna et al. 2009). table 1. hydrology data obtained from the listed sources for the date range specified on 11 january 2016. name hydrological parameter recorded interval date range agency website rincon bayou pipeline (rbp) pumped inflow daily total (acre-feet/day) sept. 2009– dec. 2015 nueces river authority (nra) http://www.nueces–ra.org/ cp/city/rincon/ usgs 08211503 rincon bayou channel gage natural inflow and discharge mean daily rate (f3/sec) sept. 2009– dec. 2015 united states geological survey (usgs) http://nwis.waterdata.usgs. gov cbi 042-nude2 cbi 074-salt03 salinity every 15 minutes (psu) may 2009– dec. 2015 conrad blucher institute for surveying and science (cbi) http://cbi.tamucc.edu/ datums/042 http://cbi.tamucc.edu/ datums/074 cbi 069-nudewx computed cumulative rainfall daily total at midnight (cm) jan. 2014– dec. 2015 http://cbi.tamucc.edu/ datums/069 http://en.wikipedia.org/wiki/nueces_river http://www.nueces-ra.org/cp/city/rincon/ http://www.nueces-ra.org/cp/city/rincon/ http://nwis.waterdata.usgs.gov/ http://nwis.waterdata.usgs.gov/ http://cbi.tamucc.edu/datums/042 http://cbi.tamucc.edu/datums/042 http://cbi.tamucc.edu/datums/074 http://cbi.tamucc.edu/datums/074 http://cbi.tamucc.edu/datums/069%20 http://cbi.tamucc.edu/datums/069%20 texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta34 nueces delta weather station (cbi 069-nudewx) located at 27.8975 °n latitude and 97.616389 °w longitude (figure 1). data analysis data manipulation, calculations, and statistical analyses were performed using sas 9.3 software (sas institute inc. 2013). the salinity gradient was determined for rincon bayou by subtracting the upstream salinity (nude2) from the downstream salinity (salt03). it was determined to be in a negative estuary condition when the difference was negative, i.e. the salinity at salt03 was less than the salinity at nude2, and in a positive estuary condition when the difference was positive, i.e., the salinity at salt03 was greater than the salinity at nude2. pumped inflow and gaged inflow were converted to m3/s. pumped inflow data were assigned pumping event numbers based on breaks in the pumping duration. the number of days of inflow and the total pumped inflow rate per pumping event number was calculated. total inflow rate into rincon bayou was calculated per day by summing the pumped inflow rate and the inflow rate at the usgs gage. percent occurrence is defined as how often the event has occurred in a time period. percent occurrences were derived from histogram frequencies and converted to percent for the salinity range at nude2, for natural inflow (usgs gage), and for the long-term salinity range at station g. percent exceedance was calculated for natural inflow (usgs gage), pumped inflow (rbp), and total inflow (usgs gaged inflow + rbp). inflows were ranked from highest to lowest. the exceedance probability (p) was calculated as: p = 100 * [ m / (n + 1) ] where p is the probability that a given flow will be equaled or exceeded (% of time), m is the ranked position of the flow amount, and n is the number of flow events from september 2009 to december 2015. drought conditions data were obtained from the u.s. drought monitor (usdm 2017) from october 2001 to december 2015 for lower nueces watershed and the texas-gulf watershed. the lower nueces watershed contains the data for the following counties: nueces, live oak, bee, duval, jim wells, karnes, san patricio, and mcmullen (epa 2017). d0 through d4 describes the drought severity classification using five key indicators (appendix 3), drought impacts, and local reports from more than 350 expert observers around the country (usdm 2017). drought conditions were reported as percent area of the watershed in moderate drought and above (d1-d4) and maximum monthly percent area was plotted with the monthly mean salinities at station g. missing salinity values were extrapolated. results the salinity gradient from the upper delta extending to the nueces bay defines whether rincon bayou has either positive or negative estuarine conditions. an increasing salinity gradient results in a positive estuarine condition with lower salinities upstream; a decreasing salinity gradient results in a negative estuarine condition with higher salinities upstream. the nueces estuary can shift between positive and negative estuarine conditions depending on the volumes of inflow and precipitation. in the five-month period prior to the rincon bayou pipeline becoming operational in september of 2009, the nueces estuary was negative (figure 2) with a mean daily salinity upstream at nude2 being higher than the mean daily salinity downstream in the nueces bay at salt03. the nueces estuary oscillates between positive and negative conditions with pumpfigure 2. salinity gradient for the nueces estuary (i.e., difference between downstream salt03 and upstream nude2) and pumping event daily totals may 2009 to december 2015. the rincon bayou pipeline became operational in september 2009 (appendix 1). the width of the bar indicates pumping event duration. texas water journal, volume 9, number 1 35effects of the rincon bayou pipeline on salinity in the upper nueces delta ing events (figure 2). pumping events coincided with periods of positive estuary conditions with salinities at nude2 rapidly decreasing when pumping begins and gradually increasing when pumping ceases. the mean pumped inflow per pumping event was 12 m3/s with a maximum pumping rate of 126.86 m3/s and a minimum pumping rate of 0.11 m3/s (appendix 1). with pumping, the mean daily salinity at nude2 was 23.22 psu with a maximum daily mean salinity of 86.29 psu and a minimum daily mean salinity of 0 psu (table 2). nude2 salinity data began in may of 2009. rincon bayou has transitioned from a negative hypersaline estuary to a positive mesohaline estuary with lower salinity ranges occurring most often since pumping began (figures 3a, 3b). seasonal differences were accounted for by comparing salinity ranges that occurred monthly from may to september prior to pumping (2009) and after pumping began (2010–2015) (figure 3b). data was not available prior to may of 2009, so the other seasons were not included in the analysis. figure 3b shows lower salinities occurring most often in the summer with pumping and higher salinities occurring most often in the summer prior to pumping. salinity at station c (figure 4) declined after each pumping event and gradually increased until the next pumped inflow with a mean daily salinity of 6.77 psu, a maximum daily mean salinity of 34.41 psu, and a minimum daily mean salinity of 0.01 psu (table 2). the decreased gaged reading is caused by the back-flow preventer that was installed in july 2014. the increased gaged reading in july 2015 is caused by the back-flow preventer becoming inoperable. the back-flow preventer kept inflows from going both upstream into the nueces river and downstream into rincon bayou. pumping events, rainfall, and salinity were plotted for a 2-year period (2014–2016) (figures 5 and 6). decreases in salinity that occurred when pumping was not occurring was likely due to rainfall (figure 5). the magnitude and duration of pumping events coincided with the amount of rainfall and typically occurred after or during rainfall periods (figure 6). the mean pumped inflow was 1.71 m3/s (60.4 cfs) with a maximum of 5.04 m3/s (178 cfs) and a minimum pumped amount of 0.03 m3/s (1 cfs) (table 2). the primary source of inflow into rincon bayou was from pumped inflow (figures 7 and 8). the usgs gage records downstream flows into rincon bayou as positive values and inflows back upstream into the nueces river as negative values (figure 7). the absence of a distinct elevation gradient in rincon bayou at the pumping (rbp) outfall area (figure 1) allows pumped inflow to flow both upstream and downstream resulting in both positive inflow and negative discharge readings at the usgs gage (figures 4 and 7). a back-flow preventer was in place from july 2014 to july 2015, which restricted inflow and discharge at the usgs gage (figures 4 and 7). a flow duration curve illustrates the percentage of time a given flow was equaled or exceeded during a specified period. from january 2009 through december 2015, positive inflow into rincon bayou was equaled or exceeded 40% of the time with pumped inflow accounting for most of the inflow into rincon bayou (figure 8). natural inflows into rincon bayou have been reduced by river impoundment to low-flow or drought-flow, with events over 5 m3/s being equaled or exceeded < 1% of the time. freshwater pumped into rincon bayou accounted for most of the high or medium flow events. the mean inflow volume from pumping was 1.71 m3/s (60.4 cfs) with a maximum total inflow rate (pumping and rincon gaged discharge) of 6.48 m3/s (229 cfs) (table 2). the percent of time that inflow from the rincon bayou diversion channel was sampling location unit number of observations mean std. dev. min. mean max. mean usgs rincon channel gage m3/s 2311 -0.02 0.32 -2.72 4.93 rincon bayou pipeline (rbp) m3/s 457 1.71 0.97 0.03 5.04 total inflow (gage + rbp) m3/s 2311 0.31 0.79 -1.70 6.48 nudewx cm 2182 1.92 7.78 0.00 142.00 salt03 psu 2413 31.65 9.96 0.36 47.28 nude2 psu 2301 23.22 18.17 0.00 86.29 station c psu 734 6.77 6.65 0.01 34.41 std, dev., standard deviation; min., minimum; max., maximum; cm, cubic meter table 2. daily means for usgs rincon bayou (channel) gage, cbi salinity stations (salt03, nude2) and weather station (nudewx), station c, and the rincon bayou pipeline (september 2009 to december 2015). note: 1 m3/s = 35.31 cfs. texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta36 greater than 0.2 m3/s (7.1 cfs) was less than 10% of the time with an inflow rate between 0 and 0.1 m3/s (3.5 cfs) occurring most often (figure 9). the mean of daily inflow rate at the usgs gage was -0.02 m3/s (0.7 cfs) with a maximum daily mean discharge rate of 4.93 m3/s (174 cfs) and a minimum daily mean rate of -2.72 m3/s (96.8 cfs). drought is defined as a moisture deficit bad enough to have social, environmental, or economic effects (usdm 2017). long duration drought conditions existed in the lower nueces watershed from june 2005 to september 2006, january 2008 to february 2010, and april 2011 to november 2014. the long-term salinity data for rincon bayou from october 2001 figure 3a. percent occurrence of salinity ranges in rincon bayou (nude2) prior to pumping (14 may 2009 to 28 september 2009) and with pumping (28 september 2009 to 31 december 2015). figure 3b. percent occurrence of salinity ranges in rincon bayou (nude2) prior to pumping may through september (2009) and with pumping from may through september (2010 to 2015). texas water journal, volume 9, number 1 37effects of the rincon bayou pipeline on salinity in the upper nueces delta to december 2015 shows that monthly mean salinities exceeded 35 psu in: april, june, and july of 2006; june of 2008; february, march, may, june, and july of 2009; and march and april of 2013 (figure 10). salinities greater than 35 psu in rincon bayou only occurred when drought conditions existed in the lower nueces watershed (figure 11a). percent occurrence of salinities greater than or equal to 35 psu in drought conditions has decreased from 40% (prior to pumping) to 12% (with pumping) (figures 11b, 11c). discussion the downstream salinity values at salt03 and upstream salinity values at nude2 were used to describe the estuary condition as positive or negative. the nueces estuary fluctuates between positive and negative conditions based on inflow and drought conditions, with pumped inflow decreasing the occurrence of salinities greater than 35 psu. pumped inflow figure 4. salinity at station c in rincon bayou, with inflow and discharge from the usgs rincon bayou (channel) gage and pumped inflow, january 2014 to december 2015. figure 5. salinity at station c in rincon bayou, with daily total rainfall from cbi nudewx station, january 2014 to december 2015. texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta38 is the primary source of freshwater inflow into rincon bayou and has transitioned the ecosystem into a positive estuary, but this dependence can lead to reverse estuary conditions (salinity can fluctuate from fresh to hypersaline and hypersaline to fresh in very short time periods) when pumping is not occurring or occurs for short periods. pumping has also created a distributed environment with the extreme fluctuations in salinity. the salinity tends to decrease immediately when the pumps are turned on and remain low until the pumps are turned off. the salinity will then steadily increase in rincon bayou, taking about 20 days to reach within 5 psu of salinity in nueces bay (adams and tunnell 2010; tunnell and lloyd 2011), until the pumps are turned back on. this cycle continues as the pumps are turned on and off. a lack of an elevation gradient allows inflows to flow naturally both upstream, to the nueces river, and downstream, to rincon bayou. adams and tunnell (2010) found that approximately 20% of pumped inflow goes upstream rather than downstream into rincon bayou. a weir was constructed at the pumping outfall in may 2010 to reduce the amount of pumped inflow going upstream (2016 interview with r. kalke; unreferenced, see “acknowledgments”). it was replaced in july figure 6. pumped inflow into rincon bayou with daily total rainfall from cbi nudewx station, january 2014 to december 2015. the width of the bar for pumping event indicates duration. figure 7. inflow (+) and discharge (-) at the usgs rincon bayou (channel) gage, and pumped inflow, september 2009 to december 2015. texas water journal, volume 9, number 1 39effects of the rincon bayou pipeline on salinity in the upper nueces delta 2014 with a freshwater inflow management structure (backflow preventer) consisting of box culverts with gates that must be manually opened and closed (lewis 2014; hill et al. 2012). the gap in the usgs gage reading in figure 4 depicts the time in which the structure was in place. the structure was successful at reducing the amount of pumped inflow going upstream and reducing natural inflows downstream into rincon bayou. the back-flow preventer washed out in the july 2015 flooding (2015 interview with r. allen and r. mooney; unreferenced, see “acknowledgments”) resulting in increased gaged reading of natural flows both upstream and downstream. pumping constraints the rincon bayou pump station is operated by the wesley seale dam near mathis, texas. the daily reservoir system and (sic) pass-thru status report generated by the nra (2017) is used as a guide as to what amount of water to release based on target pass-through requirements (percent full of reservoir), return flow credits (flow returned to nueces bay, such as treated wastewater), and salinity relief credits (low salinity in nueces bay) based on the 2001 agreed order (tnrcc 2001). pumping events are typically activated when salinities in the nueces delta reach a certain threshold (> 30 psu) and when reservoir levels and rainfall events allow for pass-through conditions (lloyd et al. 2013). the current method of pumping is based on an accounting perspective, where credits and deficits are displayed on the report and operators are given 10 days into the following month to make up deficits (tnrcc 2001). therefore, water is often held until the end of the month and then released continuously to fulfill the deficit before the deadline (2015 interview with d. lozano; unreferenced, see “acknowledgments”). the pumps are often turned on during periods of rainfall because that is when water is coming into the reservoirs to trigger the pass-through requirements, and water is available for pumping. pumping does not occur during periods of low rainfall because the requirements are not met, and water is not available for pumping. rainfall is taken into account by the 2001 agreed order in which pass-through requirements call for less water to be released downstream for the estuary when there is less rainfall (tnrcc 2001). the reservoir must meet certain water content storage percent levels for pass-throughs figure 8. flow duration curve for nueces river inflow (+) and discharge (-) at the rincon (channel) gage, september 2009 to december 2015. top: full inflow scale. bottom: zoomed to positive inflow values only. figure 9. percent occurrence for the natural flow rate at the usgs rincon bayou (channel) gage into rincon bayou from the nueces river september 2009 to december 2015. texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta40 figure 10. long-term rincon bayou salinity data (station g) with texas-gulf watershed drought conditions (october 2001 to december 2015). figure 11a. percent occurrence for salinity ranges with lower nueces watershed drought conditions (october 2001 to december 2015). figure 11b. percent occurrence for salinity ranges with lower nueces watershed drought conditions before pumping began (october 2001 to august 2009). figure 11c. percent occurrence for salinity ranges with lower nueces watershed drought conditions after pumping began (september 2009 to december 2015). texas water journal, volume 9, number 1 41effects of the rincon bayou pipeline on salinity in the upper nueces delta to be required (appendix 2), thus if there is not water coming into the reservoir, water does not have to be released (lloyd et al. 2013; tnrcc 2001). this approach has established a method of providing water to the estuary during wet periods and not providing water when it is needed during dry periods. the agreed order reflects the natural variation in flow that would have historically been seen for inflow into the upstream reservoirs, but in practice for the downstream estuaries, adding water when water is already present and not supplying water when water is needed is not allowing for an ecologically sustainable environment. the concept of banking water during regional wet periods for future use during regional dry periods was implemented in 2010 (tunnell and lloyd 2011; lloyd et al. 2013). water scheduled for pass-through to the nueces delta, based on the reservoir storage capacity level, was held and not pumped into rincon bayou until salinity reached a threshold (undefined) (tunnell and lloyd 2011). this provided the opportunity to release small quantities of water on a monthly or seasonal basis. during dry years the delta would still receive a small amount of water (~1,500 acre-feet) each month or season to keep salinity below extreme conditions (salinity > 35 psu) (tunnell and lloyd 2011). this was shown to be beneficial for the flora and fauna in rincon bayou and recommended to be a permanent management tool. however in april 2013, the nueces advisory council was asked by tceq to suspend water banking and to continue operating under the 2001 agreed order allowing the scheduled monthly amount to be passed-through (lloyd et al. 2013). operator constraints currently, the rbp pumps must be manually turned on and off from the pump station that is located next to edward’s pump station along interstate highway 37 (figure 1). at a minimum, the pumps are turned on every three months for 15 minutes resulting in pumped inflow of 56.8 m3/s for pump maintenance. during the flooding in 2015, the pumps were left on continuously from may 12 to june 15 to keep from flooding the pump station (2015 interview with d. lozano; unreferenced, see “acknowledgments”). this resulted in a total of 10.96 x 106 m3 (8,884 acre-feet) being pumped into rincon bayou coupled with 205 cm of rainfall recorded at nudewx. the usgs rincon bayou channel gage was inoperable from may 21 to june 16 (usgs 2015), so it is not known how much natural inflow entered from the nueces river. the inflow management structure (back-flow preventer) installed in july of 2014 washed out in the july 2015 flooding and was reinstalled in spring of 2016 (2016 interview r. kalke; unreferenced, see “acknowledgments”). the back-flow preventer is controlled by the coastal bend bays & estuaries program (cbbep) and consists of three manual control gates that are to be closed when pumping is occurring and reopened when pumping stops. due to lack of knowledge of when pumping events are going to occur, operation of the gates often does not coincide with pumping (2015 interview with r. allen and r. mooney; unreferenced, see “acknowledgments”) conclusion the primary source of freshwater into rincon bayou is from pumped inflow, thus salinity can be altered in direct response to management actions. the current pumping regime has restored ecological function (i.e. essential habitat, assimilative capacity, and intrinsic value) to rincon bayou by increasing inflow and decreasing salinity but causes extreme fluctuations (montagna et al. 2002; alber 2002; montagna et al. 2015). a lower magnitude, longer duration pumping strategy would create a more stable environment by providing freshwater continuously. this has been modeled to be more beneficial to the estuarine ecosystem and should be considered because of adaptive management (montagna et al. 2015). results of the current study demonstrate that hydrological restoration of reverse estuaries is possible. acknowledgments we would like to thank ray allen and rae mooney from the cbbep, david lozano from the city of corpus christi, and rick kalke from harte research institute, who provided interviews for this paper. the information provided us was much appreciated. thank you to the ecosystems group at harte research institute for sample collection and processing. without this, the research would not have been possible. we would like to thank our funding sources: the work was partially supported by coastal bend bays & estuaries program grant numbers 1417 and 1617, and texas water development board interagency agreement number 1548311787 to montagna; partial support was also provided by the harte research institute; partial support was also provided by the national oceanic and atmospheric administration, office of education educational partnership program award (na11sec4810001). (its contents are solely the responsibility of the award recipient and do not necessarily represent the official views of the u.s. department of commerce, national oceanic and atmospheric administration. any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the u.s. department of commerce, national oceanic and atmospheric administration.). texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta42 references adams js, tunnell j. 2010. rincon bayou salinity monitoring project [internet]. corpus christi (texas): coastal bend bays & estuaries program project 0921. cbbep-66 18 p. available from: http://cbbep.org/publications/virtuallibrary/0921report.pdf alber m. 2002. a conceptual model of estuarine freshwater inflow management. estuaries. 256b):1246-1261. 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[internet] available from: https://cfpub.epa. gov/surf/huc.cfm?huc_code=12110111 hdr engineering inc. 1993. regional wastewater planning study-phase ii, nueces estuary. austin (texas). hdr engineering inc. 2001. water management strategies: coastal bend water plan. corpus christi (texas). hill em, tunnell jw, lloyd l. 2012. spatial effects of rincon bayou pipeline inflows on salinity in the lower nueces delta, texas [internet]. corpus christi (texas): coastal bend bays & estuaries program project 1202. cbbep-81. 29 p. available from: http://cbbep.org/publications/publication1202.pdf irlbeck mj, ward gh. 2000. analysis of the historic flow regime of the nueces river into the upper nueces delta, and of the potential restoration value of the rincon bayou demonstration project. volume ii: appendix b. austin (texas): united states department of the interior, bureau of reclamation. lewis j. 2014, august 15. less salinity = more life, freshwater inflow management structure completed. the beeville bee-picayune. [cited 2015 april 13]. available from: https:// www.mysoutex.com/archives/less-salinity-more-life-freshwater-inflow-management-structure-completed/article_ edf2b4d9-320a-5d18-a80e-5ff8ff96d15a.html lloyd l, tunnell jw, everett a. 2013. nueces delta salinity effects from pumping freshwater into the rincon bayou: 2009 to 2013 [internet]. corpus christi (texas): coastal bend bays & estuaries program project 1311. cbbep-85. 21 p. available from: http://cbbep.org/publications/publication1311b.pdf montagna pa, alber m, doering p, connor sm. 2002. freshwater inflow: science, policy, management. estuaries. 25(6b):1243-1245. montagna pa, hill em, moulton b. 2009. role of science-based and adaptive management in allocating environmental flows to the nueces estuary, texas, usa. in: brebbia ca, tiezzi e, editors. ecosystems and sustainable development vii. southampton (uk): wit press. p. 559-570. montagna pa, adams l, chaloupka c, delrosario e, gordon a, herdener m, kalke rd, palmer ta, turner el. 2015. effects of pumped flows into rincon bayou on water quality and benthic macrofauna [internet]. corpus christi (texas): coastal bend bays & estuaries program project 1417. cbbep-101. 46 p. available from: http:// www.cbbep.org/manager/wp-content/uploads/cbbep1417-final-report.pdf [nra] nueces river authority. 2017. monthly pass-thru status report. [internet] available from: https://www.nueces-ra.org/cp/city/month.php sas institute inc. 2013. sas/stat® 13.1 user’s guide. cary, nc: sas institute inc. spruill r. 2013, may 6. state monitors health of coastal bend ecosystem. corpus christi caller-times. lubbock avalanche-journal. [cited 2015, april 5]. available from: http://www.lubbockonline.com/article/20130506/ news/305069891 [tceq] texas commission on environmental quality. 1995. agreed order establishing operational procedures pertaining to special condition b. certificate of adjudication, no. 21-3214, city of corpus christi, et al. (april 28, 1995). [tnrcc] texas natural resource conservation commission. 2001. an agreed order amending the operational procedures and continuing an advisory council pertaining to special condition 5.b., certificate of adjudication no. 21-3214; docket no. 2001-0230-wr. city of corpus christi, et al. (april 5, 2001). [internet]. available from: https://www.tceq.texas.gov/assets/public/implementation/ water/2001_neac_agreedorder.pdf tunnell jw, lloyd l. 2011. effects of rincon bayou pipeline inflows on salinity structure within the nueces delta, texas [internet]. corpus christi (texas): coastal bend bays & estuaries program project 1106. cbbep-76. 23 p. available from: http://cbbep.org/publications/virtuallibrary/1106.pdf [usda-nrcs] united states department of agriculture, natural resources conservation service. 2006. high resolution orthophoto mosaic for northern nueces county, texas. 1:12000. sioux falls (south dakota): united states geological survey. [usgs] united states geological survey. 2015. national water information system: web interface. [internet] usgs 08211500 nueces river near calallen, texas. available from: http://waterdata.usgs.gov/nwis/uv?site_ no=08211500 http://cbbep.org/publications/virtuallibrary/0921report.pdf http://cbbep.org/publications/virtuallibrary/0921report.pdf https://archive.org/details/rinconbayoudemon00unit https://archive.org/details/rinconbayoudemon00unit https://cfpub.epa.gov/surf/huc.cfm?huc_code=12110111 https://cfpub.epa.gov/surf/huc.cfm?huc_code=12110111 http://cbbep.org/publications/publication1202.pdf http://cbbep.org/publications/publication1202.pdf https://www.mysoutex.com/archives/less-salinity-more-life-freshwater-inflow-management-structure-completed/article_edf2b4d9-320a-5d18-a80e-5ff8ff96d15a.html https://www.mysoutex.com/archives/less-salinity-more-life-freshwater-inflow-management-structure-completed/article_edf2b4d9-320a-5d18-a80e-5ff8ff96d15a.html https://www.mysoutex.com/archives/less-salinity-more-life-freshwater-inflow-management-structure-completed/article_edf2b4d9-320a-5d18-a80e-5ff8ff96d15a.html https://www.mysoutex.com/archives/less-salinity-more-life-freshwater-inflow-management-structure-completed/article_edf2b4d9-320a-5d18-a80e-5ff8ff96d15a.html http://cbbep.org/publications/publication1311b.pdf http://cbbep.org/publications/publication1311b.pdf http://www.cbbep.org/manager/wp-content/uploads/cbbep-1417-final-report.pdf http://www.cbbep.org/manager/wp-content/uploads/cbbep-1417-final-report.pdf http://www.cbbep.org/manager/wp-content/uploads/cbbep-1417-final-report.pdf https://www.nueces-ra.org/cp/city/month.php https://www.nueces-ra.org/cp/city/month.php http://www.lubbockonline.com/article/20130506/news/305069891 http://www.lubbockonline.com/article/20130506/news/305069891 https://www.tceq.texas.gov/assets/public/implementation/water/2001_neac_agreedorder.pdf https://www.tceq.texas.gov/assets/public/implementation/water/2001_neac_agreedorder.pdf http://cbbep.org/publications/virtuallibrary/1106.pdf http://cbbep.org/publications/virtuallibrary/1106.pdf http://waterdata.usgs.gov/nwis/uv?site_no=08211500 http://waterdata.usgs.gov/nwis/uv?site_no=08211500 texas water journal, volume 9, number 1 43effects of the rincon bayou pipeline on salinity in the upper nueces delta [usdm] united states drought monitor. 2017. [internet] the national drought mitigation center (ndmc), the u.s. department of agriculture (usda) and the national oceanic and atmospheric association (noaa). available from: http://droughtmonitor.unl.edu/data/datatables. aspx http://droughtmonitor.unl.edu/data/datatables.aspx http://droughtmonitor.unl.edu/data/datatables.aspx texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta44 appendix appendix 1. rincon bayou pipeline pumping events from the nueces river authority. pumped inflow data were assigned pumping event numbers based on breaks in the pumping duration. a test run was conducted in 2007 with the pipeline beginning operation in september 2009. pumping event number duration number of days of inflow total pumped inflow acre-feet/ day ft 3/s (cfs) m3/s (cms) 0 april 17, 2007 1 36 18.15 0.51 1 sept. 28–oct. 21, 2009 24 2,987 1,506.05 42.65 2 jan. 6–14, 2010 9 742 374.12 10.60 3 may 10–31, 2010 22 2,288 1,153.61 32.67 4 march 21–30, 2010 10 1,006 507.23 14.37 5 may 3–12, 2011 10 1,002 505.21 14.31 6 june 13–22, 2011 10 994 501.17 14.19 7 sept. 13–14, 2011 2 98 49.41 1.40 8 nov. 2–22, 2011 21 2,027 1,022.01 28.95 9 march 7–19, 2012 13 1,309 660.00 18.69 10 june 21–july 13, 2012 23 2,354 1,186.89 33.62 11 aug. 7–24, 2012 18 2,004 1,010.42 28.62 12 aug. 27–28, 2012 2 109 54.96 1.56 13 sept. 14–16, 2012 3 212 106.89 3.03 14 sept. 30–oct. 1, 2012 2 135 68.07 1.93 15 oct. 5, 2012 1 36 18.15 0.51 16 oct. 8–18, 2012 11 1,981 998.82 28.29 17 oct. 27, 2012 1 27 13.61 0.39 18 nov. 26, 2012 1 31 15.63 0.44 19 dec. 8–9, 2012 2 95 47.90 1.36 20 dec. 16–20, 2012 4 159 80.17 2.27 21 jan. 15–16, 2013 2 62 31.26 0.89 22 jan. 26–28, 2013 3 152 76.64 2.17 23 april 29, 2013 1 40 20.17 0.57 24 may 14–15, 2013 2 15 7.56 0.21 25 june 1–10, 2013 9 847 427.06 12.10 26 june 24–july 2, 2013 8 731 368.57 10.44 27 july 17–24, 2013 8 665 335.29 9.50 28 aug. 12–13, 2013 2 161 81.18 2.30 29 aug. 20–22, 2013 2 124 62.52 1.77 30 aug. 27–29, 2014 3 273 137.65 3.90 31 sept. 12–13, 2013 2 161 81.18 2.30 32 oct. 11, 2013 1 45 22.69 0.64 33 oct. 21, 2013 1 27 13.61 0.39 texas water journal, volume 9, number 1 45effects of the rincon bayou pipeline on salinity in the upper nueces delta pumping event number duration number of days of inflow total pumped inflow acre-feet/ day ft 3/s (cfs) m3/s (cms) 34 oct. 24–30, 2013 7 1,131 570.25 16.15 35 nov. 2–9, 2013 8 1,190 600.00 16.99 36 nov. 22–dec. 1, 2013 9 509 256.64 7.27 37 dec. 4, 2013 1 31 15.63 0.44 38 dec. 7–8, 2013 2 73 36.81 1.04 39 dec. 17, 2013 1 17 8.57 0.24 40 dec. 30–31, 2013 2 107 53.95 1.53 41 jan. 10–13, 2014 4 177 89.24 2.53 42 jan. 21–22, 2014 2 89 44.87 1.27 43 jan. 25–28, 2014 3 141 71.09 2.01 44 feb. 3–15, 2014 13 2,466 1,243.36 35.21 45 feb. 26–27, 2014 2 105 52.94 1.50 46 march 10, 2014 1 87 43.87 1.24 47 april 15, 2014 1 8 4.03 0.11 48 may 9–june 3, 2014 24 2,736 1,379.49 39.07 49 june 23–july 15, 2014 23 3,531 1,780.33 50.42 50 july 19–21, 2014 3 177 89.24 2.53 51 aug. 26, 2014 1 18 9.08 0.26 52 sept. 24, 2014 1 66 33.28 0.94 53 sept. 30–oct. 1, 2014 2 116 58.49 1.66 54 oct. 4–6, 2014 3 264 133.11 3.77 55 oct. 17, 2014 1 35 17.65 0.50 56 jan. 18–27, 2015 9 695 350.42 9.92 57 march 10–12, 2015 3 210 105.88 3.00 58 march 18–25, 2015 8 1,535 773.95 21.92 59 april 13–28, 2015 16 2,455 1,237.81 35.06 60 may 12–june 15, 2015 35 8,884 4,479.31 126.86 61 aug. 29–sept. 2. 2015 5 448 225.88 6.40 62 sept. 21–22, 2015 2 167 84.20 2.38 63 sept. 26–oct. 1, 2015 6 475 239.50 6.78 64 oct. 17–nov. 10, 2015 25 3,734 1,882.68 53.32 texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta46 appendix 2. monthly (sic) pass-thru status report from the nueces river authority (2009 to 2015) with target inflows to nueces bay and/or the nueces delta established by the 2001 agreed order (tnrcc 2001). estuary inflows are reported as rincon bayou pipeline plus nueces river at calallen, texas. all data is reported in acre-feet (1 ac-ft = 1233.48 m3). target % values refer to the amount of water that is presently held in storage (% full of reservoir). date pumped inflow number of days pumped estuary inflow passthrough return flow credit previous month’s credit salinity relief credit required release to estuary at target % of full < 30% < 40% ≥ 30% < 70% ≥ 40% ≥ 70% 20 09 jan 0 0 301 1,219 500 847 0 0 1,200 2,500 2,500 feb 0 0 555 733 500 301 0 0 1,200 2,500 2,500 mar 0 0 546 471 500 555 0 0 1,200 3,500 3,500 apr 0 0 385 559 500 546 0 0 1,200 3,500 3,500 may 0 0 1,338 258 500 385 0 0 1,200 23,500 25,500 jun 0 0 313 64 500 1,338 0 0 1,200 23,500 25,500 jul 0 0 379 150 500 313 0 0 1,200 4,500 6,500 aug 0 0 204 100 500 379 0 0 1,200 5,000 6,500 sep 278 3 4,815 9,322 500 204 0 0 1,200 11,500 28,500 oct 2,709 21 6,009 5,813 500 -3,802 0 0 1,200 9,000 20,000 nov 0 0 3,529 4,000 500 -3,106 0 0 1,200 4,000 9,000 dec 0 0 1,017 1,743 500 -3,077 0 0 1,200 4,500 4,500 20 10 jan 742 9 7,626 1,875 500 -3,303 625 0 1,200 2,500 2,500 feb 0 0 4,698 1,250 500 0 1,250 0 1,200 2,500 2,500 mar 0 0 300 2,083 500 1,750 0 0 1,200 3,500 3,500 apr 0 0 3,856 2,625 500 0 875 0 1,200 3,500 3,500 may 2,288 22 10,139 2,500 500 1,731 0 0 1,200 23,500 25,500 jun 0 0 24,866 15,500 500 -12,471 0 0 1,200 23,500 25,500 jul 0 0 18,552 3,250 500 -2,598 3,250 0 1,200 4,500 6,500 aug 0 0 312 1,805 500 3,250 0 0 1,200 5,000 6,500 sep 0 0 25,412 12,969 500 312 0 0 1,200 11,500 28,500 oct 0 0 551 414 500 0 15,000 0 1,200 9,000 20,000 nov 0 0 230 480 500 0 2,250 0 1,200 4,000 9,000 dec 0 0 309 251 500 230 0 0 1,200 4,500 4,500 texas water journal, volume 9, number 1 47effects of the rincon bayou pipeline on salinity in the upper nueces delta date pumped inflow number of days pumped estuary inflow passthrough return flow credit previous month’s credit salinity relief credit required release to estuary at target % of full < 30% < 40% ≥ 30% < 70% ≥ 40% ≥ 70% 20 11 jan 0 0 1,333 1,533 500 309 0 0 1,200 2,500 2,500 feb 0 0 199 772 500 609 0 0 1,200 2,500 2,500 mar 1,006 10 1,198 984 500 199 0 0 1,200 3,500 3,500 apr 0 0 282 454 500 -90 0 0 1,200 3,500 3,500 may 1,002 10 1,504 205 500 192 0 0 1,200 23,500 25,500 jun 994 10 1,239 167 500 502 0 0 1,200 23,500 25,500 jul 0 0 74 317 500 242 0 0 1,200 4,500 6,500 aug 0 0 184 23 500 74 0 0 1,200 5,000 6,500 sep 98 2 610 273 500 184 0 0 1,200 11,500 28,500 oct 0 0 434 7,529 500 610 0 0 1,200 9,000 20,000 nov 2,027 21 434 262 500 -5,984 0 0 1,200 4,000 9,000 dec 0 0 162 666 500 221 0 0 1,200 4,500 4,500 20 12 jan 0 0 95 279 500 162 0 0 1,200 2,500 2,500 feb 0 0 230 209 500 95 0 0 1,200 2,500 2,500 mar 1,309 13 1,372 3,500 500 230 0 0 1,200 3,500 3,500 apr 0 0 827 2,529 500 0 0 0 1,200 3,500 3,500 may 0 0 1,110 23,500 500 0 0 0 1,200 23,500 25,500 jun 1,083 10 15,990 494 500 0 0 0 1,200 23,500 25,500 jul 1,271 13 2,159 297 500 0 0 0 1,200 4,500 6,500 aug 2,113 20 2,239 829 500 0 0 0 1,200 5,000 6,500 sep 286 4 399 8,156 500 0 0 0 1,200 11,500 28,500 oct 2,105 14 2,163 9,000 500 0 0 0 1,200 9,000 20,000 nov 31 1 36 686 500 0 0 0 1,200 4,000 9,000 dec 254 6 253 77 500 0 0 0 1,200 4,500 4,500 20 13 jan 214 5 214 1,200 500 0 0 0 1,200 2,500 2,500 feb 0 0 0 883 500 0 0 0 1,200 2,500 2,500 mar 0 0 0 164 500 0 0 0 1,200 3,500 3,500 apr 40 1 179 875 500 0 0 0 1,200 3,500 3,500 may 15 2 198 1,200 500 -195 0 0 1,200 23,500 25,500 jun 1,452 15 1,452 1,200 500 -697 0 0 1,200 23,500 25,500 jul 791 10 794 1,200 500 55 0 0 1,200 4,500 6,500 aug 558 7 558 273 500 149 0 0 1,200 5,000 6,500 sep 161 2 1,579 1,200 500 558 0 0 1,200 11,500 28,500 oct 1,203 9 9,646 3,213 500 600 0 0 1,200 9,000 20,000 nov 1,664 16 7,223 4,000 500 2,000 0 0 1,200 4,000 9,000 dec 263 7 283 283 500 2,250 0 0 1,200 4,500 4,500 texas water journal, volume 9, number 1 effects of the rincon bayou pipeline on salinity in the upper nueces delta48 date pumped inflow number of days pumped estuary inflow passthrough return flow credit previous month’s credit salinity relief credit required release to estuary at target % of full < 30% < 40% ≥ 30% < 70% ≥ 40% ≥ 70% 20 14 jan 407 9 413 220 500 283 0 0 1,200 2,500 2,500 feb 2,571 15 2,583 143 500 0 0 0 1,200 2,500 2,500 mar 87 1 89 74 500 0 0 0 1,200 3,500 3,500 apr 8 1 11 39 500 0 0 0 1,200 3,500 3,500 may 2,406 21 2,438 21,596 500 0 0 0 1,200 23,500 25,500 jun 1,400 11 18,938 14,059 500 -18,658 0 0 1,200 23,500 25,500 jul 2,638 18 16,418 1,839 500 -13,279 920 0 1,200 4,500 6,500 aug 18 1 134 134 500 600 0 0 1,200 5,000 6,500 sep 126 2 302 1,098 500 0 0 0 1,200 11,500 28,500 oct 355 5 605 836 500 -297 0 0 1,200 9,000 20,000 nov 0 0 433 867 500 -28 0 0 1,200 4,000 9,000 dec 0 0 157 150 500 0 0 0 1,200 4,500 4,500 20 15 jan 695 9 709 1,200 500 0 0 0 1,200 2,500 2,500 feb 0 0 26 0 500 0 0 0 1,200 2,500 2,500 mar 1,745 11 4,720 1,200 500 0 0 0 1,200 3,500 3,500 apr 2,455 16 7,039 300 500 0 900 0 1,200 3,500 3,500 may 5,562 20 124,478 1,704 500 0 6,612 0 1,200 23,500 25,500 jun 3,321 15 108,377 5,750 500 0 17,250 0 1,200 23,500 25,500 jul 0 0 482 0 500 0 4,500 0 1,200 4,500 6,500 aug 302 3 522 1,092 500 0 1,250 0 1,200 5,000 6,500 sep 717 9 838 1,282 500 -70 0 0 1,200 11,500 28,500 oct 2,075 16 3,516 9,000 500 -14 0 0 1,200 9,000 20,000 nov 1,818 10 9,260 3,000 500 -4,998 1,000 0 1,200 4,000 9,000 dec 0 0 326 2,910 500 1,762 0 0 1,200 4,500 4,500 texas water journal, volume 9, number 1 49effects of the rincon bayou pipeline on salinity in the upper nueces delta appendix 3. drought severity classification. u.s. drought monitor. d1 is the least intense level and d4 the most intense. d0 areas are not in drought, but are experiencing abnormally dry conditions that could turn into drought or are recovering from drought but are not yet back to normal. source: http:// droughtmonitor.unl.edu/aboutusdm/droughtclassification.aspx category description possible impacts palmer drought severity index (pdsi) cpc soilmoisture model (percentiles) usgs weekly streamflow (percentiles) standardized precipitation index (spi) objective drought indicator blends (percentiles) d0 abnormally dry going into drought: short-term dryness slowing planting, growth of crops or pastures. coming out of drought: some lingering water deficits pastures or crops not fully recovered. -1.0 to -1.9 21 to 30 21 to 30 -0.5 to -0.7 21 to 30 d1 moderate drought some damage to crops, pastures. streams, reservoirs, or wells low, some water shortages developing or imminent. voluntary wateruse restrictions requested -2.0 to -2.9 11 to 20 11 to 20 -0.8 to -1.2 11 to 20 d2 severe drought crop or pasture losses likely. water shortages common. water restrictions imposed. -3.0 to -3.9 6 to 10 6 to 10 -1.3 to -1.5 6 to 10 d3 extreme drought major crop/pasture losses. widespread water shortages or restrictions. -4.0 to -4.9 3 to 5 3 to 5 -1.6 to -1.9 3 to 5 d4 exceptional drought exceptional and widespread crop/ pasture losses. shortages of water in reservoirs, streams, and wells creating water emergencies. -5.0 or less 0 to 2 0 to 2 -2.0 or less 0 to 2 http://www.droughtmanagement.info/palmer-drought-severity-index-pdsi/ http://www.droughtmanagement.info/palmer-drought-severity-index-pdsi/ http://www.droughtmanagement.info/palmer-drought-severity-index-pdsi/ http://www.droughtmanagement.info/palmer-drought-severity-index-pdsi/ http://www.droughtmanagement.info/palmer-drought-severity-index-pdsi/ http://waterwatch.usgs.gov/ http://waterwatch.usgs.gov/ http://waterwatch.usgs.gov/ http://www.droughtmanagement.info/standardized-precipitation-index-spi/ http://www.droughtmanagement.info/standardized-precipitation-index-spi/ http://www.droughtmanagement.info/standardized-precipitation-index-spi/ http://www.cpc.ncep.noaa.gov/products/predictions/tools/edb/droughtblends.php http://www.cpc.ncep.noaa.gov/products/predictions/tools/edb/droughtblends.php http://www.cpc.ncep.noaa.gov/products/predictions/tools/edb/droughtblends.php http://www.cpc.ncep.noaa.gov/products/predictions/tools/edb/droughtblends.php http://www.cpc.ncep.noaa.gov/products/predictions/tools/edb/droughtblends.php systems-level thermodynamic and economic analysis texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university volume 9, number 1 2018 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. cover photo: sunrise over coastal bend bays & esturaries program land. © 2017 john reuthinger. see winning photos at wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, july 24, 2018 pages 82-95 abstract: this study includes thermodynamic and economic analyses of a seawater reverse osmosis (ro) plant integrated with a small-scale combined cycle natural gas (ccgt) plant ranging from 36–71 megawatts (mw). these analyses model electricity produced by the ccgt plant as power for the ro plant or for sale to the power grid. these analyses consider the coolant flow rate, carbon intensity, and capital and operating costs of the ccgt plant. for a case where the ro plant is sized according to the rated capacity of the ccgt plant, the maximum flow rate of coolant for the ccgt plant is only 8–10% of the total rate of seawater intake for the ro plant. thus, no additional intake capacity is needed for the ccgt plant. the carbon intensity of the ccgt plant varies from 802-885 pounds per megawatt-hour (lb/mwh) compared to an average carbon intensity of 1285 lb/mwh for the texas power grid. the economics of the integrated facility are evaluated using a levelized cost of water (lcow) framework, which accounts for the capital cost associated with the ccgt plant and electricity sales to the grid. results indicate that integrating an ro plant with a ccgt plant reduces lcow by 8–10% compared to an ro plant powered by electricity from the texas power grid. keywords: integrated power generation, desalination systems-level thermodynamic and economic analysis of a seawater reverse osmosis desalination plant integrated with a combined cycle power plant 1the university of texas at austin, department of mechanical engineering *corresponding author: reimers.andrew@utexas.edu texas water journal, volume 9, number 1 andrew s. reimers1*, michael e. webber1 citation: reimers as, webber me. 2018. systems-level thermodynamic and economic analysis of a seawater reverse osmosis desalination plant integrated with a combined cycle power plant. texas water journal. 9(1):82-95. available from: https://doi.org/10.21423/ twj.v9i1.7065. © 2018 andrew s. reimers, michael e. webber. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v9i1.7065 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 9, number 1 83thermodynamic and economic analysis of a seawater reverse osmosis desalination plant terms used in paper short name or acronym descriptive name ccap levelized capital cost for integrated power generation and desalination plants [$/kgal] ccgt combined cycle natural gas turbine power plant cf capacity factor for the desalination plant ci carbon intensity [lb/mwh] cpower cost of powering the desalination plant [$/kgal] crf capital recovery factor cro unit cost of reverse osmosis desalination [$/kgal] dam day-ahead market for electricity sales deep desalination economic evaluation program dt down time for the desalination plant [hr] eia energy information administration ercot electric reliability council of texas ero specific energy consumption for reverse osmosis [kwh/kgal fo&m fixed operation and maintenance cost for the power plant [$/kw-yr] hhv higher heating value, measurement of energy content in fuel iwpp independent water and power project kgal one thousand gallons lcow levelized cost of water [$/kgal] med multiple effect distillation msf multiple stage flash mw megawatts mwh megawatt-hour occ overnight capital cost [$/kgal per day for desalination or $/kw for power] pelec cost of purchasing of electricity from the grid [$/mwh] pelec, sell price at which electricity can be sold to the grid [$/mwh] png price of natural gas [$/mwth] relec revenue from electricity sales [$] ro reverse osmosis rr recovery ratio of clean water out versus seawater into the ro plant sgt siemens gas turbine t number of hours in a year t independent variable for an hour in a year tgt,out gas turbine exhaust temperature [°c] v̇in maximum seawater intake flow rate [kgal/hr] vo&m variable operation and maintenance cost of the power plant [$/mwh] vro desalination plant output [kgal] v̇ro, max maximum desalination plant capacity [kgal/hr] wgen electrical energy generated by the ccgt plant [mwh] ẇmax maximum power plant output [mw] wro energy consumption by the desalination plant [mwh] wsell electricity sold to the grid [mwh] xro on/off variable for the desalination plant ηhhv power plant efficiency [mwe/mwth] texas water journal, volume 9, number 1 thermodynamic and economic analysis of a seawater reverse osmosis desalination plant 84 introduction this study includes thermodynamic and economic analyses of a seawater reverse osmosis (ro) desalination plant integrated with a small-scale combined cycle natural gas turbine (ccgt) power plant. approximately 27% of the global population lives within 100 kilometers of the coast and less than 100 meters above sea level, making seawater desalination a viable alternative to conventional freshwater sources for much of the population (kummu et al. 2016). at the same time, demand for both water and electricity is increasing, and an integrated power generation and desalination facility can help address both needs simultaneously (oecd 2012, eia 2016a). there are several motivations for integrating a desalination plant with a power plant. depending on the specific arrangement of the desalination and power plants, an integrated facility might benefit from a variety of different features, including shared site permits and intake infrastructure and greater utilization of waste energy streams, which can reduce the cost and environmental impact caused by two separate facilities. desalination is more energy intensive and has a greater “carbon footprint” than conventional water treatment, but an ro plant integrated with a ccgt plant can be less carbon intensive than an ro plant that uses electricity from a grid reliant on generation from coal or oil-fired power plants (shrestha et al. 2011; liu et al. 2015). additionally, the facility’s operation and participation in both electricity and water markets can be optimized to maximize profitability while meeting demand for electricity and water. there are numerous desalination plants worlmaxidwide that are integrated or co-located with power plants. for example, the tuaspring reverse osmosis desalination plant in singapore has a capacity of 70 million gallons per day (mgd) that is integrated with a 411 megawatts (mw) combined cycle natural gas plant (water technology [no date]). in the united states, the tampa bay seawater desalination plant has a capacity of 25 mgd and shares intake infrastructure with tampa electric’s big bend power station, a 1700 mw coal plant (tampa bay water [no date]; teco [no date]). by sharing intake infrastructure, the feedwater for the ro plant can be preheated by using it as the coolant for the condenser of the power plant, and preheating the feedwater decreases the specific energy consumption of desalination (davis and cappelle 2013). this study seeks to answer several questions about the technical and economic tradeoffs of integrating a seawater ro plant with a small-scale ccgt plant. first, this analysis includes an estimation of the flow rate of seawater required for the cooling system of a small-scale ccgt plant compared to the feedwater flow rate of seawater going into a seawater ro plant. if the flow rate of coolant is less than the flow rate of feedwater for the ro plant, the ccgt plant can share a seawater intake with the ro plant. otherwise, the ccgt plant would require additional seawater intake capacity or have to use a recirculating cooling system with a cooling tower. regulations on intakes for power plant cooling systems such as section 316(b) of the clean water act in the united states tend to restrict the use of open cycle cooling systems (epa 2015). a downside of recirculating cooling systems with a cooling tower is that they consume more water than open-loop systems (stillwell 2010). cooling towers can use saltwater instead of freshwater, but using saltwater increases the maintenance cost and decreases the performance of the cooling tower (sharqawy et al. 2010). second, this study includes an estimation of the carbon intensity of a small-scale ccgt plant compared to the average carbon intensity of electricity purchased from the texas power grid. even though a natural gas fueled power plant will generate carbon emissions, the carbon intensity might be less than electricity purchased from a power grid that is still heavily reliant on coal-burning power plants. lastly, an optimization analysis and levelized cost of water (lcow) framework is used to estimate the cost of an ro plant integrated with a small-scale ccgt plant compared to a stand-alone ro plant. this framework takes into account the capital and operating costs associated with a seawater ro plant, the cost of powering an ro plant with electricity generated by a small-scale ccgt plant or purchasing electricity from the grid, the capital and fixed costs associated with a small-scale ccgt plant, and the revenues that can be earned by selling electricity to the grid. this kind of cost analysis is called a credit method because the revenues that can be earned by selling electricity to the grid are credited against the costs of desalinating water (mussati et al. 2003). this analysis considers the hourly wholesale price of electricity, and an optimization model is used to schedule the operation of an integrated ccgt-ro so as to maximize revenues from electricity sales while also achieving a prescribed capacity factor for the ro plant. this analysis differs from other cost analyses that only consider the average price at which electricity can be sold to the grid, such as the international atomic energy agency’s desalination economic evaluation program (deep) (iaea 2014). this study builds on the body of research on integrated power generation and desalination plants and relies on existing reports for the cost and specific energy consumption of desalination. a wide range of real-world costs and cost estimates for desalination has been reported in the literature (blank et al. 2007; reddy and ghaffour 2007; akgul et al. 2008; karagiannis and soldatos 2008; ghaffour et al. 2013). the cost of desalination has tended to decrease over time, particularly with improvements to ro technology in recent decades. the cost of desalination depends on a number of factors, including the type of desalination technology, the capacity and availability of the desalination plant, and the cost of energy. the cost of desalination varies based on site-specific factors such as feedtexas water journal, volume 9, number 1 85thermodynamic and economic analysis of a seawater reverse osmosis desalination plant are cheaper to operate than fossil fuel-burning power plants in terms of fuel and variable operation and maintenance cost per unit of electricity generated (lazard 2017). some of these analyses also take advantage of the deep cost-estimating tool and estimate that the cost of desalination with nuclear power is lower than the cost of desalination with fossil-fueled power plants, particularly when the cost of environmental externalities are also taken into consideration (nisan and dardour 2007; nisan and benzarti, 2008). however, these studies do not account for the capital cost associated with building new nuclear plants. much of the research on integrating desalination plants with fossil fuel and nuclear power plants focuses on large, commercial-scale power plants. the focus on commercial-scale plants can be explained by the fact that many large power plants have already been built and are operating worldwide, so integrating desalination plants into these existing systems does not require investment in new power generation capacity. commercial-scale power plants also tend to be more efficient than smaller power plants, resulting in lower energy costs for desalination. what these analyses fail to address, however, is whether it is cost effective to build new power generation capacity specifically for powering a desalination plant. a major technical difference between largeand small-scale power plants is the flow rate of water needed for a once-through cooling system. while a large power plant may need a much higher flow rate of cooling water than can be processed by a desalination plant, a small-scale power plant needs a much lower flow rate of cooling water and may be able to share an intake with a desalination plant. in addition to fossil fuel and nuclear power plants, there have also been many studies focused on integrating desalination plants with renewable energy sources such as wind, solar, and geothermal energy (al-karaghouli et al. 2009; charcosset 2009; eltawil et al. 2009; al-karaghouli and kazmerski 2013; gold and webber 2015). as with nuclear plants, one of the motivations for integrating desalination systems with renewable energy sources is that they do not emit carbon dioxide. another benefit of renewable energy systems is that they may be better suited than large power plants for providing energy in remote locales that aren’t connected to a power grid. however, the intermittency of renewable energy sources like wind and solar results in a lower capacity factor for the ro plant, which results in a higher lcow. for example, the capital cost for a 1000 mgd ro plant with a capacity factor of 50% is twice as much as a 500 mgd ro plant with a capacity factor of 100%, even though both plants produce the same amount of water on average. with the exception of gold and webber (2015), the existing literature lacks much consideration on the time-dependency of electricity demand and the price of electricity). such time-dewater quality and the cost of intake and outfall systems (ghaffour et al. 2013). the cost of energy depends on the specific energy consumption of the desalination plant and the cost of electricity used to power the desalination plant. the specific energy consumption of a desalination plant depends on a number of factors including the type of desalination technology, the quality and temperature of feedwater, the length of intake, the recovery ratio, and the use of energy recovery devices such as pressure exchangers (stover 2007; semiat 2008; stillwell and webber 2016). in general, the specific energy consumption of ro is lower than for thermal desalination technologies such as multiple stage flash (msf) or multiple effect distillation (med). much of the literature on integrating desalination plants with power plants focuses on fossil fuel-burning cogeneration or “dual-purpose” power and desalination plants wherein low-pressure steam is removed from the power cycle and used as the heat source for a thermal desalination plant (mussati et al. 2003; kamal 2005; nisan and benzarti 2008; mabrouk et al. 2010; wu et al. 2013, 2014). this kind of arrangement is common in the persian gulf countries because of its reliability and the availability of cheap energy (reddy and ghaffour 2007). there are also numerous studies that consider or focus on fossil fuel power plants integrated with a ro plant (bouhelal et al. 2004; kamal 2005; nisan and benzarti 2008; wu et al. 2013, 2014). these studies include in-depth analysis of the thermodynamic efficiency and economics of cogeneration power and desalination plants. some of these studies also include an optimization analysis to determine the optimal design of a cogeneration plant with constraints on water and electricity production (mussati et al. 2003; wu et al. 2013, 2014). several of these studies use the international atomic energy agency’s deep cost-estimating tool, which can estimate the cost of desalination for different technologies based on a variety of parameters including feedwater quality, fuel cost, and power plant availability (bouhelal et al. 2004; nisan and benzarti 2008; iaea 2014). the deep cost-estimating tool also estimates revenues earned from electricity sales based on an average price of electricity. there are also many articles focused on integrating desalination plants with nuclear power plants (nisan and dardour 2007; nisan and benzarti 2008; khamis 2010; khamis et al 2011; alonso et al. 2012; khamis and el-emam 2016). these studies consider the prospects for integrating desalination systems, both thermal and ro, with existing nuclear power plants as well as the potential for integrating desalination plants with next generation nuclear technologies. there are both economic and environmental motivations for these studies to focus on integrating desalination systems with nuclear power plants instead of fossil fuel-burning power plants. nuclear power plants do not emit carbon dioxide, and nuclear power plants texas water journal, volume 9, number 1 thermodynamic and economic analysis of a seawater reverse osmosis desalination plant 86 pendent factors have a significant effect on how an integrated power generation and desalination plant would optimally operate with the objective of minimizing operating costs and maximizing revenues from electricity sales. in general, an integrated power generation and desalination facility would tend to schedule the operation of the desalination plant around peak electricity demand and sell electricity to the grid instead. while the analytical framework presented in this manuscript is generalized in nature, it is illustrated for a site in texas for several reasons. texas’ annual water demand is projected to grow by more than 17% from 2020–2070, while texas’ electricity demand is projected to grow by almost 14% by as early as 2025 (ercot 2017; twdb 2017). thus, there is a need for additional water and electric power capacity. since 2003, the texas water development board has had a mandate to research the feasibility of investing in desalination as a means of increasing the state water supply (texas house of representatives 2003). even though the high cost and specific energy consumption for desalination has historically made it an unattractive water supply option compared to conservation or treating water from other sources, the availability of relatively affordable natural gas and ability to participate in a competitive power market might improve the economic viability of a desalination plant integrated with a ccgt power plant in a state expecting severe water stress (sturdivant et al. 2007; twdb 2017). this analysis focuses on the power market managed by the electric reliability council of texas (ercot), which accounts for about 90% of the state’s electric load (ercot [no date]). ercot is responsible for managing the grid and settling the buying and selling of electricity on a wholesale market. retail electric providers who purchase electricity on one of the ercot wholesale markets can then sell the electricity to end-users at a contracted rate. table 1. cost and performance specifications for the ccgt plants considered in this analysis. sgt model wmax[mwe] ηhhv occ [$/kw] 600 35.9 0.45 1359 700 45.2 0.47 1277 800 71.4 0.5 1091 methods integrated ccgt-ro plant specifications a schematic of an ro plant integrated with a ccgt plant is shown in figure 1. the ccgt plants considered for this analysis are based on the siemens gas turbine (sgt) line—sgt 600, 700, and 800, specifically—because of the suitability of these gas turbines for combined cycle applications, the availability of performance and cost-related data, and a range of sizes capable of running a large-scale seawater ro plant (siemens [no date]). the maximum power output (w max ), higher heating value (hhv) efficiency (ηhhv), and overnight capital cost (occ) of the ccgt plants were taken from the gas turbine world handbook (gtw 2015). higher heating value is a measure of the energy content of the fuel, and power plant efficiency is a measure of the electricity generated per unit of fuel energy consumed by the plant. these specifications are shown in table 1. the maximum power output of the ccgt was used to determine the maximum ro capacity, v ro,max , that could be powered by the ccgt, as shown in equation 1: gtcompressor generator st generator combustor heat recovery steam generator pump pump condenser reverse osmosis permeate out brine out 40%–50% recovery ratio e– e– feedwater in graphic: reimers & webber (2016) electric grid natural gas + air in exhaust out figure 1. for an ro plant integrated with a ccgt plant, electricity generated on site can be used to power the ro plant or sold to the grid. (gt = gas turbine; st = steam turbine) (1) texas water journal, volume 9, number 1 87thermodynamic and economic analysis of a seawater reverse osmosis desalination plant where ero is the specific energy consumption of the ro plant. note that the units for flow rates in the model are in thousand gallons per hour. this analysis assumes a specific energy consumption of 13.75 kwh per thousand gallons (kgal) for both the stand-alone ro plant and ccgt-ro plant (semiat 2008). note that the specific energy consumption of the integrated ccgt-ro plant could be slightly lower because of the feedwater being preheated with waste heat from the ccgt condenser (davis and cappelle 2013). this effect is assumed to be negligible because of the significantly lower cooling water flow rates compared to the overall flow rate of feedwater for the ro plant. this analysis assumes that the ro plant would have a recovery ratio, rr, between 40-50%, i.e., 40-50% of seawater intake is output as freshwater permeate, as indicated in figure 1 (adc [no date]; al-zahrani et al. 2012). the recovery ratio is used to calculate the intake size needed to accommodate the maximum ro capacity as shown in equation 2: where v in is the maximum seawater intake flow rate. coolant flow rate and carbon emissions the coolant flow rate for the ccgt plant was estimated using a thermodynamic model built in thermoflex, a commercial software package for modeling thermal systems (thermoflow [no date]). thermoflex includes numerous sample models of thermal systems, including a model of a basic ccgt plant. thermoflex also has a gas turbine library that includes performance specifications for many of the gas turbines on the market. the basic ccgt model was modified to include the siemens gas turbines described in table 1 and to include an open cycle cooling system rather than a cooling tower. site conditions based on typical weather data for the texas gulf coast region were also used as inputs to the thermoflex model. these inputs include ambient temperature, 21°c, seawater temperature, 20°c, and relative humidity, 75% (noaa [no date]; nrel [no date]). a detailed image and description of the thermoflex model is included in the appendix. after selecting a gas turbine and setting the site conditions, the model was run to determine the flow rate of coolant into the ccgt plant. the coolant flow rate for the ccgt plant was compared to the total flow rate of seawater into the ro plant to determine if additional intake capacity would be needed for an integrated ccgt-ro. table 2. operating cost components for ro desalination in $/kgal. component unit cost $/kgal chemicals 0.27 labor 0.25 parts 0.11 membranes 0.11 total 0.75 the carbon intensity of the ccgt plant, ciccgt, that is, the mass of co2 released per unit of electricity generated in lb/ mwh, was estimated using energy information administration (eia)’s reported values for the carbon intensity of natural gas, cing, approximately 117 lb/mmbtu, and the efficiency of the ccgt plant as shown in equation 3 (eia 2016b). for a stand-alone ro plant, the carbon emission intensity of electricity purchased from ercot was estimated to be approximately 1285 lb/mwh based on eia’s estimated emissions associated with power generation in the state of texas averaged from 2011–2015 (eia 2018a). note that marginal emissions associated with a new ro plant in texas would depend on the dispatch of power plants to meet the ro plant load and not just the fleet average emissions for ercot. economic analysis an optimization analysis was used to determine how an integrated ccgt-ro plant would operate on an hourly basis with the objective of minimizing the net cost of desalination. the results of this optimization analysis were used to estimate the lcow for an integrated ccgt-ro plant compared to a stand-alone ro plant. data from global water intelligence’s desaldata.com were used to estimate the operating cost of a seawater ro plant, cro, which includes the cost of chemicals, labor, replacement parts, and membranes as shown in table 2 (gwi 2016). as for the cost associated with powering an ro plant, this analysis assumes that a small-scale ccgt plant could be used to power an ro plant or sell electricity into the wholesale electricity market. conversely, a stand-alone ro plant would have to purchase electricity from a retail electric provider. texas-specific energy prices were used for this study, but this (3) (2) texas water journal, volume 9, number 1 thermodynamic and economic analysis of a seawater reverse osmosis desalination plant 88 analysis could be repeated using any electricity price data derived from an auction-based wholesale market and associated retail rates for fuel and electricity. the cost of powering a stand-alone (sa) ro plant, cpower,sa is defined by equation 4: (4) where wro,sa is the hourly electrical energy consumed by a stand-alone ro plant, and the retail price for electricity, pelec,buy is taken from eia’s monthly average prices for industrial customers in texas for 2011–2015 (eia 2016c). the hourly electricity consumed by a stand-alone ro plant is the product of the volume of water desalinated, vro, and the specific energy consumption of desalination as shown in equation 5. (5) the cost of powering an integrated (int) ccgt-ro, cpower,int, is defined by equation 6, and the revenues from electricity sales, relec, are defined by equation 7: (6) (7) where wgen is the hourly electrical energy generated by the ccgt, and wsell is the hourly electrical energy sold to the grid. the retail price for natural gas, png, is taken from eia’s monthly average prices for industrial customers in texas, and the wholesale electricity prices, pelec,sell, are based on ercot’s day-ahead-market (dam) settlement prices from 2011–2015 (eia 2018b; ercot 2018). the variable operation and maintenance cost of the ccgt plant, vo&m, is 3.6 $/mwh according to eia (eia 2013). all of the costs associated with operating an integrated ccgt-ro plant or stand-alone ro plant are included in the objective function defined by equation 8: (8) where the subscript j refers to either an integrated ccgt-ro (int) or stand-alone ro plant (sa). this optimization model includes several constraints on the ro and ccgt plants. the constraint on the maximum hourly output of the ro plant is defined by equation 9, and the minimum desalination output is defined as 40% of the maximum output as shown in equation 10 (egozy and faigon 2013): (9) (10) where xro is a binary variable that describes whether the ro plant is on or off. the minimum down time (dt) of the ro plant, set as five hours for this analysis, is defined by equations 11 and 12. the minimum annual capacity factor (cf) of the ro plant, set as 95% for this analysis, is defined by equation 13. (11) (12) (13) where t is the number of hours in a year. the ro plant integrated with a ccgt plant can only run when the ccgt plant is also running as shown in equation 14: (14) where xgen is a binary variable that describes whether the ccgt plant is on or off. the maximum hourly electricity generation from the ccgt plant, wgen, is defined by equation 15, and hourly electrical energy consumed by the ro plant, wro,int, is defined by equation 16. (15) (16) lastly, the hourly electricity generated has to be used to run the ro plant or sold to the grid as defined by equation 17. (17) this optimization analysis used fuel and electricity price data from 2011–2015 to determine whether the lower operating costs associated with generating electricity on site and the revenues associated with electricity sales are sufficient to justify the additional capital cost for integrating the ccgt plant with the ro plant. for a stand-alone ro plant, the amortized capital cost, ccap,s.a., is a function of the occ of the ro plant, the annual capacity factor of the ro plant, and the capital recovery factor, crf, as shown in equation 18. (18) texas water journal, volume 9, number 1 89thermodynamic and economic analysis of a seawater reverse osmosis desalination plant the occ of the ro plant is defined as 4280 $/kgal per day per the cost-estimating tool on global water intelligence’s desaldata.com. the crf was calculated using equation 19 and assuming an interest rate, i, of 8% and a project lifetime, n, of 20 years. note that these values were chosen for illustrative purposes and that this analysis can be done using any values for the interest rate and project lifetime. a higher interest rate or lower project lifetime would increase the capital cost. (19) for the integrated ccgt-ro, the occ and fixed operation and maintenance cost, fo&m, of the ccgt plant were normalized by the specific energy consumption of desalination to be in $/kgal as shown in equations 20 and 21. the occ of the ccgt plant is shown in table 1, and the fixed operation and maintenance cost for the ccgt plant is 13.2 $/kw-yr according to eia (eia 2013). the sum of amortized capital and fixed costs for the integrated ccgt-ro plant, ccap,int, is shown in equation 22. (20) (21) (22) the average cost of powering an integrated ccgt-ro or stand-alone ro plant, cpower,j, is defined as the sum of hourly power costs divided by the sum of hourly desalination volume as shown in equation 23. similarly, the average revenues earned from electricity sales for the integrated ccgt-ro plant, r elec , are defined as the sum of hourly electricity revenues divided by the sum of hourly desalination volume as shown in equation 24. (23) (24) the lcow is defined as the sum of the operating cost of the ro plant, the amortized capital cost, and the average cost of power minus the average revenues earned from electricity sales as shown in equation 25. (25) in summary, a simple thermoflex model of a ccgt plant based on the power plant specifications (table 1) and site conditions considered for this analysis was used to estimate the flow rate of water needed for the cooling system of a smallscale ccgt plant. this flow rate was compared with the total flow rate of seawater coming into the ro plant to determine if additional intake capacity would be needed for an integrated ccgt-ro plant. the carbon emission intensity of the ccgt plant was estimated based on the reported carbon emission intensity of natural gas and the efficiency of the ccgt plant as shown in equation 3. the carbon intensity of the ccgt plant was compared to the fleet average carbon intensity of the ercot power grid. an optimization analysis was used to estimate the lcow of an integrated ccgt-ro compared to a stand-alone ro plant. the decision variables used in this analysis include binary variables, xro and xgen, that describe whether the ro plant and ccgt are on or off. the decision variables also include continuous variables for the hourly volume of water desalinated, vro, hourly electricity generation, wgen, and the hourly electricity sold to the power grid, wsell. dependent variables include the hourly electricity consumed by the ro plant, wro, the hourly cost of powering the integrated ccgt-ro or stand-alone ro plant, cpower, and the hourly revenue earned from electricity sales, relec. these values, along with the operating costs associated with an ro plant and the amortized capital cost of an integrated ccgt-ro or stand-alone ro plant, were used to calculate the lcow with equation 24. results for small-scale ccgt plants ranging from approximately 36–71 mw, the cooling water flow rate ranges from 13 to 24 mgd, and the maximum desalination capacity (vro,max) ranges from approximately 63 to 125 mgd (3-6 million gallons per hour) as shown in figure 2. for context, sorek, the largest seawater ro plant in the world, has a capacity of 165 mgd (ide [no date). assuming a recovery ratio of 40–50%, the necessary flow rate of seawater intake would range from 125–312 mgd. thus, only 8–10% of the seawater intake for the ro plant would be needed to cool the power plant. the carbon intensity of the ccgt plant varies from 802-885 lb/ mwh, 33–39% less than the average carbon intensity of 1285 lb/mwh for electricity purchased from ercot as shown in figure 3. electricity purchased from ercot has a higher carbon intensity because coal accounted for 27-36% of ercot’s generation mix from 2011–2015 (eia 2018a). compared to a stand-alone ro plant with the same desalination capacity, an integrated ccgt-ro has higher amortization costs but lower power costs. subtracting the amortized capital cost of a stand-alone ro plant, equation 18, from the amortized capital cost of an integrated ccgt-ro plant, equation 22, the additional capital cost associated with the power plant is approximately 0.17-0.21 $/kgal as shown in figure 4. http://desaldata.com texas water journal, volume 9, number 1 thermodynamic and economic analysis of a seawater reverse osmosis desalination plant 90 from equation 23, the average cost of powering a stand-alone ro plant is approximately 0.68 $/kgal compared to 0.31-0.34 $/kgal for an integrated ccgt-ro plant as shown in figure 5. an integrated ccgt-ro plant also earns approximately 0.08 $/kgal in revenues from electricity sales. from equation 25, the lcow for a stand-alone ro plant is approximately 2.69 $/kgal compared to 2.40-2.47 $/kgal for an integrated ro plant, a decrease of 8–10%, as shown in figure 6. as would be expected from the decreasing amortization and power costs in figures 4 and 5, the lcow tends to decrease when the ro plant is integrated with a bigger, more efficient ccgt plant. discussion this study focused on the implications of integrating a seawater ro plant with a ccgt plant much smaller than what is typically built to be competitive in the electric power market. there were several motivations for considering such a smallscale ccgt plant. for example, even though it may make sense to integrate an ro plant with an existing large-scale power plant, it may not make as much sense to construct a new large-scale power plant just to power an ro plant. one dimension in which a small-scale ccgt plant might be preferable to a larger plant is that the cooling system of a small plant needs only a fraction of the total flow rate of seawater coming into figure 2. the flow rates [tcm/d] of power plant coolant are only 8–10% of the total flow rate of seawater intake for the ro plant assuming a 40 – 50% recovery ratio. figure 5. the power cost for a stand-alone ro plant is approximately 0.68 $/kgal compared to 0.31-0.34 $/kgal for an integrated ccgt-ro plant. an integrated ccgt-ro plant also earns approximately 0.08 $/kgal in revenues from electricity sales. figure 6. the lcow for a stand-alone ro plant is approximately 2.69 $/kgal compared to 2.40-2.47 $/kgal for an integrated ro plant, a decrease of 8–10%. figure 3. the average carbon intensity associated with electricity purchased from ercot is approximately 1285 lb/mwh compared to 802-885 lb/mwh for a range of small-scale ccgt plants that could supply power to an ro plant. figure 4. the additional capital cost associated with the power plant for the integrated ccgt-ro is approximately 0.17-0.21 $/kgal. texas water journal, volume 9, number 1 91thermodynamic and economic analysis of a seawater reverse osmosis desalination plant the ro plant, and so no additional intake capacity is needed. a once-through cooling system for a 500 mw ccgt plant, on the other hand, would need an intake of more than 130 mgd, i.e., approximately 30% more than the intake for the carlsbad ro plant outside san diego, california, the largest seawater desalination plant in the western hemisphere (poseidon water 2017). even though a small-scale ccgt plant is less efficient and has a higher overnight capital cost than a large-scale ccgt plant, an ro plant integrated with a small-scale ccgt plant still outperforms a stand-alone ro plant thermodynamically and economically. the carbon intensity of electricity produced by a small-scale ccgt plant is more than a third lower than the average carbon intensity of electricity on the ercot grid. however, ercot’s carbon intensity is trending downward as wind, solar, and natural gas are replacing coal generation. even so, the levelized cost analysis used in this study indicates that an ro plant integrated with a small-scale ccgt benefits enough from reduced energy costs and revenues from electricity sales to justify the capital and fixed costs associated with the ccgt plant. this analysis assumed that the specific energy consumption of desalination was 13.75 kwh/kgal. this number is based on the most recently built large-scale desalination plants. as the specific energy consumption for seawater reverse osmosis decreases, the energy savings from integrating an ro plant with a small-scale ccgt plant decreases. for example, the affordable desalination coalition has reported specific energy consumption as low as 6.6 kwh/kgal for a demonstration project (adc [no date]). with such a low specific energy consumption, the energy savings from integrating an ro plant with a small-scale ccgt plant would be only 0.19–0.23 $/kgal instead of the 0.22-0.29 $/kgal energy savings reported in the results. similarly, the energy savings would be higher than 0.22-0.29 $/kgal if the specific energy consumption was greater than 13.75 kwh/kgal. the optimization analysis used to estimate the optimal hourly operation for an integrated ccgt-ro plant included an annual capacity factor constraint for the ro plant. a consequence of such a constraint is that the capacity factor of the ro can vary on a monthly basis, with the ro plant running less often in months with high wholesale electricity prices to maximize the revenues that can be earned from electricity sales. averaging the optimal operating schedule of a ccgt-ro for the years 2011–2015 that were considered in this analysis, the capacity for the ro plant varies from as low as 86% in august to over 98% in months like november, december, and january as shown in figure 7. these variations correspond to the monthly average wholesale electricity prices also shown in figure 7. note that the august prices are skewed by the extremely high prices from 2011 when the hourly average price was over 150 $/mwh. these results indicate that the owner of an integrated ccgt-ro plant would benefit from flexible purchase agreements that allow for some variation in monthly operation. conversely, hot, dry months with high electricity prices may be coincident with high water demand or water scarcity. thus, customers for desalinated water might choose to have water purchase agreements that require the ro plant to produce a minimum amount of desalinated water on a monthly basis. future research should consider how stricter constraints on the monthly or daily capacity factor for the ro plant would impact estimates for the revenues that can be earned from electricity sales. when comparing the cost of an integrated ccgt-ro with that of a stand-alone ro plant, it is assumed that a stand-alone ro plant would have to purchase electricity from the grid at a monthly retail rate. if a stand-alone ro plant were instead allowed to purchase electricity at rates based on the time of use, it is conceivable that the average price of electricity could be cheaper if the ro plant is able to schedule its operation around peak electricity prices. it is also conceivable that timeof-use rates could be designed in such a way that there could be times of day or short-term market conditions when it would be cheaper to power an integrated ccgt-ro plant with electricity purchased from the grid rather than generating electricity on site. future research should investigate how incorporating different time-of-use rates into this analysis would affect the results. figure 7. with an annual capacity factor constraint for the ro plant, operation of a ccgtro plant varies over the course of the year to maximize revenues earned from electricity sales. texas water journal, volume 9, number 1 thermodynamic and economic analysis of a seawater reverse osmosis desalination plant 92 conclusions there are several benefits from integrating and powering an ro plant with a small-scale ccgt plant rather than purchasing electricity from the grid. with a small-scale ccgt plant, no additional intake capacity is needed for the power plant cooling system. in texas, the carbon emission intensity for a small-scale ccgt plant is more than 33% lower than the average carbon intensity of electricity on the ercot power grid. from an economic standpoint, the cost of powering an integrated ccgt-ro is, on average, less than half the cost of powering a stand-alone ro plant with retail electricity. this reduction plus revenues earned from electricity sales are sufficient to justify the additional capital and fixed costs associated with the ccgt plant. acknowledgments i would like to thank the professionals at cb&i, invenergy, and ide whose intellectual input and financial support have been very valuable. i would also like to thank the kuwait foundation for the advancement of sciences research directorate for their support of this project. lastly, i would like to thank jeff philips for his help in designing graphics for this paper. this research did not receive any specific grant from funding agencies in the public, commercial, or not-for-profit sectors. references [adc] affordable desalination coalition. 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[cited 2018 february 14];22(3):330– 338. available from: https://doi.org/10.1016/s10049541(14)60036-7. appendix steam turbine seawater in the cooling tower was replaced with an open loop cooling system thermoflex has a built-in library of gas turbines that includes the sgt models considered in this analysis. seawater out figure 8. a sample ccgt model included with thermoflex was used to estimate the coolant flow rate for a ccgt plant. this model was modified to have an open loop cooling system and the sgt models (600, 700, 800) described in the paper. https://www.water-technology.net/projects/tuaspring-desalination-and-integrated-power-plant/ https://www.water-technology.net/projects/tuaspring-desalination-and-integrated-power-plant/ https://doi.org/10.1016/j.desal.2013.06.006 https://doi.org/10.1016/j.desal.2013.06.006 https://doi.org/10.1016/s1004-9541(14)60036-7 https://doi.org/10.1016/s1004-9541(14)60036-7 effects of an off-stream watering facility on cattle behavior and instream e. coli levels texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 4, number 2 2013 texas water journal http://texaswaterjournal.org volume 4, number 2 2013 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. edwards aquifer authority robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: as texas continues to face water challenges and drought, many communities are seeking to conserve water in various sectors, including lawn and landscape water use. ©jose manuel gelpi diaz, crestock http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 4, number 2, pages 1–13 abstract: excessive levels of fecal bacteria are the leading cause of water quality impairment in texas, and livestock with direct access to water bodies are potentially a significant source of these bacteria. to help address this, the effect of providing alternative off-stream watering facilities to reduce manure, and thus bacterial, deposition in or near surface waters was evaluated from july 2007 to july 2009 in clear fork of plum creek in central texas. an upstream-downstream, pre-treatment, and post-treatment monitoring design was used with off-stream water provided only during the second year of the study. flow, escherichia coli (e. coli) concentration, and turbidity were measured twice monthly. cattle movements were tracked quarterly using global positioning system collars to assess the effect of providing alternative water on cattle behavior. results showed that when alternative off-stream water was provided, the amount of time cattle spent in the creek was reduced 43%. as a result, direct deposition of e. coli into clear fork of plum creek was estimated to be reduced from 1.11 × 107 to 6.34 × 106 colony forming units per animal unit per day. observed pre-treatment and post-treatment instream e. coli loads suggested similar reductions; however, these reductions were not statistically significant. keywords: cattle, e. coli, gps collars, off-stream water, best management practice kevin l. wagner1, larry a. redmon2, terry j. gentry3, r. daren harmel4, robert knight5, c. allan jones6, jamie l. foster7 effects of an off-stream watering facility on cattle behavior and instream e. coli levels 1associate director, texas water resources institute, texas a&m university, college station, texas; 2professor and state forage specialist, department of soil and crop sciences, texas a&m university, college station, texas; 3assistant professor of soil and aquatic microbiology, department of soil and crop sciences, texas a&m university, college station, texas; 4agricultural engineer, usda-ars, grassland soil and water research laboratory, temple, texas; 5associate professor, department of ecosystem science and management, texas a&m university, college station, texas; 6research scientist, spatial sciences laboratory, department of ecosystem science and management, texas a&m university, college station, texas; 7assistant professor, department of soil and crop sciences, texas a&m university, college station, texas. texas water journal, volume 4, number 2 citation: wagner kl, redmon la, gentry tj, harmel rd, knight r, jones ca, foster jl. 2013. effects of an off-stream watering facility on cattle behavior and instream e. coli levels. texas water journal. 4(2):1-13. available from: https://doi.org/10.21423/twj.v4i2.6460. © kevin l. wagner, larry a. redmon, terry j. gentry, r. daren harmel, robert knight, c. allan jones, jamie l. foster. 2013. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https:// creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v4i2.6460 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 4, number 2 2 effects of an off-stream watering facility effects of an off-stream watering facility short name or acronym descriptive name au animal unit bmp(s) best management practice(s) cfu colony forming units epa u.s. environmental protection agency gis geographic information system gps global positioning system tmdl total maximum daily load usgs united states geological survey terms used in paper texas water journal, volume 4, number 2 3effects of an off-stream watering facility effects of an off-stream watering facility introduction livestock with direct access to water bodies have been identified as significant sources of bacteria in numerous bacterial total maximum daily loads (tmdls) in texas (tceq 2007a, 2007b). because excessive levels of fecal indicator bacteria (escherichia coli [e. coli], enterococcus, and fecal coliforms) are the number one cause of water quality impairment in texas, causing 295 of the 516 water quality impairments in the state (tceq 2008), and beef cattle production is the largest agricultural enterprise in texas, it is critically important to identify effective and accepted management practices that address potential contributions. in the plum creek watershed, where this study takes place, there are an estimated 33,000 beef cattle, representing the primary class of livestock. because livestock are often the easiest potential agricultural source to manipulate to reduce bacterial loads, the plum creek watershed protection plan targeted agricultural nonpoint source management measures addressing the potential impact of animals grazed near streams or drainage areas or those permitted direct access to stream and riparian corridors (berg et al. 2008). cattle are drawn to streams and adjacent riparian areas by water, shade, and the quality and variety of forage present (kauffman and krueger 1984). the length of time cattle spend in a stream, however, plays a significant role in potential fecal contamination (mosley et al. 1999). when cattle have stream access, a portion of their fecal matter is deposited directly into the stream (larsen et al. 1988) and can be a significant source of contamination. gary et al. (1983) observed that cattle spent 5% of the day in or adjacent to the stream and that 6.7% to 10.5% of defecations were deposited directly in the stream. feces deposited in streams have a greater impact on water quality than that deposited away from streams. larsen et al. (1994) found that manure deposited 0.6 meters and 2.1 meters from a stream contributed 83% and 95% less bacteria, respectively, than that deposited directly in a stream. tiedemann et al. (1987) and mosley et al. (1999) suggested that animal access to streams had a greater impact on stream bacterial levels than stocking density. thus, riparian protection is needed to reduce manure deposition in or near surface waters (ball et al. 2002). exclusion of livestock from riparian areas by fencing of streams is frequently recommended to reduce manure inputs to surface water (godwin and miner 1996; mciver 2004). numerous studies have shown that fencing of streams, alone or in combination with other best management practices (bmps), can reduce e. coli levels by 37% to 46% (meals 2001, 2004), enterococcus by 57% (line 2003), and fecal coliforms by 30% to 94% (brenner et al. 1994; brenner 1996; cook 1998; hagedorn et al. 1999; lombardo et al. 2000; meals 2001,; line 2002; line 2003; meals 2004). however, exclusionary fencing is costly to install and maintain (godwin and miner 1996; sheffield et al. 1997; byers et al. 2005), results in loss of grazing area and ranching income, restricts access to reliable water sources, and may be inconvenient and impractical for many ranches. thus, many ranchers oppose it (mciver 2004). other concerns have recently been raised regarding the impact of increasing wildlife populations in fenced riparian zones, potentially negating e. coli loading reductions provided by restricting livestock access (hagedorn 2012). another practice available to protect riparian areas and reduce manure deposition in or near surface waters is the development of alternative watering facilities (fca 1999; tate et al. 2003; byers et al. 2005). a permanent or portable off-stream water supply provides livestock another drinking water source, which can be used alone or in conjunction with other practices to reduce the time livestock spend near surface waters and in riparian areas. to achieve optimum uniformity of grazing and the greatest use of alternative water sources, cattle should not have to travel more than 200 to 300 meters to water (mciver 2004). alternative water sources benefit livestock producers by improving grazing distribution, reducing herd health risks caused by drinking or standing in contaminated water, decreasing herd injuries from cattle traversing steep or unstable streambanks, increasing water supply reliability during droughts, and increasing weight gains in beef cattle by 0.1 to 0.2 kilograms/day (willms et al. 1994; buchanan 1996; porath et al. 2002; willms et al. 2002; veira 2003; dickard 1998). alternative off-stream water supplies can also provide environmental benefits including reduced manure deposition and bacterial contamination of surface waters and reduced streambank destabilization and erosion due to trampling and overgrazing of banks. previous research demonstrated that cattle spent 85% to 94% less time in streams (miner et al. 1992; clawson 1993; sheffield et al. 1997) and 51% to 75% less time within 4.6 meters of streams when an off-stream watering facility was available (godwin and miner 1996; sheffield et al. 1997). as a result, godwin and miner (1996) suggested that under baseflow conditions, off-stream watering was nearly as effective as fencing in reducing manure inputs to surface water, thus reducing water quality impacts of grazing cattle at a reduced cost. sheffield et al. (1997) confirmed this, finding that as a result of the reduction in time cattle spent in and near streams, instream fecal coliform concentrations were reduced by an average of 51%. however, results varied among sites with statistically significant reductions in fecal coliform levels of 99%, 87%, and 57% being observed at 3 sites and a 53% increase, which was not statistically significant, being observed at 1 site. further, byers et al. (2005) found that providing water troughs decreased the amount of time cattle spent withtexas water journal, volume 4, number 2 4 effects of an off-stream watering facility effects of an off-stream watering facility in 12 meters of a stream, but that the result was dependent on time of year with a reduction of 40% observed in march 2002, 96% in december 2002, and approximately 60% in july 2003. byers et al. (2005) also found that although alternative water did not impact stormwater e. coli concentrations, median baseflow e. coli loads decreased 95% in 1 pasture and 85% in another when water troughs were available. however, as a result of drought, streamflow was 51% smaller in the second year of the study when the troughs were available, thus impacting the load differences. with the exception of the study conducted by byers et al. (2005), which used global positioning system (gps) collars, previous studies used light beam counters (godwin and miner 1996), visual observations (miner et al. 1992; sheffield et al. 1997), and time-lapse cameras (clawson 1993) to evaluate cattle behavior during daylight hours. however, nighttime observations can be critical because cattle exhibit bimodal grazing patterns (early morning and evening) with certain breeds spending a greater portion of the night grazing as compared to daytime (pandey et al. 2009). the use of gps and geographic information system (gis) technology allows livestock behavior to be evaluated with greater spatial and temporal resolution. animals can be tracked 24 hours a day using gps receivers incorporated into animal collars (pandey et al. 2009). agouridis et al. (2005) evaluated gps collars to determine accuracy for applications pertaining to animal tracking in grazed watersheds and found the collars were accurate within 4 to 5 meters and thus acceptable for most cattle operational areas (pandey et al. 2009). observation periods of these earlier studies were also generally of short duration, focusing on specific seasons. these studies also targeted the pacific northwest (miner et al. 1992; clawson 1993; godwin and miner 1996), eastern (sheffield et al. 1997), and southeastern united states (byers et al. 2005). these are regions with conditions different from much of texas and the mid-section of the country where a majority of u.s. cattle production occurs. finally, these studies, with the exception of byers et al. (2005), did not evaluate the impacts of off-stream water on e. coli levels, which are the focus of most tmdls in texas. therefore, the objectives of this study were to assess the effect of providing an off-stream watering facility on reducing the percent time cattle spend in streams and riparian zones and the level of bacterial contamination of streams. stakeholders, natural resource agencies, and others working to improve water quality need this information not only to better understand the effectiveness of alternative water as a water quality bmp but to improve the predictive capabilities of water quality models used for tmdls and watershed-based plans. the results are applicable to texas, the mid-section of the united states, and other regions around the world with similar climates and grazing systems. materials and methods site description this study was conducted on a commercial cow-calf operation located in caldwell county, texas, bisected by clear fork of plum creek. although the drainage area above the ranch is only 26 square kilometers, clear fork of plum creek is typically a perennial stream as a result of a number of springs. the creek is 0.3 to 10.3 meters wide and less than 1 meter deep. thus, the creek is generally not of sufficient depth for cattle to cool off in. the average slope of the stream is 0.3% while the average slope perpendicular to the stream is 5.4%. clear fork of plum creek is a tributary of plum creek, which is listed on the 303(d) list as impaired by excessive levels of e. coli and is the focus of watershed restoration efforts through a watershed-based plan. the ranch is in the texas blackland prairies ecoregion (omernik 1987) where annual precipitation averages 89 centimeters. however, as the result of a severe drought, which began in the spring of 2008, only 56 centimeters of rainfall was received in year 1 and 40 centimeters received in year 2. average annual temperatures were normal (20 oc) in year 1 and higher than average (20.6 oc) during year 2. the flood plain soils along the creek are dominated by the tinn series, a very deep, moderately well-drained, very slowly permeable soil formed in calcareous clayey alluvium. upgradient of the tinn soil is the branyon clay, which, like the tinn soil, is a very deep, moderately well-drained, very slowly permeable soil. finally, soils in the upland areas of the ranch are comprised of lewisville soils, very deep, well-drained, moderately permeable soils on slopes of 0% to 10% (soil survey staff 2011). the predominant forage in the creek pasture is common bermudagrass (cynodon dactylon l.). vegetation in the 3 off-creek pastures (figure 1) is ww-b dahl bluestem (bothriochloa bladhii l.), old world bluestem (bothriochloa ischaemum l.), and native grasses. vegetation along the creek consists primarily of common bermudagrass with few trees or other typical riparian vegetation present. less than 5% of the stream and its riparian area is shaded; thus, shade is not a major attractant of cattle to the creek and riparian zone. with the exception of the creek pasture, most of the operation was in row crop production until 2003 when it was converted to pastureland in 2004. the site of this study has many similarities to that of the byers et al. (2005) study with a few notable exceptions. in general, stream slopes, forages present, and the climate of both sites are very similar. daily highs and lows in this study area are on average only 2 oc and 3 oc warmer, respectively, than those of byers et al. (2005). rainfall is on average 28.9 centimeters lower in this study area compared to those of byers texas water journal, volume 4, number 2 5effects of an off-stream watering facility effects of an off-stream watering facility et al. (2005) and as such, humidity is on average lower in this study area, as well. the most notable difference between study areas is the amount of riparian vegetation. in this study, riparian shade was present in less than 5% of the riparian area, whereas it comprised 78% to 85% of the riparian area of byers et al. (2005). this is not surprising as the region of byers et al. (2005) study was primarily forested (94% forested) whereas the region of this study was primarily comprised of crop and grass lands with only 14% forested. pasture management four pastures, ranging in size from 12 to 15 hectares were used during the study (figure 1). cattle had complete and continuous access to the creek and creek pasture throughout the study. cattle were allowed access to the other pastures as needed. during the first year of the study (july 2007–july 2008), pastures were stocked with 54 crossbred cows with calves and 2 bulls (57 animal units [aus]). during the second year of the study (july 2008–july 2009), the pastures were stocked with 72 cows with calves and 3 bulls (76 aus). the stocking rate was increased in the second year as the cooperating landowner consolidated herds from 2 ranches in response to the severe drought, making feeding, watering, and caring for the livestock easier until conditions improved. water troughs supplying well water were present in all pastures but were turned off during the first year of the study (with the exception of 2 weeks in january 2008), forcing the cattle to water in the creek only. in january 2008, several calves became ill with bovine respiratory disease and water troughs were activated for a period of 2 weeks then turned off again and remained off until july 6, 2008. the troughs were turned on for the second year of the study and provided cattle an alternative water source. distance between the water trough and stream in the creek pasture was approximately 137 meters. gps tracking of cattle each quarter throughout the 2-year study, 6 to 8 randomly selected cows were collared with lotek® gps 3300lr collars (lotek wireless inc., newmarket, ontario, canada). the collar manufacturer reports that, with differential correction applied, horizontal accuracies of position readings have errors less than 5 meters. positional readings were collected at a 5-minute fixed interval, providing up to 6,624 locations by each collar each quarter. cattle movement was tracked for 21 to 23 days, and then the collars were removed. collar data were downloaded using lotek host software and differentially corrected using data from the nearest national geodetic survey continuously operating reference stations base-station. differentially corrected collar data were then combined with sensor data and converted to database files for analysis. to analyze positional readings collected from the gps collars, arcview (arcgis 9, arcmap version 9.2, esri, redlands, ca) software was used. for each collar, the number of positional points in the stream—within 0.6 meters of the midpoint of the stream and within 4.6 meters of the stream—were determined using the “select by location” function. percent time spent within each distance from the stream was determined by dividing the number of positional points within each buffer by the total number of positional readings taken. percent time was then converted to minutes per day. instream sampling procedures sites located at the inflow and outflow of clear fork of plum creek to the ranch, pc1 (29°53’35.81”n/97°45’21.06”w) and pc2 (29°53’23.28”n/97°45’2.67”w), respectively, were monitored to assess effectiveness of alternative off-stream water (figure 1). these sites are approximately 0.8 kilometers apart. grab samples were collected and analyzed on a semi-monthly basis at both sampling sites when water was flowing. water samples were collected directly from the stream, midway in the water column into sterile whirl-pak® bags. bags were held upstream of the sampler and care exercised to avoid contact with sediment and the surface micro layer of water. after collection, samples were placed on ice for transport to the lab where they were stored at 4 oc until analysis. figure 1. pasture configuration, water sample collection sites, and flow measurement site at cooperating ranch near lockhart, texas. texas water journal, volume 4, number 2 6 effects of an off-stream watering facility effects of an off-stream watering facility flow calculation flow depth was measured semi-monthly in conjunction with water sample collection. measurements were made in a 0.9 meter corrugated metal culvert located at a stream crossing 0.16 kilometers below pc1 and 0.64 kilometers above pc2. manning’s equation (grant 1991) was used to estimate flow rate for each sampling event. the manning roughness coefficient (n) was determined from field measurements of flow depth and velocity and compared to published values by grant (1991) for corrugated metal subdrains. slope (s) from pc1 to pc2 was determined using field evaluation of slope. area (a) and hydraulic radius (r) were obtained from published values (grant 1991) based on the observed depth (d) in relation to the culvert depth (d). analytical methods water sample analysis was conducted within 6 hours of collection. e. coli in water samples were enumerated using u.s. environmental protection agency (epa) method 1603 (epa 2006). if counts were greater than 200 colonies at the highest dilution, the count was reported as too numerous to count. results were reported as colony forming units (cfu) per 100 milliliters. finally, an aquafluortm handheld fluorometer/ turbidimeter (model 8000-010, turner designs, sunnyvale, ca) was obtained in february 2008 allowing measurement of turbidity throughout the remainder of the study. turbidity measured in water samples was reported in nephelometric turbidity units. additionally, to approximate deposition of e. coli in the stream before and after alternative off-stream water was provided, percent time spent by cattle in the stream as determined by the gps collars was multiplied by published fecal coliform production values (5.4 × 109 cfu/au/day) (metcalf and eddy 1991) and then converted to e. coli concentrations by multiplying the result by 0.63 as epa suggests (hamilton et al. 2005). evaluation of e. coli loads flow rate at the time of each grab sample was assumed to represent the daily average (cubic meters per second). these flow rates, along with the e. coli concentrations, were used to estimate the daily loads for the upstream and downstream sites, pc1 and pc2 respectively. the daily load contributed by the study area was calculated by subtracting the upstream load from the downstream load (pc2 – pc1). this was converted to an au basis by dividing the daily loads contributed by the study area by the number of aus present in the study area during the respective period (57 aus during year 1 and 76 aus during year 2). statistical analysis the statistical software, minitab (minitab inc., state college, pennsylvania), was used for all statistical calculations. basic statistics and graphical summaries of each dataset were created to evaluate means, medians, quartiles, confidence intervals, and normality using the anderson-darling normality test. as a majority of datasets were not normally distributed, they were evaluated with nonparametric statistics. the mann-whitney statistical test was used to assess the differences in median (1) minutes cattle spent per day instream and within 4.6 meters of the creek; (2) flows; (3) e. coli concentrations; (4) e. coli loads from the study area; and (5) turbidities observed between sites and/or periods (with versus without alternative water). an alpha level of 0.05 was used as the level of significance, thus results were considered statistically significant when p < 0.05. regression analysis was used to evaluate the relationship between e. coli concentrations at pc1 and pc2, as well as between e. coli concentrations and turbidity. coefficient of determination values were used to evaluate the strength of regression equations for e. coli concentrations. finally, analyses of covariance were developed using the minitab general linear model, specifying the responses as pc2 turbidity, the model as the treatment period (with alternative water) or calibration period (without alternative water), and the covariate as pc1 turbidity. results and discussion gps tracking of cattle comparison of the amount of time cattle spent in and near the creek with and without alternative water indicated that providing alternative off-stream water reduced the time cattle spent in the stream and within 4.6 meters of the creek (figure 2). because shade along the riparian zone was limited (< 5%) and stream depth was not suitable for cooling, it can be assumed that observed reductions resulted from cattle drinking from the alternative water supply and not the stream. analysis of the gps collar data (table 1) indicated that providing alternative off-stream water significantly reduced the median amount of time cattle spent in and near the creek (p < 0.01). the amount of time cattle spent within 4.6 meters of the creek was reduced 52% from 25 to 2 minutes/au/day when provided with off-stream water, compared to the 75% reduction from 15 to 4.25 minutes/au/day found by godwin and miner (1996) and 51% reduction from 12.7 to 6.2 minutes/ au/day found by sheffield et al. (1997). although the percent reductions from this study were similar to those of sheffield et al. (1997), the amount of time cattle spent near the stream varied substantially between the studies. texas water journal, volume 4, number 2 7effects of an off-stream watering facility effects of an off-stream watering facility further, this study found that providing alternative offstream water reduced stream use from 3.0 to 1.7 minutes/au/ day, compared to reductions from 25.6 to 1.6 minutes/au/ day (miner et al. 1992), 4.7 to 0.7 minutes/au/day (clawson 1993), and 6.7 to 0.7 minutes/au/day (sheffield et al. 1997). based on the percent time cattle spent in the stream (as determined by the gps collars), along with published fecal coliform loading rates (metcalf and eddy 1991) and the e. coli conversion factor suggested by epa (hamilton et al. 2005), we estimated the median daily deposition of e. coli in the stream was reduced from 1.11 × 107 cfu/au/day to 6.3 × 106 cfu/au/day when alternative water was provided. the reduction in the percent time cattle spent in the stream observed by this study (43%) was half the reductions of 85% to 94% observed by previous studies (miner et al. 1992; clawson 1993; sheffield et al. 1997). additionally, the amount of time cattle spent in the stream varied substantially among studies from 3 minutes per day in this study to almost 26 minutes per day (miner et al. 1992) indicating the site-specific nature of this measurement. stream width, depth, accessibility, and adjacent shade play a major role in the amount of time cattle spend in and near streams, and thus the percent reductions achievable by providing alternative water. as such, tmdls and other watershed studies that use percent time cattle spend in streams for assessing direct deposition rates would benefit from gps collars studies to validate models. for example, it was estimated by orange county, texas, tmdl stakeholders that, on average, cattle drinking water from bayous spend 10 minutes per day in the stream during june, july, august, or september, and 5 minutes per day in march, april, may, october, and november, but that cattle did not stand in the bayous to drink from december through february (tceq 2007a). using these assumptions from the tmdl, cattle spend 5.4 minutes/day in the stream on average overall throughout the year. although this estimate is within the range observed by previous studies, it is 80% higher than the findings of this study, potentially overestimating the bacterial loading allocated to direct deposition from cattle into the creek. because of this, evaluation of the time cattle spend in impaired water bodies using gps collars or other suitable methods is suggested for development of tmdls and other distance from creek statistic no alternative water min/day (%) with alternative water min/day (%) percent reduction instream mean 3.5 (0.2%) 2.0 (0.1%) sd 2.2 (0.1%) 1.2 (0.1%) median* 3.0 (0.2%)a 1.7 (0.1%)b 43% max 10.5 (0.7%) 5.0 (0.3%) 4.6 m mean 27 (1.9%) 15 (1.0%) sd 12 (0.8%) 8 (0.6%) median* 25 (1.7%)a 12 (0.8%)b 52% max 64 (4.4%) 44 (3.1%) *for each site, medians followed by same letter are not significantly different (p < 0.05). table 1. descriptive statistics of time, in minutes/day and percent of day (in parenthesis) that cattle spent in and near clear fork of plum creek with and without alternative off-stream water provided. figure 2. time (minutes/au/day) that cattle spent in and near (within 4.6 meters) clear fork of plum creek with and without alternative off-stream water provided. the boundary of the box closest to zero indicates the 25th percentile, the solid line within the box represents the median, the dashed line represents the mean, the boundary of the box farthest from zero indicates the 75th percentile, the whiskers above and below the box indicate the 10th and 90th percentiles, and the circles indicate data points beyond the 10th and 90th percentiles. texas water journal, volume 4, number 2 8 effects of an off-stream watering facility effects of an off-stream watering facility watershed planning projects in order to improve the accuracy of associated water quality models. flow two continuously monitored united states geological survey (usgs) flow gages are located on plum creek, 1 at lockhart and 1 at luling. flows at the usgs station at lockhart are heavily influenced by wastewater discharges and, as such, were not well-correlated with those observed in clear fork of plum creek (r2 = 0.17). however, observed flows were well-correlated (r2 = 0.79) with plum creek flows at luling (figure 3). median streamflow observed during year 2 (0.003 cubic square meters/second) was significantly lower (p < 0.001) than that observed during year 1 (0.014 cubic square meters/ second). from the spring of 2008 through the end of the study, the region experienced a severe drought (figure 4). as a result, during the second year of the study when alternative water was provided, flow was reduced 79% compared to that observed during the previous year. flow ceased in the creek for 3 months during year 2 (mid-september–october 2008 and june 2009–july 2009). this drought not only impacted flow but also impacted ranch management decisions (resulting in the increased stocking rate during year 2), pasture condition (resulting in decreased forage availability and groundcover during year 2), and ultimately instream e. coli levels and loading. e. coli concentrations a total of 84 samples were collected from the 2 water-sampling sites (pc1 and pc2), of which 48 were collected during year 1 (july 2007 to july 2008) and 36 during year 2 (july 2008 to july 2009). fewer samples were collected during year 2 as a result of periods with no streamflow as previously noted. e. coli concentrations at pc2 were correlated with those at pc1 throughout the study (p < 0.01), indicating that inflowing e. coli concentrations significantly impacted e. coli concentrations at the downstream site. further, coefficient of determination values were moderate to high for both year 1 (r2=0.58) and year 2 (r2=0.83). however, e. coli concentrations increased between pc1 and pc2 during both years (figure 5), indicating that loading from the study area contributed to e. coli concentrations at the downstream site (pc2). during year 1, median e. coli concentrations increased 73 cfu/100 milliliters (p = 0.09) from 88 cfu/100 milliliters at pc1 to 161 cfu/100 milliliters at pc2. during year 2, the increase of 323 cfu/100 milliliters from 147 cfu/100 milliliters at pc1 to 470 cfu/100 milliliters at pc2 was significant (p = 0.01). this increase during year 2, when alternative water was provided, was unexpected and inconsistent with the estimated 43% reduction in direct deposition of e. coli calculated based on the gps collar data. the extreme drought that reduced flows by 79% and influenced ranch management decisions to increase stocking rate 34% provide an explanation for much of this increase. with more cattle having access to the creek and less flow to dilute any direct deposition, it would be expected that concentrations would increase, even with the decreased amount of time cattle spent in the stream during year 2. based on year 1 cattle numbers (57 au), median flow (0.014 centimeters), and estimated median daily deposition of e. coli in the stream (1.11 × 107 cfu/au/day), it was calculated that direct deposition would contribute 52 cfu/100 milliliters to the median inflowing (pc1) concentration (88 cfu/100 milliliters); therefore, inflowing e. coli and direct deposition together (140 cfu/100 milliliters) represent an estimated 87% of the median e. coli concentration observed at pc2 during figure 3. comparison of flows measured in clear fork of plum creek to those measured at usgs gage at luling, texas. -2.0 -1.0 0.0 1.0 2.0 -4.0 -3.0 -2.0 -1.0 0.0 1.0 lo g1 0 pl um c re ek a t lu lin g fl ow (c m s) log10 clear fork plum creek flow (cms) 0.00 0.01 0.02 0.03 0.04 0.05 0.06 jul-07 nov-07 mar-08 jul-08 oct-08 feb-09 jun-09 f lo w (c m s) year 2year 1 figure 4. discharge (centimeters) measured in clear fork of plum creek, july 2007–july 2009. discharge measured on july 26, 2007, of 4.38 centimeters (154.83 cfu) is not shown. texas water journal, volume 4, number 2 9effects of an off-stream watering facility effects of an off-stream watering facility year 1 (161 cfu/100 milliliters). using the same method for year 2, it was calculated that direct deposition would contribute 186 cfu/100 milliliters to the median inflowing (pc1) concentration (147 cfu/100 milliliters); therefore, inflowing e. coli and direct deposition (333 cfu/100 milliliters) represent an estimated 71% of the median e. coli concentration observed at pc2 during year 2 (470 cfu/100 milliliters). this evaluation suggests inflowing e. coli concentrations, direct deposition by cattle, and reduced dilution resulting from reduced flow all contributed to the e. coli concentrations at pc2; however, they do not fully explain the concentrations observed. approximately 13% of the e. coli during year 1 and 29% during year 2 are unaccounted for. a portion of the unaccounted e. coli likely results from the variability observed in the e. coli concentrations. e. coli concentrations were highly variable, with standard deviations often exceeding mean e. coli concentrations (harmel et al. 2010; wagner et al. 2012). natural variability in e. coli concentrations resulting from the complex nature of bacterial deposition, survival, and transport is likely a significant factor in determining the observed e. coli concentrations (harmel et al. 2010). due to the drought and resulting increased stocking rate, degraded pasture conditions, and reduced flows during year 2, significant changes in the fate and transport of e. coli likely occurred making comparisons of the 2 years difficult. measurement uncertainty may have also contributed to data variability. mccarthy et al. (2008) found that combined uncertainty in discrete e. coli samples ranged from 15% to 67% and averaged 33%. however, because the field technician, collection methods, lab analyst, and lab methods used were consistent throughout the study, this impact is considered to be consistent across sites and years. finally, although not quantified, increased use of the creek by wildlife during the drought could have also impacted e. coli concentrations during year 2. it is logical that wildlife would increasingly use the creek as other water sources in the area were depleted. thus, even though use of the stream by cattle as documented by the gps collars decreased significantly when alternative water was provided, increased wildlife use likely contributed to the overall increase in e. coli concentrations as well. further, as noted by hagedorn (2012), removal of livestock can open areas to more wildlife contributions. thus, it is a possibility that with cattle spending more time further from the stream, possibly more wildlife inhabited the riparian area as well. e. coli loading contrary to the e. coli concentration results, daily e. coli loading to the stream per animal unit in the study area (cfu/ au/day) was substantially lower during year 2 when alternative water was provided (figure 6). these contradictory results are likely a result of the lower flows observed in year 2. the median e. coli load in year 2 (6.2 × 106 cfu/au/day) was 57% lower than in year 1 (1.44 × 107cfu/au/day); however, the observed difference was not significant (p = 0.47). as a result of the variability in the daily loading observed during year 1, a 99% change in loading or greater would have been required to observe a significant difference in the loadings between years. despite this, these results are remarkably similar to the estimated year 1 and 2 e. coli depositions in the stream of 1.11 × 107 and 6.34 × 106 cfu/au/day, respectively, calculated using the gps collar data and published fecal coliform data. even though observed e. coli loading and those estimated using gps collar data are remarkably similar and both indicated reductions of more than 40%, this study cannot configure 5. e. coli concentrations at pc1 and pc2 in year 1 (no alternative water provided) and year 2 (alternative water provided). 0.0e+00 2.0e+06 4.0e+06 6.0e+06 8.0e+06 1.0e+07 1.2e+07 1.4e+07 1.6e+07 year 1 load year 2 load e . c ol i l oa d (c fu /a u /d ) estimated observed figure 6. estimated and observed instream e. coli loading (cfu/ au/day) during year 1 (no alternative water) and year 2 (alternative water provided). texas water journal, volume 4, number 2 10 effects of an off-stream watering facility effects of an off-stream watering facility clusively attribute e. coli loading reductions to the alternative water source because of the confounding influence of increased stocking rate, decreased streamflow, and likely increase in wildlife presence, which all contributed to increased e. coli concentrations in year 2. turbidity median turbidity levels (table 2) were typically 40% higher at pc1 than at pc2 indicating turbidity generally improved as the creek flowed through the ranch; however, differences were only significant for year 1 (p < 0.01). much of the observed turbidity at pc1 likely arose from a low water crossing located approximately 0.5 kilometers upstream of the site. turbidity levels flowing into the study area played a greater role in determining the levels at pc2 during year 2. during year 2, turbidity at pc1 and pc2 were correlated (p = 0.01; r2=0.36), unlike year 1 when no correlation between sites was observed (p = 0.98, r2=0.00). analysis of covariance between observed turbidities in years 1 and 2 indicated no significant treatment effect resulted from providing alternative water (p = 0.93). turbidity was primarily measured to evaluate its use as a predictor of e. coli concentration, as streambed sediment disturbance is suspected to influence e. coli levels (jackson et al. 2011). however, regression analysis results indicated turbidity was not a good predictor of e. coli concentrations in clear fork of plum creek (p = 0.51; r2=0.01). similarly, mcdonald et al. (2006) did not observe a significant correlation between fecal enterococci and turbidity. this differs from the findings of huey and meyer (2010) that turbidity is an effective predictor of e. coli in the upper pecos river basin in new mexico. collins (2003) developed a statistical model to determine median e. coli concentrations based on turbidity that explained 70% of the observed e. coli variance. similarly, brady et al. (2009) found that a model based on turbidity and rainfall performed well at predicting e. coli levels (81% correct responses) in the cuyahoga river, ohio. thus, turbidity does have utility as a predictor in some watersheds; however, this should be determined on a case-by-case basis and used with caution. summary and conclusions use of gps collars was found to be a very useful tool, one that would benefit not only future bmp evaluations but also tmdl studies that use percent time cattle spend in streams for assessing direct deposition rates. performing gps collar studies can enhance water quality models, allowing them to more accurately predict e. coli loading. in this study, gps collars indicated the amount of time cattle spent in the stream could be reduced 43%, from 3.0 to 1.7 minutes/au/day, by providing alternative off-stream water. as a result, direct deposition of e. coli into clear fork of plum creek was estimated to be reduced 4.8 × 106 cfu/au/day from 1.11 × 107 cfu/au/ day when no alternative water was provided to 6.3 × 106 cfu/ au/day once alternative water was provided, and observed pre-treatment and post-treatment e. coli loads suggested similar reductions. however, drought-induced reductions in streamflow and increases in stocking rate and wildlife presence resulted in increased e. coli concentrations. although this study did not provide conclusive evidence of reduced e. coli concentrations resulting from providing alternative off-stream water supplies, this practice is still highly recommended due to the significant reductions observed in the time cattle spent in and near the stream, which has been shown in other studies to provide comparable bacteria reductions as exclusionary fencing of streams. further, this study supports mciver (2004) who noted alternative water supplies alone would not achieve water quality improvements unless implemented in conjunction with good grazing management (appropriate stocking rate, evenly distributed grazing, avoiding grazing during vulnerable periods, and providing ample rest after grazing events). as a result of the severe drought during this study, these principles could not be strictly adhered to, thus likely confounding the even larger improvements in water quality that could have otherwise been achieved with the use of alternative water supplies. acknowledgements this evaluation and demonstration of alternative water supplies was funded by the texas state soil and water conservation board, with clean water act, section 319(h) funding from the u.s. environmental protection agency. usda is an equal opportunity provider and employer. period statistic pc1 pc2 year 1 mean 35 17 sd 20 8 median* 29a 16b max 62 31 year 2 mean 14 12 sd 11 13 median* 10a 6a max 43 47 *for each site, medians followed by same letter are not significantly different (α =0.05). table 2. turbidity levels, in nephelometric turbidity units, measured at pc1 and pc2 during years 1 and 2. texas water journal, volume 4, number 2 11effects of an off-stream watering facility effects of an off-stream watering facility references agouridis ct, workman sr, warner rc, jennings gd. 2005. livestock grazing management impacts on stream water quality: a review. journal of the american water resources association 41(3):591-606. ball dm, hoveland cs, lacefield gd. 2002. southern forages: modern concepts for forage crop management. 3rd edition. norcross (georgia): potash and phosphate institute and the foundation for agronomic research. 322 p. berg m, mcfarland m, dictson n. 2008. plum creek watershed protection plan. college station (texas): texas agrilife extension service. brady amg, bushon rn, plona mb. 2009. predicting recreational water quality using turbidity in the cuyahoga river, cuyahoga valley national park, ohio, 2004–7. scientific investigations report 2009–5192. reston (virginia): u.s. geological survey. brenner fj, mondok j, mcdonald rj jr. 1994. impact of riparian areas and land use on four nonpoint source pollution parameters in pennsylvania. journal of the pennsylvania academy of science 65:65-70. brenner fj. 1996. watershed restoration through changing agricultural practices. in: proceedings of the american water resources association annual symposium, watershed restoration management: physical, chemical, and biological considerations. american water resources association, herndon, virginia, tps-96-1, p. 397-404. buchanan b. 1996. clean water boosts cattle performance. prairie water news 6(1). byers hl, cabrera ml, matthews mk, franklin dh, andrae jg, radcliffe de, mccann ma, kuykendall ha, hoveland cs, calvert vh ii. 2005. phosphorus, sediment, and escherichia coli loads in unfenced streams of the georgia piedmont, usa. journal of environmental quality 34:2293-2300. clawson je. 1993. the use of off-stream water developments and various water gap configurations to modify the behavior of grazing cattle [thesis]. [corvallis (oregon)]: oregon state university, department of rangeland resources. collins r. 2003. relationships between streamwater e. coli concentrations and environmental factors in new zealand. in: m. bruen, editor. proceedings of the 7th international specialised iwa conference on diffuse pollution and basin management; dublin, ireland. 3:176-180. london, england: international water association. cook mn. 1998. impact of animal waste best management practices on the bacteriological quality of surface water [thesis]. [blacksburg (virginia)]: virginia polytechnic institute and state university. dickard ml. 1998. management strategies for improved cattle distribution and subsequent riparian health [thesis]. [moscow (idaho)]: university of idaho. [epa] united states environmental protection agency. 2006. method 1603: escherichia coli (e. coli) in water by membrane filtration using modified membrane-thermotolerant escherichia coli agar (modified mtec). epa821-r-06-011. washington, dc: environmental protection agency, office of water. [fca] florida cattlemen’s association. 1999. water quality best management practices for cow/calf operations in florida. kissimmee (florida): florida cattlemen’s association. gary hl, johnson sr, ponce sl. 1983. cattle grazing impact on surface water quality in a colorado front range stream. journal of soil and water conservation 38(2):124. godwin dc, miner jr. 1996. the potential of off-stream livestock watering to reduce water quality impacts. bioresource technology 58:285-290. grant dm. 1991. isco open channel flow measurement handbook, 1st edition. lincoln (nebraska): isco: inc. hagedorn c, robinson sl, filtz jr, grubbs sm, angier ta, reneau rb jr. 1999. determining sources of fecal pollution in a rural virginia watershed with antibiotic resistance patterns in fecal streptococci. applied and environmental microbiology: 65:5522-5531. hagedorn c. 2012. overview of case studies. paper presented at: 2012 bacterial source tracking: state of the science conference, new braunfels, texas. hamilton wp, kim m, thackston el. 2005. comparison of commercially available escherichia coli enumeration tests: implications for attaining water quality standards. water research 39(20):4869-4878. harmel rd, karthikeyan r, gentry t, srinivasan r. 2010. effects of agricultural management, land use, and watershed scale on e. coli concentrations in runoff and streamflow. transactions of american society of agricultural and biological engineers 53(6):1833-1841. huey gm, meyer ml. 2010. turbidity as an indicator of water quality in diverse watersheds of the upper pecos river basin. water 2:273-284. jackson t, smith a, mcmullan g, orear r, fuller r, dalman ne. 2011. a comparison of escherichia coli levels in the chattahoochee river between drought and non-drought years. in: proceedings of the 2011 georgia water resources conference, university of georgia, athens georgia. athens (georgia): georgia water resources institute. kauffman jb, krueger wc. 1984. livestock impacts on riparian ecosystems and streamside management implications…a review. journal of range management 37(5):430-438. texas water journal, volume 4, number 2 12 effects of an off-stream watering facility effects of an off-stream watering facility larsen re, buckhouse jc, moore ja, miner jr. 1988. rangeland cattle and manure placement: a link to water quality. proceedings of oregon academy of science 24:7. larsen re, miner jr, buckhouse jc, moore ja. 1994. water-quality benefits of having cattle manure deposited away from streams. bioresource technology 48:113. line de. 2002. changes in land use/management and water quality in the long creek watershed. journal of the american water resources association 38:1691-1701. line de. 2003. changes in a stream’s physical and biological conditions following livestock exclusion. transactions of the american society of agricultural engineers 46(2):287. lombardo la, grabow gl, spooner j, line de, osmond dl, jennings gd. 2000. section 319 nonpoint source national monitoring program successes and recommendations. raleigh (north carolina): north carolina state university water quality group, biological and agricultural engineering department. mccarthy dt, deletic a, mitchell vg, fletcher td, diaper c. 2008. uncertainties in stormwater e. coli levels. water research 42:1812-1824. mcdonald jl, hartel pg, gentit lc, belcher cn, gates kw, rodgers k, fisher ja, smith ka, payne ka. 2006. identifying sources of fecal contamination inexpensively with targeted sampling and bacterial source tracking. journal of environmental quality 35:889-897. mciver s. 2004. using off-stream water sources as a beneficial management practice in riparian areas – a literature review. agriculture and agri-food canada, prairie farm rehabilitation administration. meals dw. 2001. water quality response to riparian restoration in an agricultural watershed in vermont, usa. water science and technology 43:175-182. meals dw. 2004. water quality improvements following riparian restoration in two vermont agricultural watersheds. in: manley to, manley pl, mihuc tb, editors. lake champlain partnerships and research in the new millenium. new york: kluwer academic/plenum publishers. p. 81-95. metcalf and eddy inc. 1991. wastewater engineering: treatment, disposal, and reuse. 3rd edition. new york: mcgraw-hill, inc. miner jr, buckhouse jc, moore ja. 1992. will a water trough reduce the amount of time hay-fed livestock spend in the stream (and therefore improve water quality). rangelands 14(1):35-38. mosley jc, cook ps, griffis aj, o’laughlin j. 1999. guidelines for managing cattle grazing in riparian areas to protect water quality: review of research and best management practices policy. idaho forest, wildlife and range policy analysis group, report no. 15. moscow (idaho): university of idaho. omernik jm. 1987. ecoregions of the conterminous united states. map (scale 1:7,500,000). annals of the association of american geographers 77(1):118-125. pandey v, kiker ga, campbell kl, williams mj, coleman sw. 2009. gps monitoring of cattle location near water features in south florida. applied engineering in agriculture 25(4):551-562. porath ml, momont pa, delcurto t, rimbey nr, tanaka ja, mcinnis m. 2002. offstream water and trace mineral salt as management strategies for improved cattle distribution. american society of animal science 80:346-356. sheffield re, mostaghimi s, vaughan dh, collins er jr., allen vg. 1997. off-stream water sources for grazing cattle as a stream bank stabilization and water quality bmp. transactions of the american society of agricultural engineers 40(3):595-605. soil survey staff. 2011. web soil survey: caldwell county, texas (tx055) [internet]. natural resources conservation service, united states department of agriculture. [cited 14 february 2011]. available from http://websoilsurvey.nrcs.usda.gov/ tate kw, atwill er, mcdougald nk, george mr. 2003. spatial and temporal patterns of cattle feces deposition on rangeland. journal of range management 56(5):432-438. [tceq] texas commission on environmental quality. 2007a. seventeen tmdls for adams bayou, cow bayou, and their tributaries. adopted june 13, 2007. austin (texas): texas commission on environmental quality. [tceq] texas commission on environmental quality. 2007b. one tmdl for guadalupe river above canyon lake, segment 1806. adopted july 25, 2007. austin (texas): texas commission on environmental quality. [tceq] texas commission on environmental quality. 2008. executive summary – 2008 texas water quality inventory and 303(d) list (march 19, 2008). austin (texas): texas commission on environmental quality. tiedemann ar, higgins da, quigley tm, sanderson hr, marx db. 1987. responses of fecal coliform in streamwater to four grazing strategies. journal of range management 40(4):322-329. veira dm. 2003. livestock water: impacts on production and behavior. in: proceedings of the western range science seminar on rangelands and ranching: achieving a viable future, medicine hat, ab, canada. wagner kl, redmon la, gentry tj, harmel rd. 2012. assessment of cattle grazing effects on e. coli runoff. transactions of asabe (in review). willms w, colwell d, kenzie o. 1994. water from dugouts can reduce livestock performance [internet]. prairie water news 4(1). available from: http://www.prairiewaternews. ca/back/vol4no1/v41_st1.html http://websoilsurvey.nrcs.usda.gov/ http://websoilsurvey.nrcs.usda.gov/ http://www.prairiewaternews.ca/back/vol4no1/v41_st1.html http://www.prairiewaternews.ca/back/vol4no1/v41_st1.html texas water journal, volume 4, number 2 13effects of an off-stream watering facility effects of an off-stream watering facility willms wd, kenzie or, mcallister ta, colwell d, veira d, wilmshurst jf, entz t, olson me. 2002. effects of water quality on cattle performance. journal of range management 44:452-460. state legislature, voters move to eighty-six texas’s flooding challenges texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 11 number 1 | 2020 https://www.texaswaterjournal.org volume 11, number 1 2020 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineer-ing, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. rosario sanchez, ph.d. texas water resources institute managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editors chantal cough-schulze texas water resources institute kristina j. trevino, ph.d. trinity university editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university cover photo: tres palacios river at fm 1468 near clemville, texas. ©2019 ed rhodes, twri. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. https://twj-ojs-tdl.tdl.org/twj/index.php/twj/support https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water journal, volume 11, number 1 texas water resources institute texas water journal volume 11, number 1, january 28, 2020 pages 1-14 abstract: even before the 86th texas legislature began, it was clear the session would feature a deluge of activity focused on addressing texans’ experience with flooding. elected representatives from across the state floated solutions for hurricane harvey and long-term issues alike, featuring a mix of both recovery projects and future planning efforts. much attention has been paid to senate bill 7 and senate bill 8, which create major new statewide programs. significant questions remain regarding the implementation of these bills. we wade into these uncertainties and the larger trends behind the legislative session. in all, 128 introduced bills specifically mentioned “flooding” or “flood,” far exceeding anything from the previous 10 sessions. even more, 240 total introduced bills addressed issues with a clear connection to flooding. of these, 67 (28%) went on to become legislation. as new laws go into effect, implementation ramps up, and funds trickle out, strong, sustained stakeholder engagement and communication will be key to making sure these programs hold water. keywords: flood, planning, infrastructure, recovery, resiliency policy review: state legislature, voters move to eighty-six texas’s flooding challenges 1 ceo & principal scientist, simfero consultants, houston, texas * corresponding author: mberg@simferousa.com citation: berg md. 2020. policy review: state legislature, voters move to eighty-six texas’s flooding challenges. texas water journal. 11(1):1-14. available from: https://doi.org/10.21423/twj.v11i1.7101. © 2020 matthew d. berg. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/. matthew d. berg1 http://orcid.org/0000-0002-0584-6393 mailto:mberg%40simferousa.com?subject= https://doi.org/10.21423/twj.v11i1.7101 https://creativecommons.org/licenses/by/4.0/ texas water journal, volume 11, number 1 state legislature, voters move to eighty-six texas’s flooding challenges2 terms used in paper acronym descriptive term fema federal emergency management agency glo general land office hb house bill hcfcd harris county flood control district hjr house joint resolution huc hydrologic unit code nfip national flood insurance program noaa national oceanic and atmospheric administration sb senate bill sjr senate joint resolution swift state water implementation fund for texas tceq texas commission on environmental quality tdem texas division of emergency management tsswcb texas state soil and water conservation board twdb texas water development board usace u.s. army corps of engineers vfd volunteer fire department legislature overview hurricane harvey was a powerful and effective catalyst, but the pressure to address texas’s unfortunate struggles with flooding had been growing for some time. texas leads the nation in declared flooding disasters (fema 2019). peak flows in a number of the state’s rivers and streams have been trending upward (berg 2018). noaa released its analysis indicating increased estimates of heavier downpours across a wide swath of the state (perica et al. 2018) (figure 1). with clear interim charges added to the mix (patrick 2017a; patrick 2017b; straus 2017), it was a perfect storm of legislative motivation. as momentum built toward the convening of the 86th texas legislature, the only question was where it would all lead. it did not take long to start finding out. several bills had been pre-filed by the end of november 12, the very first day legislators could file, and a steady stream continued to flow well into the session itself. meanwhile, in a poetic twist, the 6 months leading up to the session were the wettest july-december period ever recorded in texas (noaa 1895– ). this soggy reminder had an effect. introduced bills with the words “flood” or “flooding” (128 bills) set a new high-water mark for a single legislative session and significantly overtopped those addressing “drought” (28 bills) considerations (tlo 2019) (figure 2). taking a broader view, the number of bills with a substantive, material connection to flooding was far larger. by the filing deadline, a raft of 240 flood-related bills had been introduced. these came from districts all across the state, with a clear concentration in a band running from the beaumont-port arthur area through the southern hill country (figure 3). in terms of primary authorship, the greatest numbers of such bills were introduced by senator lois kolkhorst and senator carol alvarado in the senate and representative armando walle and representative ed thompson in the house of representatives. if the frequency of discussion indicates the importance of a topic, flooding was very much a focus of the 86th legislative session. this was not a surprise. as expected, many introduced bills focused on adjusting ad valorem taxation in the wake of natural disasters. there was also significant competition among bills regarding the communication of flood risk in property transactions. what was breathtaking, however, was the staggering scope of additional issues touched on by flood legislation. wading into the bills reveals so much more (appendix a). this does not even include those bills, such as house bill (hb) 3167 (oliverson), that impact the ability of local political subdivisions to plan for and respond to the threats posed by flooding. yet more bills were slightly less connected with texas water journal, volume 11, number 1 3state legislature, voters move to eighty-six texas’s flooding challenges figure 1. extending from southeast texas along the louisiana border to just east of the big bend region and also including the northern portion of the trans-pecos, a swath of texas registered significant increases in the so-called 100-year (1% annual chance) storm since the last time these estimates were calculated. the map indicates percent differences in 100-year, 24-hour rainfall depths between weather bureau technical paper no. 40 (hershfield 1961) and noaa atlas 14 (perica et al. 2018). adapted from noaa atlas 14 with permission from authors. figure 2. frequency of bills introduced in texas legislature specifically addressing “drought” (red bars) and “flooding” (blue bars) in relation to statewide precipitation trends. light red dashed lines signify a six-month period ending with below average statewide precipitation. light blue dashed lines signify a six-month period ending with above average statewide precipitation. extremely wet periods often translate to flood-related bills in the following session, but nothing comes close to the 86th legislature in terms of bill volume. texas water journal, volume 11, number 1 state legislature, voters move to eighty-six texas’s flooding challenges4 flooding concerns but still tangentially relevant. clearly rising waters had permeated essentially every aspect of texans’ lives. perhaps just as fascinating as the bills enacted are the contents of those that did not make it that far. a whopping 167 flood-related bills (70%) were introduced but did not progress to the governor’s desk. this list was heavily populated by competing versions of related bills that failed to become the preferred legislation. other dead bills include the potential use of u.s. postal services workers during natural disasters, an examination of the flooding impacts of border wall construction, the development of a list of voluntary best practices for aggregate production operations, and the location of solid waste facilities in relation to floodplains, among many, many more. there were also several bills prescribing studies and authorizing commissions to address changing weather patterns and climate issues. none passed. interestingly, the overwhelming majority (71%) of all flood-related bills were from legislators with district offices within areas identified by noaa’s atlas 14 as having experienced significant increases in 100-year rainfall depths (figure 4). a handful of additional bills were passed by the legislative branch but received governor abbott’s veto. hb 2112 (ed thompson) addressed the salvage of flood-damaged vehicles but was disapproved in favor of procedures laid out in hb 2310 (vo) (abbott 2019c). senate bill (sb) 1575 (alvarado) addressed municipal immunity for pass-through administration of state and federal disaster recovery funds. governor abbott determined this legislation to be too protective and vague (abbott 2019b). hb 1059 (lucio iii) prescribed a biennial report on green stormwater infrastructure through the texas commission on environmental quality (tceq). this bill was declared redundant and unnecessary, and it was suggested that a combination of current efforts by local governments and higher education institutions is sufficient (abbott 2019a). the fate of three additional legislative proposals was settled later in the year. house joint resolution (hjr) 4 (phelan), hjr 34 (shine), and senate joint resolution (sjr) 79 (lucio) accompanied additional bills already passed by the legislature and received overwhelming approval as constitutional amendments by texas voters in the november 5 general election. hjr 4 (proposition 8) proposed the creation of a dedicated flood infrastructure fund to finance drainage, flood mitigation, and flood control projects. hjr 34 (proposition 3) proposed a temporary partial exemption from ad valorem taxation of figure 3. map of flood bills and their respective fates by the primary district office location of the bill’s primary author. bills with a substantive, material connection to flooding were introduced by elected representatives from across the state. however, far and away the greatest numbers were introduced by representatives from southeast texas near the louisiana border, through the houston metropolitan area and to the southern hill country. texas water journal, volume 11, number 1 5state legislature, voters move to eighty-six texas’s flooding challenges figure 4. map of introduced bills and their respective fate in relation to precipitation changes identified in noaa atlas 14 (perica et al. 2018), a combination of figures 1 and 3. the vast majority (71%) of floodrelated bills were introduced by representatives whose districts experienced significant increases in 100-year (1% annual chance) rainfall depths. legislative initiatives appear to reflect changing precipitation conditions. disaster-damaged property. sjr 79 (proposition 2) proposed the issuance of bonds by the texas water development board (twdb) to fund projects in economically distressed areas, though this was amended by legislators from its introduced form to exclude drainage projects. some 67 bills related—as filed—to flooding (28%) did successfully navigate the legislative process to become law, with the greatest number authored by senator kolkhorst and senator lucio in the senate and representative morrison and representative phelan in the house. at least one more of these, sb 2452 (lucio), which enabled sjr 79, initially included fund eligibility for drainage projects but was pared down over the course of the legislative process. as with the number of bills introduced overall, the scope of passed bills is incredibly extensive. bill language was awash in acronyms of almost every state agency. a brief summary of passed legislation is found in appendices b and c. while all of these will bring changes to the lives of texans, a handful of bills have received outsized attention. sb 7 (creighton), in conjunction with hjr 4, and sb 8 (perry) continue to dominate flood conversations in the state and were the focus of statewide stakeholder meetings in 2019. they are also the bills with perhaps the greatest amount of uncertainty. yet significant work is underway to clear up the unknown. small bill numbers, huge expectations as has been made very clear by essentially all stakeholders and outlined in the state flood assessment (twdb 2019b), significant funding is the biggest need in order to mitigate flooding and manage floodplains across the state. sb 7 and sb 8 in particular make meaningful progress toward meeting that need by establishing a process to identify projects and target resources. the applause accompanying the passage of sb 7 and hjr 4 in the legislative chambers reflects the hope both legislators and private citizens place in these bills. discussion on the floor featured abundant reflection on hurricane harvey and personal war stories of flooding. these bills work hand in hand with sb 8 and the supplemental appropriations bill sb 500 (nelson) and seek to accelerate recovery from the most recent storms while aiming to build a foundation of resilience to future events. texas water journal, volume 11, number 1 state legislature, voters move to eighty-six texas’s flooding challenges6 infrastructure versus implementing new projects and activities also was a big question mark. answers to all these have been provided for the first year of the program, but significant evolution is expected over the long term. importantly, twdb determined that establishing program guidelines through an annual intended use plan rather than codifying them in rule preserves the flexibility to adjust based on experience as the program matures (twdb 2019c). portions of the texas infrastructure resiliency fund will require significant coordination with tdem, but twdb will administer both this fund and the flood infrastructure fund. this charge represents a major expansion in responsibility for the agency. and that is nowhere near the end of new assignments for twdb. senate bill 8 while sb 7 mobilizes new resources for flood projects, sb 8 builds a long-term framework to identify these projects and guide their development through a stakeholder-driven process. this bill drives toward what many optimistically hoped would be delivered by what ultimately became the state flood assessment: a comprehensive statewide plan to protect life and property from flooding. what the state flood assessment did make clear, however, is that texans strongly prefer that flood planning be conducted at a watershed scale to improve efficiency and capitalize on solutions that offer multiple benefits (twdb 2019f ). the new regional flood planning process will follow this approach, with 11 planning regions organized by river basin. within each planning group, stakeholders representing different unique local interests will hold public meetings and cooperatively develop regional plans to be completed by january 10, 2023. these evaluations of existing infrastructure and rankings of flood projects will be compiled into the first state flood plan no later than september 1, 2024 and every 5 years thereafter. the regional and state plans will go through an approval process with twdb, which will also provide ongoing facilitation, updated mapping, and data collection assistance. thankfully, this major new program is right in twdb’s wheelhouse. the agency is already quite familiar with the state and regional water planning model from which it can draw inspiration. a major part of new flood work will lead to the development of new models and other technical tools. the completed plan will also feature an analysis of development in fema-defined “100-year” floodplains and recommendations on state policy changes to facilitate ongoing planning and implementation. while the flood planning process has received most of the attention, sb 8 also delivers an important provision for improving the integrity of dams in texas, some of which are nearing senate bill 7 sb 7 provides a significant retooling of flood projects and disaster recovery for texas. and since doing anything costs money, the legislation importantly establishes the flood infrastructure fund to finance all phases of flood and drainage projects in the form of grants and low-cost loans. through an appropriation from the economic stabilization fund, sb 500 assigns $793 million for this purpose. these funds will be directed to political subdivisions (counties, municipalities, river authorities, and other special districts). it is hoped that this mechanism will help communities overcome the cost hurdles and lengthy timelines associated with large infrastructure projects. the adoption of the first state flood plan looms as a major milestone for the flood infrastructure fund. before that time, this fund will be used to finance flood projects that are developed through a cooperative planning process (twdb 2019a). after regional flood plans are compiled into a state flood plan in 2024, the flood infrastructure fund must be used exclusively for projects featured in the state flood plan. with 78% of more than 1.5 million texas voters supporting proposition 8, the flood infrastructure fund is officially created outside the general revenue fund and will be carried forward in future budget cycles. in addition to the statewide referendum, sb 7 also establishes the $857 million texas infrastructure resiliency fund through an appropriation from the economic stabilization fund. a major goal of the texas infrastructure resiliency fund is to provide the texas division of emergency management (tdem) with matching local funds ($638 million) to leverage the multitude of different federal funds in ongoing recovery from hurricane harvey. an additional $47 million will be directed toward data collection and analysis, including the updating of flood hazard information across the state, development of the state flood plan, and public outreach efforts. in sum, the “rainy day fund” is finally allowed to live up to its nickname. the bill also lays out agency requirements for reporting use of federal funds and for transparency in flood project progress. the rollout of sb 7 was very much in progress even before the flood infrastructure fund was approved by voters. it was clear that a number of issues would require a great deal of deliberation, from the broad (the pathway that funds take, whether match for federal programs, complement to federal buyout programs, or implementing local projects that lack funding) to the specific (criteria for project prioritization). one of the key questions was the precise mix of grants and low-interest loans to be disbursed from the flood infrastructure fund, which would affect the number of applicants who receive funding. the prioritization of repairing and rehabilitating existing texas water journal, volume 11, number 1 7state legislature, voters move to eighty-six texas’s flooding challenges 80 years of age. the texas state soil and water conservation board (tsswcb) will be required to develop a plan for the flood control dams constructed through federal programs that the state agency now oversees. sb 500 provides $150 million to implement the resulting repair, rehabilitation, and maintenance plan, which will be updated every 10 years. tsswcb will also provide annual updates to twdb and work with tceq to identify the needs of certain non-federal dams. as with sb 7, the rulemaking process provided significant clarification, but a great deal of detail remains to be worked out regarding sb 8 implementation. legislation required twdb to finalize flood planning regions before september 1, 2021, but this will happen much sooner. the initial candidates for regional alignment differed only with respect to the division of basins in the panhandle, the partition of the guadalupe and san antonio rivers, and the affiliation of the lavaca river basin. coastal basins are tricky! the preferred approach resulted in brazos-san bernard, canadian-red, colorado-lavaca, guadalupe, neches, nueces, rio grande, sabine, san antonio, san jacinto, and trinity flood planning regions (twdb 2019d). neighboring regions along the gulf coast are also encouraged to coordinate with one another (twdb 2019e). with group finalization, adequate representation and the precise mix of regional interests and ex-officio agency representatives will be key. additional questions revolved around both the spatial and temporal scale of flood planning. rules limit planning regions to considering flood strategies and projects with a drainage area of at least 1 square mile. where portions of larger basins are worthy of special focus, groups may assign subgroups to look at watersheds at the hydrological unit code (huc)-8 level. these subgroups will also require the same stakeholder representation as the full group (twdb 2019e). it will be interesting to see where local stormwater and drainage issues fit in. regional water planning currently uses a 50-year time horizon. regional flood plans will adopt a 30-year planning period and use associated development and population scenarios. they will also identify 10-year goals. these shorter timespans may provide the agility to incorporate further anticipated changes like those demonstrated in noaa atlas 14 (perica et al. 2018) and data on changing sea levels, which groups are required to consider (twdb 2019e). given the built-in flexibility and learning curve for sb 7 and sb 8 rules, public input will be a key feature throughout the process. in the mold of its development of the state flood assessment, twdb wrapped up an ambitious series of statewide stakeholder workshops and a public feedback period in summer 2019. additional public comments were invited as part of the required formal rulemaking procedures. this will be a long-term process, and there will be a great need for ongoing public participation in the regional planning process as groups are formed and begin work (twdb 2019a). uncharted waters differences with existing state programs a number of comparisons have been drawn between these new bills and both the regional water planning process and the state water implementation fund for texas (swift). indeed, flood planning guidance principles are similar to the guidance for regional and state water planning (twdb 2019b). there are certainly similarities, but there are also key differences. unlike swift, one unique aspect of the flood infrastructure fund is the provision for grants that do not require repayment over time. initial scenarios, such as a 75% grant/25% loan or 25% grant/75% loan breakdown, involve major tradeoffs in terms of debt burden versus how far funds can be stretched. depending on the approach taken and the interest rate of loans, anywhere from $198 million to $731 million would be available over 20 years. for the 2020 intended use plan, twdb proposed several project categories with different financing breakdowns. broadly, these represent a mix of grants (most requiring local match) ranging from 50 to 100%, with 0% interest loans available in all categories (twdb 2019c). the dynamics of the fund depend heavily on what criteria are applied to potential recipients. prioritizing community financial need versus basing benefit-cost analyses on property values can yield very different results that often point in opposite directions. additionally, roughly 47% of texans reside in municipalities with a population over 100,000. considering cities over 50,000, this rises to 54%. while these are much larger numbers than previous decades, this still means almost half of all texans live in smaller political subdivisions that tend to lack the capacity to repay loans for expensive infrastructure projects and that also generally lack the dedicated staff to identify, plan, and coordinate the implementation of such projects. such questions of how to address financial means promises to be a hot button issue in project selection. the statewide need is so vast, and the number of fault lines across flood history and socioeconomic factors is not small. for 2020, proposed categories are highly responsive to these questions, with highest grant percentages and highest prioritization going to areas outside a metropolitan statistical area and those with annual median household income less than the statewide average (twdb 2019c). in fact, consideration of social vulnerability index scores is required. other prioritization criteria include watershed planning and mapping updates, projects immediately protecting life and property, emergency need due to recent or imminent failure, regional benefit, completion date, existence of water supply benefit, and removal of structures from the floodplain. project cost will be used as a tiebreaker, with preference going to the lower cost. texas water journal, volume 11, number 1 state legislature, voters move to eighty-six texas’s flooding challenges8 once the application period opens, one of the big questions to watch will be the appetite for loans compared to grants. a loan with an interest rate of 0% will be difficult to beat. for future cycles, interest rates likely will come more into play. some outside sources of financial assistance also offer low-interest loans, and political subdivisions may look elsewhere. even if grants are the preferred path forward in 2020, will applicants be able to provide the 25-50% local matching funds required for most project categories? critically, unlike financial assistance for water projects, most entities do not have a dedicated mechanism for recovering the cost of flood project loans. water utility rates can foot the bill for funds through swift, but that structure is generally not in place for funding flood projects outside of a relatively small number of special districts with taxing authority and those municipalities that have enacted a drainage charge. where a cost recovery mechanism does exist, will those entities use funds directly for projects rather than pursuing loans? the regional planning process requires an examination of potential funding mechanisms for not just project development but also for operation and maintenance costs (twdb 2019e). expect serious discussion on the establishment of local revenue streams. another major contrast between water planning and flood planning is what some perceive as the overall objective itself: getting water versus getting rid of water. it appears that legislators have noticed the tensions that can arise between regions in the water planning process. sb 8 outlines requirements that no regional plan “negatively affects a neighboring area” (2019). using a watershed approach and thanks to gravity, this is far less likely to occur between regions in the flood planning process. unlike in water planning, the strongest tensions will likely arise within regions but between upstream and downstream interests. there are indications that this is already developing in some river basins. rules reflect this reality by defining neighboring areas to include upstream and downstream portions of a given basin (twdb 2019e). the preference between detention and conveyance is frequently tied to one’s location in a watershed, and these preferences are strong. planning flood projects without negative impacts on upstream or downstream areas will be a fine line to walk. given this potential reverse tug-of-war, it will also be interesting to watch what water planning-flood planning nexus develops. water is water. “too much” can quickly become “not enough,” and flood waters pushed downstream may be less available to meet water supply needs. the proposed list of representative flood planning stakeholders is a mirror image of that used in regional water planning, though stakeholder workshops did reveal a healthy appetite for including land trust and academic representation as well (twdb 2019b). like water planning, legislation for flood planning groups requires representation of the public interest. while some water supply projects can indeed skyrocket to become hot button issues, the majority of water planning concerns are likely keyed into much longer time horizons among the public. water supply issues tend to take longer to express themselves. in contrast, devastating flood impacts can unfold in a matter of a few hours in a single afternoon. when even one community is flooded, that can generate energy in a hurry, and that energy surely can endure. more than 2 years after the landfall of hurricane harvey, flood-related public meetings continue to experience capacity crowds in many locations. as a result, the communication process in the implementation of sb 8 will be critical. ensuring all stakeholders feel genuinely heard and included will require an expert touch, with consistent response strategies after every future flood event. whittling massive public interest down to a single representative will also be a real challenge. expect a great deal of demand for additional planning group spots representing the public interest, and for some groups to expand membership further to include additional interests. amidst this complex dynamic, the role of thorough technical analysis will be paramount. the sense of urgency and hunger for visible action after a disaster are powerful. yet in the wake of hurricane harvey, certain proposed solutions did not address the actual cause of flooding, and some ideas, if implemented, may actually cause an increase in flood risk. preliminary flood planning guidelines require that flood projects be based on the “best available” science and data (twdb 2019a, twdb 2019c). maintaining this foundation, with consistent updates on an ongoing basis, should ensure strategies move in the right direction. yet given the frequent need for adequate study to bump against the public desire for immediate project implementation, this evidence-based approach can involve a degree of tension. clearly, navigating this process will demand superior communication, facilitation, and mediation prowess across every dimension. a rising tide of conservation projects? in floor discussion of the first amendment to sb 7, senator brandon creighton acknowledged the work of his district’s bayou land conservancy in crafting a key component of the bill’s language. a number of conservation organizations worked to amend language to include “nonstructural projects, including projects that use nature-based features to protect, mitigate, or reduce flood risk” (2019). twdb stakeholder meeting materials reflect this mandate, and preliminary guidance principles included this suite of approaches prominently (twdb 2019b). in fact, non-scientific audience polling at public meetings also indicated a strong preference for floodplain preservation and other nature-based solutions among all flood mitigation strategies. texas water journal, volume 11, number 1 9state legislature, voters move to eighty-six texas’s flooding challenges some intriguing possibilities revolve around such naturebased approaches. swift legislation included sizable program targets for funding of water conservation and rural water projects (jackson and walker 2017). twdb even prescribes water conservation as a tiebreaker in scoring water project applications (twdb 2019g). sb 7 already makes specific provisions for the flood infrastructure fund to support projects that “serve an area outside of a metropolitan statistical area” (2019). that means swift and the flood infrastructure fund differ in one last key aspect: targets for conservation. it would make sense that the water conservation programs emphasized in water planning be paralleled by a similar focus on a different kind of conservation in flood planning: land conservation. more than that, since twdb also made the acquisition of land conservation agreements an eligible use of clean water state revolving fund resources, nature-based land conservation projects stand poised to be among the powerful few strategies that actually achieve the oft-emphasized goal of providing both flood mitigation and water supply benefits. nature-based, nonstructural approaches tend to be less expensive than structural approaches to implement and feature lower operation and maintenance costs over time (dart 2019; lightbody and miller 2019). furthermore, the performance of traditional infrastructure generally degrades over time, while natural strategies, particularly those with a restoration component, typically improve with project maturation. additionally, land conservation approaches are far cheaper than acquisition (buyouts) after flooding of developed land has already occurred. such projects also avoid the lengthy process of fema-supported buyouts that keeps flood survivors in limbo and sidestep the associated loss of life and property. among a multitude of conservation organizations across the state, there is no shortage of already-identified land conservation projects that could make a major dent in flood risk. the opportunity is even bigger. the u.s. army corps of engineers (usace) engineering with nature program acknowledges “nature offers us so many solutions to minimize flood risk” (kuzmitski 2019). including nature-based approaches as key elements of every flood project, as promoted by the engineering with nature initiative, seems a critical strategy. defining success and future challenges regardless of the emphasis chosen by different regional groups, big conversations will revolve around how flood plan success is even defined. what is the appropriate standard (twdb 2019b)? water planning is based on a hypothetical repeat of the “drought of record,” a historically severe dry period during the 1950s (twdb 2017). however, investigation of long-lived texas trees indicates this approach severely underestimates what the region has endured in previous centuries (cleaveland et al. 2011). a similar challenge exists with flooding. despite the scarce probability of hurricane harvey’s torrential rains, streamflows generated by even this storm were far less severe than would be expected in many watersheds (watson et al. 2018). how, therefore, should regional groups think about managing risk to life and property? a much-needed change in terminology from the “100-year flood” to “1.0% annual chance flood” may help facilitate a better public understanding of flood risk (twdb 2019e). significant discussion will revolve around whether a historical benchmark or some stricter probabilistic measure is a better fit. over $1.6 billion was assigned to new flood mitigation initiatives by the 86th legislature. an additional $200 million was allocated to the general land office (glo) to support dredging and usace studies. this is indeed a substantial withdrawal from the economic stabilization fund. yet even the state flood assessment acknowledged that a 10-year, $31.5 billion need means that communities face a shortfall of $18 billion to $26.6 billion in financial assistance, and these estimates do not even take into account projects associated with hurricane harvey (and tropical storm imelda) recovery or certain major projects across the state (twdb 2019f ). flood legislation passed in 2019 is an important first step, but the gap between appropriated funds and remaining needs is huge. tremendous interest and pressure will be focused on future legislative sessions to maximize the productivity of these funds and follow through with significant additional resources. in addition to funds, will something more be required of texans in the form of shifts in expectations and living with water? through the flood planning process, what necessary changes to current floodplain management, land use regulations, and economic development practices will be recommended? conclusions as implementation ramps up for all flood legislation, be prepared for an iterative process with plenty of learning opportunities. this is particularly true for sb 7 and sb 8. no other state has yet chosen to dive into flood risk management with such a systematic approach—one that simultaneously funds flood hazard identification, watershed-based planning, and mitigation projects. even the current state water planning process has only been in place since 1997. swift has been in action far shorter. sb 7 and sb 8 are each significantly shorter than the enabling legislation for both state water planning and swift and leave much to be fleshed out. lessons learned through these efforts will absolutely help smooth the road for flood planning, but it is fully expected that there will be some kinks to work through. texas water journal, volume 11, number 1 state legislature, voters move to eighty-six texas’s flooding challenges10 as with any massive and ambitious effort, the success of these new programs will depend on sustained stakeholder engagement at every single step in the process. early signs suggest the beginnings of a move in the right direction. yet from the initial stakeholder meetings all the way through the prioritization of funds and long-term activity within regional flood planning groups to future legislative action, the decision of whether the 86th legislature becomes a watershed moment or is seen as yet another drop in the bucket ultimately rests with the people of texas. acknowledgments the author acknowledges sanja perica, sandra pavlovic, and additional noaa personnel for their work on atlas 14 and their sharing of data for this manuscript. the author also thanks bayou land conservancy for frequent conversations about the role of nature-based flood mitigation strategies in developing a comprehensive plan for texas. finally, the author expresses gratitude to kathleen ligon and other twdb staff for their insights and guidance in communicating the implementation of new flood programs resulting from the 86th texas legislature. references abbott g. 2019a jun 15. governor abbott vetoes hb 1059. office of the texas governor. available from: https://gov. texas.gov/news/post/governor-abbott-vetoes-hb-1059. abbott g. 2019b jun 15. governor abbott vetoes sb 1575. office of the texas governor. available from: https://gov. texas.gov/news/post/governor-abbott-vetoes-sb-1575. abbott g. 2019c jun 15. governor abbott vetoes hb 2112. office of the texas governor. available from: https://gov. texas.gov/news/post/governor-abbott-vetoes-hb-2112. berg m. 2018. peak flow trends highlight emerging urban flooding hotspots in texas. texas water journal. 9(9). available from: https://twj.media/peak-flow-flooding-texas/. cleaveland m, votteler t, stahle d, casteel r, banner j. 2011. extended chronology of drought in south central, southeastern, and west texas. texas water journal. 2(1). available from https://journals.tdl.org/twj/index.php/twj/ article/view/2049. dart t. 2019 jun 4. will “gray” or “green” flood infrastructure protect houston? citylab. available from: https://www. citylab.com/environment/2019/06/hurricane-season-texas-houston-storm-flood-resilience-funds/588868/. [fema] federal emergency management agency. 2019. data visualization: disaster declarations for states and counties. available from: https://www.fema.gov/data-visualization-disaster-declarations-states-and-counties. hershfield d. 1961. rainfall frequency atlas of the united states for durations from 30 minutes to 24 hours and return periods from 1 to 100 years. washington (district of columbia): u.s. weather bureau. 65 p. technical paper no. 40. available from: http://www.nws.noaa.gov/oh/ hdsc/technical_papers/tp40.pdf. jackson k, walker j. 2017 dec 20. ready, set, swift: time for water utilities to save. the texas tribune: tribtalk. available from: https://www.tribtalk.org/2017/12/20/ ready-set-swift-time-for-water-utilities-to-save/. kuzmitski h. 2019 jan 24. engineering with nature book launch is a resounding success. u.s. army corps of engineers. available from: https://www.usace.army.mil/media/ news-archive/story-article-view/article/1750150/engineering-with-nature-book-launch-is-a-resounding-success/. lightbody l, miller y. 2019 jun 14. flood readiness get bigger in texas. the pew charitable trusts. available from: https://www.pewtrusts.org/en/research-and-analysis/articles/2019/06/14/flood-readiness-gets-bigger-in-texas. 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[twdb] texas water development board. 2019a. frequently asked questions: flood legislation from the 86th texas legislative session. austin (texas): texas water development board. available from: https://www.twdb.texas.gov/ home/tabs/doc/faq_flood-implementation-fund.pdf. [twdb] texas water development board. 2019b. implementation of flood legislation from the 86th texas legislative session. austin (texas): texas water development board. available from: http://www.twdb.texas.gov/flood/doc/ flood_implementation_issues_for_stakeholder_consideration.pdf. [twdb] texas water development board. 2019c. proposed changes to texas administrative code regarding funding of flood mitigation projects. austin (texas): texas water development board. available from: http://www.twdb. texas.gov/board/2019/11/board/brd02.pdf. [twdb] texas water development board. 2019d. proposed flood planning region boundaries to implement new flood planning requirements of senate bill 8. austin (texas): texas water development board. available from: http:// www.twdb.texas.gov/board/2019/12/board/brd03.pdf. [twdb] texas water development board. 2019e. proposed new texas administrative code chapters 361 and 362 relating to regional and state flood planning. austin (texas): texas water development board. available from: http://www.twdb.texas.gov/board/2019/12/board/brd04. pdf. [twdb] texas water development board. 2019f. state flood assessment: report to the legislature, 86th legislative session. austin (texas): texas water development board. available from: http://www.texasfloodassessment.com/. [twdb] texas water development board. 2019g. swift: state water implementation fund for texas (swift). available from: http://www.twdb.texas.gov/financial/programs/swift/index.asp. [twdb] texas water development board. 2017. 2017 texas state water plan. austin (texas): texas water development board. available from: https://2017.texasstatewaterplan. org/statewide. watson k, harwell g, wallace d, wellborn t, stengel v, mcdowell j. 2018. characterization of peak streamflows and flood inundation of selected areas in southeastern texas and southwestern louisiana from the august and september 2017 flood resulting from hurricane harvey. washington (district of columbia): u.s. geological survey. 56 p. u.s. geological survey scientific investigations report 2018–5070. available from: https://doi. org/10.3133/sir20185070. appendix a. issues and concerns addressed by flood-related bills introduced in the 86th texas legislature • property tax • debris removal • emergency alerts • dam operations • casino gaming • public meeting procedures • personal identification • climate change • infrastructure assessment • loan interest rates • mail carriers • property insurance • outreach programs • housing recovery • government contractors • buying a home • legal counsel • government assistance forms • aquifer storage and recovery • affordable housing • handguns • sand and gravel mining • border wall construction • feeding state employees • federal funds • business advisory council • recovery program audits • leasing property • education finance • health care volunteers • state agency coordination • public office residency requirements • permit and inspection fees • volunteer repairs • supplemental nutrition assistance • health care accessibility https://capitol.texas.gov/search/textsearch.aspx https://www.twdb.texas.gov/home/tabs/doc/faq_flood-implementation-fund.pdf https://www.twdb.texas.gov/home/tabs/doc/faq_flood-implementation-fund.pdf http://www.twdb.texas.gov/flood/doc/flood_implementation_issues_for_stakeholder_consideration.pdf http://www.twdb.texas.gov/flood/doc/flood_implementation_issues_for_stakeholder_consideration.pdf http://www.twdb.texas.gov/flood/doc/flood_implementation_issues_for_stakeholder_consideration.pdf http://www.twdb.texas.gov/board/2019/11/board/brd02.pdf http://www.twdb.texas.gov/board/2019/11/board/brd02.pdf http://www.twdb.texas.gov/board/2019/12/board/brd03.pdf http://www.twdb.texas.gov/board/2019/12/board/brd03.pdf http://www.twdb.texas.gov/board/2019/12/board/brd04.pdf http://www.twdb.texas.gov/board/2019/12/board/brd04.pdf http://www.texasfloodassessment.com/ http://www.twdb.texas.gov/financial/programs/swift/index.asp http://www.twdb.texas.gov/financial/programs/swift/index.asp https://2017.texasstatewaterplan.org/statewide https://2017.texasstatewaterplan.org/statewide https://doi.org/10.3133/sir20185070 https://doi.org/10.3133/sir20185070 texas water journal, volume 11, number 1 state legislature, voters move to eighty-six texas’s flooding challenges12 • suspension of regulations • landfills • mosquito control • oil and gas spill prevention • alcohol disposal • immunization records • government communications • assistance case management • government expenditure records • road construction • internet access • aboveground storage tanks • peace officers • vehicle salvage, repair, and assembly • telecommunications • city legal immunity • vocational apprenticeship • family and protective services • price gouging • vehicle registration • local drainage districts • trade service fraud • personal information privacy • growth of state expenditures • land banking • state employee leave • green infrastructure • infrastructure security • disease prevention • emergency management personnel • recycling • food banks • strategic planning • drone operation • cemeteries • volunteer fire departments • faith-based disaster assistance • utility billing • land easements and rights-of-way • teacher salaries • luxury vehicles • elderly and disabled persons appendix b. flood-related bills originating in the house passed by the 86th texas legislature hb 5 (phelan) requires tdem to develop a catastrophic debris management plan and model guide for political subdivisions in the event of a disaster and supports the creation of associated training programs and a wet debris study group. hb 6 (morrison) prescribes a disaster recovery task force within tdem to provide specialized assistance and facilitate long-term recovery efforts. hb 7 (morrison) requires the office of governor to compile a list of statutes and rules that may be suspended in the event of disaster and prescribes tdem to assist political subdivisions with common disaster-related service contracts. hb 26 (metcalf ) requires dam operators to include a notice requirement in their emergency action plans dictating that affected persons and communities downstream from reservoirs receive detailed notice of water releases during natural disasters. hb 137 (hinojosa) requires tceq to provide a report on high and significant hazard dams to the emergency management representative in the area where the dam is located. hb 492 (shine) allows income-producing personal property and property improvements to qualify for a property tax exemption if they are located in a declared disaster area and sustain at least 15% damage. hb 720 (larson) allows unappropriated water, including stormwater and floodwater, to be used for aquifer recharge. hb 721 (larson) directs twdb to conduct studies of such aquifer storage and recovery projects. hb 831 (huberty) clarifies the eligibility of officeholders to run for election who have been displaced by a disaster. hb 852 (holland) prohibits municipalities from requiring information on the value of residential dwellings for the assessment of permits and fees, except as required by the national flood insurance program (nfip). hb 907 (huberty) increases fines for unregistered aggregate producing operations. hb 1052 (larson) allows certain twdb funds to be used in support of underground storage of floodwaters. hb 1177 (phelan) allows licensed texans to carry their firearms when their property is under a mandatory evacuation. hb 1256 (phelan) directs the department of state health services to provide direct access to first responder immunization information in the event of a disaster. hb 1263 (ed thompson) authorizes brazoria drainage district number 4 to order private property owners to maintain infrastructure to allow access for drainage maintenance. hb 1306 (frullo) provides for additional flood insurance coverage by surplus lines insurers. hb 1307 (hinojosa) directs tdem to create an electronic disaster case management system. hb 1755 (ed thompson) clarifies the titling and registration of assembled vehicles and former military vehicles to prohibit the use of flood-damaged electrical or mechanical components. hb 1820 (bailes) creates the liberty county drainage district. texas water journal, volume 11, number 1 13state legislature, voters move to eighty-six texas’s flooding challenges hb 1824 (murr) waives the permit requirement to remove sediments from the san jacinto river and its tributaries. hb 2305 (morrison) establishes a work group through tdem to improve the training and credentialing of emergency management personnel. hb 2310 (vo) creates an information sharing process regarding flood-damaged vehicles repaired using fema funds. hb 2320 (paul) facilitates the integration of telecommunications providers into disaster planning and recovery and requires tdem to identify strategies for hardening utility facilities and critical infrastructure. this legislation also increases the availability, accountability, and oversight of building trade services professionals while promoting public awareness of utility payment assistance during a disaster. hb 2325 (metcalf ) coordinates information management communications strategies among government agencies and the public during and after a disaster. hb 2335 (walle) directs the health and human services commission to work with county judges to establish a list of sites that can maintain accessibility to supplemental nutrition assistance program benefits after a natural disaster. hb 2340 (dominguez) encourages federal-state partnerships to improve information sharing and efficiency and also creates an unmanned aircraft study group to identify state laws that may be changed to improve the use of drones in disaster response. hb 2345 (walle) establishes the institute for a disaster resilient texas under the texas a&m university system. hb 2634 (flynn) creates specifications for developing cemeteries in relation to areas used for flood control. hb 2784 (phelan) directs the texas workforce commission to create the texas industry-recognized apprenticeship programs grant program to engage the private sector in boosting the state’s specialized industrial workforce to respond to the needs of hurricane harvey. hb 3070 (ken king) authorizes volunteer fire departments to submit an emergency request to the rural vfd assistance program to repair or replace equipment damaged or lost in responding to a disaster. hb 3175 (deshotel) mandates the confidentiality of personal information used in disaster recovery fund applications. hb 3317 (zerwas) exempts the disaster recovery loan account, the flood infrastructure fund, the texas infrastructure resiliency fund, and the disaster reinvestment and infrastructure planning revolving fund from becoming part of the general revenue fund. hb 3365 (paul) provides civil liability protections (good samaritan laws) to charitable organizations, emergency response agencies, and associated volunteers who assist in disaster response. hb 3384 (shine) authorizes the texas comptroller of public accounts to provide for a limited-scope review of appraisal districts in disaster areas. hb 3616 (hunter) creates a faith-based organization task force to help tdem coordinate with faith-based organizations in disaster response and recovery. hb 3668 (walle) establishes a grant program for local food banks to build capacity to respond to disasters. hb 3782 (harless) establishes a process for the harris county flood control district to remove personal property from district land or easement, for the purpose of flood infrastructure maintenance, after notification. hb 3815 (morrison) requires the disclosure to homebuyers of previous flood history, flood insurance coverage, and location within flood-prone areas. hb 3913 (huberty) creates an exemption from public information laws at the state level for personal information obtained by certain flood control districts. hb 4726 (dominguez) creates the cameron county flood control district. appendix c. flood-related bills originating in the senate passed by the 86th texas legislature sb 2 (bettencourt) prescribes a number of changes to property taxation procedures, including those in declared disaster areas. sb 6 (kolkhorst) addresses a number of disaster response and recovery issues, including wet debris management, training and credentialing of emergency management personnel and political officers, a disaster recovery loan program through tdem, and the potential creation of a single automated intake system for obtaining disaster assistance from multiple state and federal programs. sb 7 (creighton) creates the flood infrastructure fund through twdb to provide financial assistance for flood projects. the legislation also creates the texas infrastructure resiliency fund to serve as a matching account to leverage federal dollars in addition to supporting data collection and mitigation projects identified in future state flood plans. sb 8 (perry) directs twdb to develop a comprehensive state flood plan every 5 years based on regional flood plans. the bill also requires twdb to designate these planning regions and provide assistance to each through the development process. tsswcb is charged with creating a repair and maintenance plan for flood control dams every 10 years (with coordination from twdb and tceq). texas water journal, volume 11, number 1 state legislature, voters move to eighty-six texas’s flooding challenges14 sb 285 (miles) directs the governor to issue an annual hurricane preparedness proclamation before each hurricane season (june 1), to publish a report on state agencies’ preparedness following this proclamation, and to ensure agency preparedness through executive order. glo will conduct an annual public information campaign addressing available housing assistance in the event of a hurricane or flood. sb 289 (lucio) requires tdem to develop a disaster recovery task force for use in long-term disaster recovery and future preparation. it also calls on local governments to adopt local housing recovery plans with guidance from the hazard reduction and recovery center within the texas a&m university system. sb 300 (miles) authorizes glo to enter into four-year indefinite quantity contracts with vendors for services in the wake of a disaster. sb 339 (huffman) requires the standard seller’s disclosure for residential purchases to include flood insurance status, flooding history, and location in flood-prone areas. sb 416 (huffman) authorizes the attorney general to provide legal counsel on disaster-related issues to local governments in a disaster area. sb 442 (hancock) requires insurance providers to inform policyholders when their property insurance does not cover flooding and to inform of the potential need to purchase flood insurance. sb 493 (alvarado) permits the allocation of additional low-income housing tax credits to one portion of the city of houston that has been declared a disaster area. sb 494 (huffman) allows the temporary suspension of public information law requirements for government bodies impacted by a disaster. sb 500 (nelson) makes supplemental appropriations, with specifications for numerous flooding and disaster programs. sb 537 (kolkhorst) allows the texas department of transportation to purchase food and beverage for employees unable to leave their assignment area during disaster response. sb 563 (perry) requires agencies distributing federal funds for flood projects to submit quarterly reports to twdb. sb 752 (huffman) reduces civil liability for volunteer health care professionals who provide services related to a disaster. sb 799 (alvarado) establishes a business advisory council to guide state and local governments in helping businesses recovery from a disaster. it also transfers administration of tdem from the department of public safety to the texas a&m university system. sb 812 (lucio) clarifies that home repairs or replacements made due to hurricane harvey are not considered new improvements for the purpose of property taxation. sb 981 (kolkhorst) facilitates greater collaboration between state and local officials to administer the disaster supplemental nutrition assistance program. sb 982 (kolkhorst) directs tdem to develop a plan for emergency shelter for specialty care populations in a disaster, facilitate coordination between local governments and volunteer networks, and create state-controlled volunteer mobile medical units in counties where volunteer networks are lacking. it also establishes a task force on disaster issues affecting elderly persons and persons with disabilities. sb 986 (kolkhorst) directs the comptroller of public accounts to update the contract management guide to include standards and information related to disaster response, including that of debris management, infrastructure repair and construction, and preparation. sb 1113 (lucio) authorizes local health departments in a disaster area to apply for a waiver to allow unlicensed staff to apply mosquito control pesticides. sb 1210 (hancock) establishes a process for the disposal of flood-damaged alcoholic beverages. sb 1312 (lucio) directs state agencies to study vector-borne disease issues along the texas-mexico border and makes changes to some mosquito control activities. sb 2168 (watson) adjusts criteria for forgiving local match requirements for economically disadvantaged counties that have suffered repeat disasters. sb 2212 (taylor) authorizes three coastal drainage districts to enter into a partnership with usace to implement coastal flood mitigation projects. sb 2452 (lucio) provides for the economically distressed areas program for water supply and sewer services and directs twdb to maximize program effectiveness through bond proceeds in conjunction with other sources of financial assistance. fema 2019 berg 2018 perica et al. 2018 patrick 2017a patrick 2017b straus 2017 noaa 1895 tlo 2019 appendix a hershfield 1961 perica et al. 2018 hb 2310 (vo) abbott 2019c abbott 2019b abbott 2019a twdb 2019b twdb 2019a twdb 2019c twdb 2019f twdb 2019d twdb 2019e twdb 2019e perica et al. 2018 twdb 2019e twdb 2019a twdb 2019b twdb 2019c twdb 2019c twdb 2019e s.b. 8 . . . 2019 twdb 2019e twdb 2019b twdb 2019a twdb 2019c s.b. 7 . . . 2019 twdb 2019b jackson and walker 2017 twdb 2019g s.b. 7 . . . 2019 dart 2019 lightbody and miller 2019 kuzmitski 2019 twdb 2019b twdb 2017 cleaveland et al. 2011 watson et al. 2018 twdb 2019e twdb 2019f implementing three-dimensional groundwater management in a texas groundwater conservation district texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 7 number 1 2016 texas water journal http://texaswaterjournal.org volume 7, number 1 2016 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university kevin l. wagner, ph.d. texas water resources institute ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources staff editor kristina j. trevino, ph.d. cover photo: lake austin dam on the colorado river, june 15, 1935. photo co8484, austin history center, austin public library. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 7, number 1, pages 69-81 abstract: the guadalupe county groundwater conservation district has implemented a 3-dimensional water management solution that allocates pumping rights based on actual volumes in place under a tract. this new regime treats the aquifer as a “constant level lake” where rights holders are awarded the right to a percentage of the inflow (recharge) based on the volume of saturated sands underneath their property. three-dimensional management can improve texas groundwater governance by strengthening property rights, promoting conservation, and unlocking economic value by promoting water trading and collateralization. it is also cost-effective and can be rapidly implemented: the guadalupe county groundwater conservation district created its initial 3-dimensional ruleset in approximately 4 months at a cost of roughly $15,000. larger districts or districts that could not benefit from an existing property parcel map created by an appraisal district would face higher costs. creating the type of property ownership maps used by local tax appraisal districts can cost as much as $100,000. yet the intensive property tax regime in texas means that even the least-populous counties typically already have such information available in digital form. quantifying the available water volume beneath each property and making pumping rights transferrable between wells profoundly transforms groundwater management and confers clear vested rights to water in place. as such, it can provide economic recourse to smaller water holders even in areas where municipalities and other large pumpers enter the district. in short, this forward-looking, conservation-oriented new ruleset provides a way for texas groundwater stewards to move past flat surface acreage-based allocations and move into an era where a handful of large pumpers in a district do not erode the property rights of smaller holders. quantifying water in place involves averaging and making certain approximations and generalizations because of the inevitably complex nature of geologic formations. over time, groundwater conservation districts and their constituent members will determine how deeply to engage that complexity. the bottom line is that 3-dimensional management offers an exponential degree of improvement over existing texas groundwater management models. the guadalupe county groundwater conservation district’s ruleset embraces a philosophy of iterative learning and improvement and acknowledges that employing models as tools of governance always involves approximations. it handles this by including the capacity to rapidly update and revise its approach as the district obtains additional data points and insights through operational implementation of its rules. keywords: rule of capture, groundwater governance, conservation, dormant rights, collateralization, water market, cap and trade hilmar blumberg1 and gabriel collins2* implementing three-dimensional groundwater management in a texas groundwater conservation district 1 director, district 2 and secretary, guadalupe county groundwater conservation district, seguin, texas. 2 baker botts fellow in energy and environmental regulatory affairs at rice university’s baker institute for public policy, houston, texas. please note that in this analysis, mr. blumberg and mr. collins are expressing their respective personal ideas and opinions and that these do not necessarily reflect the views of the guadalupe county groundwater conservation district or the baker institute for public policy. *corresponding author: gabe.collins@rice.edu texas water journal, volume 7, number 1 citation: blumberg h, collins g. 2016. implementing three-dimensional groundwater management in a texas groundwater conservation district. texas water journal. 6(1): 69-81. available from: https://doi.org/10.21423/twj.v7i1.7037. © 2016 hilmar blumberg, gabriel collins. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v7i1.7037 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 7, number 1 implementing three-dimensional groundwater management 70 the texas supreme court’s landmark day decision in 2012 held that surface owners have the right of absolute ownership to groundwater underlying their tracts.1 yet day only establishes the ownership right to groundwater; it does not set forth guidelines on how to practically allocate and manage groundwater resources in a rapidly growing state with volatile weather conditions. as such, the challenge moving forward is to find a way of maximizing groundwater’s value to the predominantly rural property owners under whose tracts it lies while also helping that water flow to thirsty urban areas that are the engines of texas’ demographic and economic growth. groundwater conservation districts should seek to create fully developed systems of property management for their constituents, aiming to maximize and preserve property value while supporting a right to exclude. for groundwater, unlimited, perfect exclusion is presently impossible, as water molecules flow in response to changing pressure gradients. yet with a developed free market with broad and predictable participation, like that which 3-dimensional groundwater management seeks to catalyze, a reasonable facsimile is possible that protects property rights, preserves precious water resources for future generations, and unlocks collateralization and other new forms of value-accretive economic activity. this is a key underpinning of the property right and an important shortcoming of the day opinion, which in many ways gives groundwater owners an absolute ownership right but no practical remedy to enforce it. “going 3-d” groundwater offers a dependable water source that is less rapidly affected by drought than surface water and buys municipalities and other non-agricultural users time to adjust to a long-term dry cycle, such as the one texas experienced in the 1950s. a 3-dimensional groundwater management system that strengthens property rights and increases water’s value while it still sits in an aquifer would offer a strong tool for inducing conservation of the resource and would benefit future generations of texans. for its portion of the carrizo aquifer, the guadalupe county groundwater conservation district has created a transparent and cost-effective management solution that empowers local water owners. this solution entailed mapping the resource and equitably dividing it based not on flat surface acreage but rather on the available volume of saturated carrizo aquifer sand under each tract. by adopting this approach, the district has found a clear and powerful way potentially to transform texas groundwater governance, moving from the old 2-dimensional regime of surface-based flat extraction limits to a new 3-dimensional model that visualizes the geological arrange1 edwards aquifer auth. v. day, 369 s.w.3d 814 (tex. 2012) ment of groundwater in-place under a surface tract, quantifies its volume, and grants extraction rights accordingly, pro rata. each groundwater conservation district faces unique local hydrological, economic, and political conditions. the changes the guadalupe groundwater conservation district made to its ruleset might not, without further suitable adjustment or alteration, be universally applicable across other groundwater conservation districts. yet this solution offers a working model that leverages existing legal precedent and statutory powers to create a better way to manage groundwater resources for the benefit of both private owners and the consuming public. in brief, the guadalupe county groundwater conservation district operationalized the day decision, which affirmed surface owners’ absolute ownership rights to the groundwater underlying their tracts. its method of doing so focuses on meeting 3 core criteria essential for reshaping groundwater management in a fair, sustainable, and value-maximizing manner. first, legal and political feasibility. the need for a better groundwater governance system is a “here and now” issue in texas, and potential solutions must reflect this reality. the desire for perfection cannot be allowed to prevent something clearly forward-looking from being created. to that point, there is a need for a system that can be timely built and implemented in the state’s current legal and political climate. because inclusivity enhances feasibility, delineating the resource and using a transparent, market-based allocation system protects rural property owners who control much of the access to texas groundwater supplies and positions them to monetize their water resources in a market-based system that favors the highest-value uses. second, flexibility and scalability. in texas, underground water governance needs a system that can react nimbly to climate changes, water demand imposed by a fast-growing economy, and population growth, which is among the highest in the nation in both rate and scale. to give a sense of how profoundly and rapidly a drought can affect water demand in texas, groundwater use rose by more than 2.7 million acre-feet year-on-year in 2011, according to texas water development board data. a mapping and volumetric rights allocation system offers a strong and actionable solution among the currently available alternatives for managing increasingly scarce groundwater resources. each of texas’ dozens of underground water-bearing formations is geologically and hydrologically different. likewise, the politics of each groundwater conservation district and groundwater management authority differ as well. in that spirit, this case study is not intended to offer a “one size fits all” solution. rather, it acknowledges that to succeed in the long run, groundwater management regimes need to be rooted in and reflect local conditions—the same reality that undertexas water journal, volume 7, number 1 71implementing three-dimensional groundwater management pinned the groundwater district act of 1949 (discussed in greater detail below). third, fairness and protection of private property rights. under more familiar rules, especially those with overly generous, flat, surface-based correlative rights, groundwater resource development typically only benefits a handful of owners whose tracts overlie the thickest section of a water-bearing formation. once a developer comes in, drills a well field, and begins pumping, a relatively small surface holding can absorb a significant portion of the allowable water extraction for the entire district. this ultimately means that many landowners who sit atop thinner sections of the aquifer, but have a property right in the water nonetheless, are effectively precluded from ever developing or monetizing the water assets underlying their land. in contrast, the guadalupe county groundwater conservation district’s approach aims to make rights from throughout the district—even those over thinner saturated sands—to be marketable. the district provides significant information about the local groundwater resource and ownership characteristics, including saturated sand thickness on a tract-by-tract basis, which accrues to the benefit of local water owners.2 providing owners a solid base of information to inform their decisions helps protect private property rights. along these lines, a groundwater conservation district that has mapped and subdivided its resource base is operating at a high standard of stewardship in full compliance with chapter 36 of the texas water code, which, among other things, demands that groundwater conservation districts “use the best available science in the conservation and development of groundwater through rules developed, adopted, and promulgated by a district in accordance with the provisions of this chapter.”3 while some of the district directors may not have intended to create a water market when they adopted a new ruleset in 2004, those who authored the rules understood their deeper implications. the greater availability of information, combined with the fact that each water rights owner now possesses a protected slice of the carrizo aquifer pie in the district, sets the stage for a functional commodity market in water rights. as a robust market develops, better information 2 guadalupe county groundwater conservation district, “water rights,” http://www.gcgcd.org/water-rights.html 3 texas water code, chapter 36.0015(b). in this statute, “best available science” means “conclusions that are logically and reasonably derived using statistical or quantitative data, techniques, analyses, and studies that are publicly available to reviewing scientists and can be employed to address a specific scientific question.” we firmly believe the guadalupe county groundwater conservation district’s creation of a saturated sands volumetric model and subsequent allocation of rights based on a recharge-driven annual production cap clearly meets the water code’s standard. availability will enable the market to function more efficiently and fairly—especially from the perspective of landowners atop valuable groundwater assets whose political buy-in is essential to the long-term legitimacy of new water resource governance models.4 information transparency maximizes the total net economic value of the resource under the district’s jurisdiction, while safeguarding against disproportionate rent transfers driven by the information asymmetry between sophisticated, well-capitalized buyers and sellers who might lack the means to ascertain what their resource is truly worth. this in turn helps create a fairer market, which generally helps cement local buy-in and drive grassroots political support that ultimately reduces risk to the big capital interests needed to finance large-scale water supply projects. market-oriented groundwater conservation district rulesets also help promote conservation by shifting users’ views from being purely extraction-based to being self-sustaining, commerce-based. in essence, owners have a fully vested property right that can be bought, sold, inherited, and used in other value-accretive ways. marketable water rights can become a long-term asset that motivates owners of these rights to evince ever-greater interest in the election of forward-looking, conservation-minded groundwater conservation district directors. for these reasons, the guadalupe county groundwater conservation district’s new ruleset closely adheres to the texas legislature’s stated purposes behind the creation and empowerment of groundwater conservation districts, as outlined in chapter 36 of the texas water code. the district formed the new ruleset to protect property rights.5 it is also balancing the conservation and development of groundwater resources to meet the state’s interest in future, sustainable development.6 finally, the district’s innovative use of the saturated volume model and commensurate division of water rights represents an application of “the best available science” to help find a proper balance between the conservation and development of groundwater.7 4 see, for instance: damodaran, aswath. “the value of transparency and the cost of complexity.” available at ssrn 886836 (2006). 5 “groundwater conservation districts created as provided by this chapter are the state’s preferred method of groundwater management in order to protect property rights, balance the conservation and development of groundwater to meet the needs of this state, and use the best available science in the conservation and development of groundwater through rules developed, adopted, and promulgated by a district in accordance with the provisions of this chapter.” tex. water code ann. § 36.0015 (west) 6 id. 7 id. http://www.gcgcd.org/water-rights.html texas water journal, volume 7, number 1 implementing three-dimensional groundwater management 72 how and why the district chose to create a 3-dimensional model the guadalupe county groundwater conservation district was created in 1997 by chapter 1066, acts of the 75th texas legislature and was then amended in 1999 by house bill 3817.8 house bill 3817 created the district in its present form with 7 directors elected from 7 single member districts and limited the district geographically to the portion of guadalupe county that lies outside the boundaries of the edwards aquifer authority.9 guadalupe county groundwater conservation district lacks taxing authority and raises all of its income from fees imposed on municipal and commercial groundwater transactions in the district.10 the district oversees groundwater extraction in an area with a population of more than 140,000 people and lies on the periphery of the rapidly growing san antonio metropolitan area. guadalupe county has grown from 89,000 residents in 2000, to more than 131,500 in 2010, and an estimated 147,250 in 2014, according to the u.s. census bureau. approximately a third of these people live within the district boundaries.11 groundwater from the carrizo aquifer provides the baseline groundwater supply in the district. the wilcox aquifer also underlies the district, but there is no reported production from that layer to date in the portion of guadalupe county under the district’s jurisdiction. upon its creation, the guadalupe county groundwater conservation district board initially adopted rules directly derived from other, pre-existing groundwater conservation districts atop the carrizo and wilcox aquifers that also underlie guadalupe county. specifically, these rules relied upon (1) overly generous surface acreage-based production limits bound by a districtwide upper production limit set purposely low relative to the amount of water rights distributed; (2) wells being spaced far apart; and (3) water rights contiguity, meaning that rights had to be around the wells and connected.12 8 “groundwater management plan,” guadalupe county groundwater conservation district, 8 november 2012. 9 id. 10 id. 11 allison, bass & associates, llp report dec. 2011 gcgcd voting rights submission/election boundaries 12 id. the general rules enumerated above these rules were designed for an environment of very low demand and very large supply, with a few local users using water for irrigation, livestock, and other limited volume domestic supply. they were not designed to handle the issues that arise when nearby municipalities seek to extract and export tens of thousands of acre-feet per year of water from the area. the call to action certain guadalupe county groundwater conservation district board members began to reconsider their rule structure as they watched several large municipal water suppliers—the san antonio water system, schertz-seguin local government corporation, and canyon regional water authority—begin industrial-scale water rights acquisition and extraction in neighboring gonzales county. of particular concern, the board saw that the gonzales county underground water conservation district’s outdated ruleset led to a small handful of surface owners atop the thickest aquifer sections striking deals with the municipal suppliers, at which point the district essentially hit its annual production ceiling. as such, the few landowners who owned tracts atop the thick sections of the carrizo aquifer in gonzales county effectively locked up the resource and locked out other groundwater holders. the latter’s water lost much of its economic value because the district had reached its annual production cap and owners who had not yet entered the market were thus precluded from leasing their water. surface acreage-based correlative water rights, combined with contiguity requirements and caps on production imposed by groundwater conservation districts, break down when municipal-scale water extraction projects enter the picture. two primary factors drive this reality. first, just as the subsurface geology does not correspond with the surface topography, neither does the subsurface hydrogeology generally correspond with the distribution of surface holdings. some tracts lie atop thin spots of saturated sand, while others sit atop the down-dip “sweet spots” in the aquifer where there may be several hundred feet or more of accessible water. the natural, extreme variations of saturated sand thickness and productivity within a connected aquifer system illustrate a critical flaw in the correlative, flat, surface acreage-based withdrawal regulation system used by many groundwater conservation districts in texas. second, water migrates in response to pressure changes. when a developer sinks large-bore wells into the sweet spots and begins extracting large volumes of water, migration in the aquifer favors the down-dip holders at the expense of those owners atop thinner sands, who may find their property completely pumped away. under texas case law, such owners generally have no legal recourse to prevent neighbors from pumping the same groundwater that those same cases also clearly—and ironically—state is their “real property.”13 motivated by the events in gonzales county, guadalupe 13 gabe collins, blue gold: commoditize groundwater and use correlative management to balance city, farm, and frac water use in texas, 55 nat. resources j. 441, 448 (2015); see also sipriano v. great spring waters of am., inc., 1 s.w.3d 75, 76 (tex. 1999) texas water journal, volume 7, number 1 73implementing three-dimensional groundwater management county groundwater conservation district has moved to rectify this inconsistency through exercise of the substantial powers conferred upon groundwater conservation districts under the texas water code. the legal authority for the district’s action is examined in greater detail later in the paper. the guadalupe county groundwater conservation district faced the same concentrated water rights ownership situation that had created such an inequitable outcome in gonzales county, as only 25% of the district’s acreage sits atop the thickest water-bearing strata: 350 feet thickness or greater (figure 1). in the thickest intervals—350 feet to 662 feet—the ownership concentration level is very high. the 10 largest surface acreage holders account for 55% of total surface acreage atop water that is thicker than 350 feet, and the 5 largest surface owners in this group account for nearly 42% of all acreage atop the water layer that is 350 feet or thicker.14 the uneven distribution of water-bearing strata is precisely what makes the guadalupe county groundwater conservation district’s 3-dimensional management system so necessary. the thick aquifer sections are exactly the sweet spots that a 14data on water rights holders sourced from the guadalupe county groundwater conservation district. guadalupe county groundwater conservation district, “water rights,” http://www.gcgcd.org/water-rights. html. (last accessed on 9 august 2016) water developer seeking to supply a municipality will want to drill into. under the traditional management model based on flat correlative rights and district-wide production caps based on desired future conditions, these are the parties who would stand to reap most, if not all, of the economic returns, albeit in a shape-shifted version of the old, unadulterated “rule of capture,” while the well field inexorably dries up their neighbors’ groundwater holdings. yet, if a large water exporter comes into the guadalupe county groundwater conservation district, the outcome will be very different. each landowner sitting over various sections of the aquifer possesses a monetizable interest. because water rights are transferrable without restriction to any well, the specific distribution of each cubic foot of saturated sand matters less than it would in a simple surface acreage-based allocation system. money from water sales will flow to the owners of that cubic foot so long as they choose to participate in the market. owners who sit atop thicker sections of the aquifer will still make more money if they lease. unlike under a uniform surface-acreage system, where the thick water owners receive everything, under the 3-dimensional management model, owners of thinner sections now also have rights that allow them to participate in the marketplace. figure 1. guadalupe county groundwater conservation district acreage holdings classified by the thickness of water-bearing layer. source: guadalupe county groundwater conservation district, authors’ analysis. http://www.gcgcd.org/water-rights.html http://www.gcgcd.org/water-rights.html texas water journal, volume 7, number 1 implementing three-dimensional groundwater management 74 how the district reformed its ruleset guadalupe county groundwater conservation district board members moved rapidly in the wake of the gonzales county water deals to restructure their management system so that future water commercialization would be fairer to property owners in the district. in contrast to legal and legislative solutions that often require years to craft and implement, the district needed a much shorter time—approximately 6 months—to develop its policy proposal, map the resource, and have the idea ready for public presentation and adoption. the proposal’s sponsors operated under the philosophy that “the perfect should not be the enemy of the good” and sought to craft a system that would work immediately, but also could be improved as the district’s demographic and hydrological characteristics evolved. some of the district’s directors ultimately voted for the new ruleset not to create a water market but rather to ensure that they were fully discharging their duties as groundwater resource stewards, as prescribed by chapter 36 of the texas water code. step one involved crafting the intellectual framework. first, the district recognized that a flat correlative rights system based solely on surface acreage fails to account for the reality that some property owners over an aquifer lie atop deeper, thicker saturated cross-sections of the aquifer, and can thus access more water and enjoy greater market functionality. in accounting for this, the district was in line with the texas supreme court’s analysis in day, specifically the court’s position that “regulation that affords an owner a fair share of subsurface water must take into account factors other than surface area.”15 developing a more sophisticated allocation approach that goes beyond simple surface area divisions takes into account that deeper, thicker water is easier to produce. someone who owns property over 10 feet of saturated sand generally cannot pump as much water as someone who owns property over 800 feet of saturated sand. hence, in the aquifer situation, the thickness of saturated sand beneath a property does have a market implication to be reckoned with in the general water rights equation. for up-dip water holders, the key difference between the 3-dimensional management system and traditional management systems is that water molecules are treated as a vested property right before they are ever pumped. in addition, owners know with certainty how large their share of the district’s total allowable water extraction volume is. this paves the way for up-dip owners to be compensated for water pumping that may not involve wellbores on their tract but drains water in place that would have never been monetizable in a non-3-dimensional system. 15 edwards aquifer auth. v. day, 369 s.w.3d 814, 841 (tex. 2012) moving beyond the old correlative rights system and the “rule of capture” ideas it was paired with democratizes groundwater assets and allows even small holders to monetize what they own rather than following the traditional development model. in the traditional model, a minority of landowners atop thick sections of the aquifer make a lot of money while others’ water is effectively cut off from potential sales opportunities because the deep-dip holders have occupied the entire annual production quota. in such a worst case scenario, some water holders up dip would receive no compensation at all while their remaining water is drawn away by large extraction projects. in essence, the district’s new ruleset makes all groundwater rights under its jurisdiction into something akin to royalty interests in a pooled oil and gas lease. in both cases, leased rights owners—even if the wells are not on their tract—still receive a share of production proportional to their acreage holdings.16 in both cases, land owners with export-oriented well fields on their tracts can also negotiate additional payments for damages, right of way access, and other matters. but the underlying groundwater resource is monetizable in a way that allows all groundwater owners to lease their rights and proportionally earn income from industrial-scale water sales. from a resource conservation perspective, the most important difference between pooling of water interests and pooling of oil and gas interests is that oil and gas production expressly seeks to extract as much of the resource as economically possible. to the contrary, the 3-dimensional groundwater management philosophy is predicated upon setting an annual withdrawal limit based on recharge and then allocating this inflow volume based on the amount of saturated sand underneath each tract and allowing trading of rights within the volume parameters established by the annual production cap. step two required the district to map its groundwater resources. district members began working on the project in early 2004. to improve its ability to allocate the resource, the district modeled the saturated sands beneath every property located above the carrizo aquifer. it did so by cross-vectoring, that is, blending together, an extant digital property surface map from the guadalupe county appraisal district with a computer-generated saturated section thickness (isopachous) map, which, after integration, can easily assign every property over the aquifer a certain percentage of the entire saturated section volume in the district (figure 2). the carrizo and the wilcox aquifers under the guadalupe county groundwater conservation district’s jurisdiction feature major bands of more transmissive sands interlaced with less transmissive bands of sandy clays, but the entire aquifer, 16 a central tenet of pooling for oil and gas development is that “production anywhere on a pooled unit is treated as production on every tract in the unit.” key operating & equip., inc. v. hegar, 435 s.w.3d 794, 799 (tex. 2014) texas water journal, volume 7, number 1 75implementing three-dimensional groundwater management part of the district’s rule set on august 12, 2004. the saturated sand volume was modeled using 16 feet by 16 feet square surface cells projected down through the saturated section exactly below, yielding the total estimated saturated section volume correlated to a given property. the district district, the aquifer may be thought of as a static-level lake with a certain inflow (recharge) that is divided fairly to all property owners “on the bank of the lake.” the constant-level lake is owned by no one, only the inflow (recharge). the inflow is distributed pro rata, depending on how many feet of bank each owner owns and the “lake” (i.e. the aquifer) is only a temporary holding tank for the inflow. with the 3-dimensional model, the recharge (or some percentage of it) is distributed to every property owner pro rata, depending how many water molecules are under each property owner’s property, not how deep those water molecules are, or how much pressure they are under. awarding value (extra rights) because of artesian pressure is really part of the old order that is rooted in rulesets that award the deepest water most, if not all, of the selling rights. all of the carrizo and all of the wilcox, is really a connected, saturated collection of sands and clays. the district based its model on the thickness of the saturated sections, assuming that everyone with any saturated carrizo had about the same amount of water per cubic foot of saturated matrix. this assumption was predicated on the reality that the aquifer is heterogeneous within fairly predictable limits; therefore, the model would yield useful results that far more closely mirror reality than 2-dimensional, flat surface acreage-based allocation models ever could. the gis database and 3-dimensional model of the saturated thickness were created using contour data, water level measurements and other relevant data provided by the district’s hydrologist.17 the computer-generated saturated sands model became 17 as currently conceived, the model does not account for artesian pressure in the aquifer. under 3-dimensional management as implemented by the figure 2. guadalupe county property tracts superimposed on carrizo aquifer saturated sands depth. source: guadalupe county groundwater conservation district. texas water journal, volume 7, number 1 implementing three-dimensional groundwater management 76 then calculated the total volume of the saturated section under its jurisdiction by summing up the saturated volume total of all properties and assigned each individual property owner a percentage of the total. subsequently, the district determined its total annual allowed production should equal 62.5% of the carrizo aquifer’s assumed annual recharge in the district boundaries, yielding a maximum annual extraction volume of 12,600 acre-feet (62.5% x 20,000 acre-feet/year = 12,600 acre-feet/year). note: this production limit was a politically determined and therefore malleable amount that generally tracks the desired future conditions that are reviewed at least annually as a result of the district’s meetings with other members of groundwater management area 13, which spans 17 counties and multiple aquifers in south-central texas between austin and laredo.18 accordingly, from the leading edge of the saturated section under the recharge zone to the deepest, thickest sections in the confined zone, the properties gradually get more water rights per given surface area. however, once the thickness of the saturated section becomes constant moving down the dip (i.e., the sandstone beds cease to get thicker as they get deeper), the amount awarded per unit of surface area also stops increasing.19 mapping costs while each aquifer exhibits different local characteristics, a core point of the guadalupe county groundwater conservation district’s methods is that its cost is surprisingly modest and lies within the budgetary means of most texas groundwater conservation districts (table 1). digitized property maps are the most expensive component required for creating a 3-dimensional groundwater management system, but these costs have often already been borne by the local appraisal district. in the guadalupe county groundwater conservation district’s case, the local appraisal district spent approximately $100,000 to create its digital properties map but allowed the groundwater conservation district to use the property map for a nominal fee. appraisal districts across texas are increasingly moving toward digitized parcel mapping and are likely to share their assets with the local groundwater conservation district if it chooses to create a property-based saturated volume model.20 18 “groundwater management area 13,” texas water development board, http://www.twdb.texas.gov/groundwater/management_areas/gma13.asp 19 the authors note that in more complex aquifers with variable confined units and other heterogeneous structures, groundwater volume models must also account for hydraulic conductivity. 20 for an illustration of the digitization trend, see “parcel mapping,” texas tech university center for geospatial mapping, http://www.depts.ttu.edu/ geospatial/center/cadastral.html as well as “county appraisal districts maps online,” ogigov, http://www.ogigov.com/onlinemaps.html (including a indeed, if the implications of the day decision percolate further and local tax authorities began to view groundwater as a form of taxable property, local appraisal districts may become enthusiastic allies of groundwater conservation district boards who seek to map and delineate local groundwater resources.21 a hydrologist charged approximately $4,000 for creating the saturated thickness map of the carrizo aquifer in the relevant portion of guadalupe county. a mapper then charged approximately $7,000 to integrate the appraisal district property map with the aquifer thickness data and create an actual picture of saturated volume by tract. structuring the marketplace essentially free transferability of water rights is a central premise of the district’s contemporary ruleset. under this ruleset, water rights are initially tied to surface tract ownership. water rights become “producible” when they are linked to a well for which the district has authorized a production permit.22 this has resulted in setting the stage for a largely unfettered water marketplace in which every water rights owner in the district may participate. because a groundwater conservation district acting totally within the bounds of established statutes and case law can create a defined pool of fully transferrable water rights, it profoundly transforms traditional texas groundwater management. under the old regime, it was possible for a small number of landowners above the deeper, more water-laden portion of an aquifer to “lock up” nearly the entire annual permitted productive capacity of the aquifer in a particular district—akin to what transpired in gonzales county and motivated the guadalupe county groundwater conservation district to adopt its novel approach. under the guadalupe county groundwater large number of rural texas counties with substantial groundwater resources). 21 we raise this point because the texas legislature has affirmed that it “recognizes that a landowner owns the groundwater below the surface of the landowner’s land as real property.” tex. water code ann. § 36.002 (west). texas law also recognizes a severable groundwater estate. city of del rio v. clayton sam colt hamilton trust, 269 s.w.3d 613, 617 (tex. app.—san antonio 2008) (“the trust was entitled to sever the groundwater from the surface estate by reservation when it conveyed the surface estate to the city of del rio.”). in turn, if the groundwater is “real property” and can be treated as a severable estate and the texas constitution and/or legislature makes no exemption, then it is very likely subject to taxation. see for instance, city of beaumont v. fertitta, 415 s.w.2d 902, 912 (tex. 1967) (“our constitution requires all private property to be taxed except that which must be specifically exempt by the constitution and that which the legislature may or may not exempt.”). see also matagorda county appraisal dist. v. coastal liquids partners, l.p., 165 s.w.3d 329, 332 (tex. 2005) (severable real property estates can be taxed separately even though all are part of the same surface tract.) 22 the district rules, 5.3, provide a detailed explanation of the permitting requirements and process for issuing a production permit. http://www.twdb.texas.gov/groundwater/management_areas/gma13.asp http://www.depts.ttu.edu/geospatial/center/cadastral.html http://www.depts.ttu.edu/geospatial/center/cadastral.html http://www.ogigov.com/onlinemaps.html texas water journal, volume 7, number 1 77implementing three-dimensional groundwater management conservation district system, the only way the district can hit its annual production limit is for every property owner over the saturated section of the aquifer in the district to participate in the marketplace. the system offers 2 distinct benefits for more effective resource management. first, the system has high local legitimacy because it was developed by directors elected by district landowners. second, it fosters preservation of the district’s water resources because water rights unsold become water preserved—at least until the price of water climbs sufficiently to induce reluctant sellers to enter the market. the 3-dimensional management system does not place the entire volume of water contained in the regulated portion of the carrizo aquifer up for sale. rather, the volume that could potentially be traded cannot exceed the annual recharge-based production cap imposed by the guadalupe county groundwater conservation district board. the district builds flexibility into its management regime, acknowledging that demographic and climate conditions can be volatile and require rapid adjustment. for instance, the district rules mandate that the district shall regularly update its calculations of the approximate volume of saturated carrizo sands under its jurisdiction. along with updating its calculations to reflect potentially shifting conditions, the district must also “continually adjust” the total amount of water that may be annually withdrawn from the carrizo aquifer within the district (“the annual production cap”).23 23 district rules, 5.4(d) district’s legal authority to reform its groundwater management rules guadalupe county groundwater conservation district stands on firm legal footing as it develops and enforces its market-based groundwater management system. groundwater conservation districts are the texas legislature’s preferred groundwater management tool and are vested with strong legal powers to achieve this policy goal. article xvi, section 59 of the texas constitution says “the preservation and conservation of all such natural resources of the state are each and all hereby declared public rights and duties; and the legislature shall pass all such laws as may be appropriate thereto.” such language suggests that the texas legislature has chosen to delegate a meaningful degree of its state police powers on groundwater issues to local groundwater conservation districts, subject to the provisions set forth in section 36 of the texas groundwater code. this conferral of authority is important because the u.s. supreme court has repeatedly upheld states’ ability to exert their regulatory police powers “to prevent waste and to protect the ‘coequal rights’ of the several owners of a common source of supply.”24 the history of texas groundwater conservation districts reflects a delicate dance between the need for regulatory power and the reality that rural interests viewed groundwater as real property even before the legislature and supreme court classi24 see, for instance: ohio oil co. v. indiana, 177 u.s. 190; lindsley v. natural carbonic gas co., 220 u.s. 61; walls v. midland carbon co., 254 u.s. 300; bandini petroleum co. v. superior court, 284 u.s. 8; champlin refining co. v. corporation commission, 286 u.s. 210; hunter co. v. mchugh, 320 u.s. 222; republic gas co. v. oklahoma, 334 u.s. 62 (1948). task provider estimated cost notes mapping property tracts in the groundwater conservation district local appraisal district $100,000 cost likely to have already been borne by the county and/or local appraisal district creating the saturated thickness dataset for the local aquifer(s) in question hydrologist $4,000 to $15,000 integrating the datasets to create a saturated volume model gis specialist $7,000 to $15,000 miscellaneous administrative costs, meetings, etc. groundwater conservation district board members $3,000 total cost (high case) $133,000 total cost (most likely case) $14,000 to $20,000 table 1: key tasks and their cost. texas water journal, volume 7, number 1 implementing three-dimensional groundwater management 78 fied it as such, and were less than enthused by any central interference. the legislature passed the groundwater district act of 1949 to authorize the creation of underground water conservation districts for the purpose of “conservation, preservation, protection, and recharging and the prevention of waste of the underground water of an underground water reservoir or subdivision thereof.”25 the act permitted creation of districts with the power to: • make and enforce regulations for the conservation and recharging of underground water reservoirs; • make and enforce rules against “waste” of underground water, as “waste” is defined in the act; • issue permits for the drilling of wells within the reservoir; • impose spacing rules and prorating withdrawals; • require reports on the drilling, equipping, and completion of wells; • acquire lands for the purpose of carrying on recharging operations; • make surveys and plans and carry on research relative to groundwater; • enforce, by injunction or other appropriate process, the duly adopted regulations of the district.26 the act expressly recognized the landowners’ “ownership and rights” in groundwater under their tracts.27 moreover, the language of the groundwater conservation district act of 1949 influenced senate bill 1, a landmark water bill passed in 1997, which amended chapter 36 of the texas water code to say groundwater conservation districts “are the state’s preferred method of groundwater management.”28 senate bill 1’s explicit endorsement of groundwater conservation districts opened the door to a period of rapid groundwater conservation district formation. indeed, while the first 38 texas groundwater conservation districts were formed between 1951 and 1996, 60 districts came into existence between 1997 and 2012. the legislature’s approach to groundwater conservation districts draws upon a strong historical preference among the texas electorate for local control, shown in other areas such as school boards. particularly in the texas panhandle, where the ogallala aquifer dominates supply, users elected to organize into local groundwater conservation districts because they feared that if they did not, harsher regulations would be imposed on them by the state of texas or other political entities 25 edward p. woodruff, jr. and james peter williams, jr., the texas groundwater district act of 1949: analysis and criticism, 30 tex. l. rev. 862 (1952). 26 id. 27 id. at 867. 28 amendments to texas water code § 421, available at http://www.legis. state.tx.us/tlodocs/75r/billtext/html/sb00001f.htm that, from a local perspective, were “outsiders.”29 clearly delineating groundwater resources and making them freely transferrable within groundwater conservation district boundaries introduces healthy transparency to the management system and de-fangs many potential lawsuits. to date, litigation between groundwater conservation districts and water owners has primarily focused on projects seeking to export groundwater beyond district boundaries, with some disputes centering on tract size relative to volumes pumped and some focused on takings claims by landowners within the districts. guadalupe county groundwater conservation district’s approach likely blunts both approaches. a 3-dimensional management system built upon a defined pool of rights applying to all water owners can dramatically reduce the risk that a groundwater conservation district will be accused of favoring 1 set of water users over another. creating a pool of water volumes that owners can then trade freely reduces the administrative burden on groundwater conservation districts by devolving decisions to the players on the field (the water owners). it also lessens the need for a rules committee to draft new regulations each time the game evolves, since traded markets tend to be adaptable to varying conditions. in a market system, the owners’ economic self-interest, not administrative decree, allocates water. as such, a district using this system is in many ways protected from having to continually exercise administrative discretion and the risk of incurring lawsuits from exercising that discretion. even before the day decision affirmed landowners’ absolute right to water under their tracts, the texas supreme court already had decided a case that highlighted the litigation risks a decree-based philosophy of groundwater conservation district operations can create. guitar holding, decided in 2008 by the texas supreme court, involved a ranch located approximately 100 miles east of el paso in hudspeth county that sought to drill 52 new water wells and obtain a permit to transfer water out of the groundwater conservation district.30 the groundwater conservation district linked its transfer permits to validation permits that favored historical or existing uses of groundwater within the district, most of which consisted of irrigation. guitar argued that by doing this, the groundwater conservation district effectively granted farmers with existing or historical irrigation a preferential right to convert their irrigation 29 mark somma, local autonomy and groundwater district formation, 24 publius: the journal of federalism 53 (spring 1994). such fears of influence by outsiders or a higher political power are a recurrent theme in texas water governance. indeed, the edwards aquifer authority act was created in response to the federal government’s threat to bring the management of the aquifer under its control if the state of texas failed to act. to forestall federalization of the edwards aquifer, the state legislature promptly passed the act in 1993. 30 id. at 915-916. http://www.legis.state.tx.us/tlodocs/75r/billtext/html/sb00001f.htm http://www.legis.state.tx.us/tlodocs/75r/billtext/html/sb00001f.htm texas water journal, volume 7, number 1 79implementing three-dimensional groundwater management wells to export wells without facing more restrictive conditions applied to non-irrigator water owners such as guitar. the texas supreme court agreed with guitar, noting that because the limitations were not uniformly applied to various water owners’ applications to export water and were not necessary to protect existing uses, the district’s transfer rules exceeded its statutory authority and were thus invalid.31 a guadalupe county groundwater conservation districtstyle groundwater management system also protects the interests of local water owners if a large exporter wishes to develop water resources in a groundwater conservation district. one legally important way that it does so is by affirming water owners’ property rights in an aquifer system in the district. to have standing, owners likely no longer need to be directly within the “area of influence” that an export-oriented well field would exert. rather, the simple act of owning a quantifiable, marketable portion of a target aquifer layer in the district would very likely be sufficient. ownership of defined water rights based on a saturated sand volume model also has important implications for district boards. as the law stands, groundwater conservation districts cannot explicitly prohibit the export of groundwater.32 yet groundwater conservation districts can impose export fees that, in many cases, rise high enough to inhibit project development and can restrict exports based on aquifer depletion and other factors outlined in chapter 36 of the texas water code.33 notwithstanding the water code, district members can ultimately vote in directors who are willing to implement export-friendly rulesets. this could become a trend if more groundwater conservation districts adopt the guadalupe county approach and its comprehensive distribution of economic rights in the groundwater layers in question. unless the texas legislature revises the water code to rescind groundwater conservation districts’ authority to control extra-district transfers, which would seem a reasonable next step, given that the extracted asset is private property, the decision to allow freer exports will be a district-by-district determination marked by politics and, potentially, significant litigation. in meyer v. lost pines groundwater conservation district, no. 29,696 (in the 21st district court, bastrop county, texas, filed 31 id. at 918. 32 “(o) a district shall adopt rules as necessary to implement this section but may not adopt rules expressly prohibiting the export of groundwater.” tex. water code ann. § 36.122 (west) 33 “(f ) in reviewing a proposed transfer of groundwater out of the district, the district shall consider:(1) the availability of water in the district and in the proposed receiving area during the period for which the water supply is requested;(2) the projected effect of the proposed transfer on aquifer conditions, depletion, subsidence, or effects on existing permit holders or other groundwater users within the district; and(3) the approved regional water plan and approved district management plan.” tex. water code ann. § 36.122 (west) nov. 7, 2014), a group of landowners who owned groundwater in the simsboro aquifer claimed they would be adversely affected by the proposed actions of an investment partnership that sought to drill 14 wells and pump 56,000 acre-feet of water annually.34 the state office of administrative hearings judge denied the plaintiffs claim for standing in a september 2015 decision, saying they had failed to demonstrate a “particularized interest” that was “distinct from that sustained by the public at large.”35 in a district managed like the guadalupe county groundwater conservation district, the legal issues would shift significantly, and most likely, in the landowners’ favor. rather than needing to demonstrate in court that the proposed withdrawal project would severely impair their own access to water, the water owners could instead seek compensation for their respective defined shares of the water resource as it is drawn down over time. in this respect, the information transparency provided by the saturated volume model helps increase regulatory and legal predictability while defusing potentially protracted and expensive courtroom fights. market-based groundwater conservation district management can help reduce litigation costs litigation poses a significant financial burden for most groundwater conservation districts. under section 36.066 of the texas water code, a groundwater conservation district can seek fees and costs only if it prevails in court.36 thus, if a groundwater conservation district loses, it must pay its own costs, which would be financially disastrous for many districts. for instance, the hudspeth county underground water conservation district mentioned above incurred nearly $75,000 in attorney fees and expert costs in litigating the district court and court of appeals stages of the guitar holding case. many groundwater conservation districts only allot a fraction of this amount annually for legal bills, meaning that the high cost of litigation may either: (1) force them to consider whether it is worth suing at all or (2), if they do become embroiled in litigation, they may be forced to burden local water users with significant increases in taxes and/or fees to offset the litigation costs. such actions would likely spark significant backlash, especially since local users may often be adverse parties in groundwater conservation district-related litigation. as the above post-day cases show, a groundwater conservation district may be subject to a lawsuit by neighboring landowners if it grants an application or may be subject to a lawsuit by the 34 plaintiffs’ petition for judicial review, 3-4. 35 docket no. 952-13-5210. alj michael o’malley; s. tex water auth. v. lomas, 223 s.w.3d 304, 307 (tex. 2007). 36 texas water code, http://www.statutes.legis.state.tx.us/docs/wa/pdf/ wa.36.pdf http://www.statutes.legis.state.tx.us/docs/wa/pdf/wa.36.pdf http://www.statutes.legis.state.tx.us/docs/wa/pdf/wa.36.pdf texas water journal, volume 7, number 1 implementing three-dimensional groundwater management 80 applicant if it denies the application in whole or in part. adopting a guadalupe county groundwater conservation district approach by defining the district’s resources, allocating them based on saturated volume, and managing them with a liberally traded market helps immunize groundwater conservation districts against many of the potential legal claims demonstrated above. marketization is thus not only a preferable management tool for the water resources but also a way to manage more effectively a groundwater conservation district’s legal risk. a $20,000 to $25,000 upfront investment in mapping and marketization can potentially pre-empt hundreds of thousands of dollars in future legal bills. now that the guadalupe county groundwater conservation district has operated with its new ruleset for more than a decade, it appears that the 3-dimensional groundwater management concept functions well in practice. the rules are inherently forward-looking but must also protect preexisting uses and commitments of water resources under the district’s jurisdiction. the guadalupe county groundwater conservation district recognizes “historic use” permits that are not immediately subject to the district’s new ruleset. 37 however, such rights are only protected until january 1, 2025.38 after that date, all water producers must possess a production permit obtained from the district for any water produced. in order to obtain such a permit, the producer must submit a sufficient amount of attached water rights. the district’s “historic use” water volumes have been known for more than 10 years because historic-use claims had to have been made by september 30, 2011. these claims can only be based on beneficial use of groundwater made during any consecutive 12-month period between november 6, 1978, and august 11, 2004.39 three-dimensional groundwater management increases water’s economic value the 3-dimensional groundwater management approach also opens the door to enhancing water’s economic value to property owners by allowing it to be used potentially as collateral for loans and other financial transactions. a saturated volume-based management model does 2 important things in this regard. first, it defines an actual volume of water that is available for extraction in association with a particular property tract. second, it places a much stronger “fence” than previously existed around groundwater that has not yet been pumped, which is likely to increase potential lenders’ confidence that groundwater can serve as collateral in-situ. the rule of capture 37 “section 5.9(h) of the district rules addresses historic use. 38 district rules, 5.4(h) 39 district rules, 5.9(b) undermines most potential groundwater reserve collateralization deals because a neighbor with a larger and deeper well can draw the collateral away without the lender or borrower having any practical legal recourse to halt the drawdown. reserve-backed loans are loans for which the borrower puts up collateral (in this case estimated water reserves underneath his land) and then gets a loan amount based on the present value of expected future sales. the loan process takes account of factors such as the level of reserves, expected water prices, a discount rate, assumptions for operational expenditure, capital expenditure, and any tax optimization and/or price hedging employed.40 implications for other districts the guadalupe county groundwater conservation district’s saturated volume-based rights allocation model is the first step toward creating a texas groundwater management system where water in the ground is properly valued and where owners are not incentivized to enter a “biggest pump wins” competition with their neighbors. a saturated volume modelbased 3-dimensional rights allocation system offers real potential for replication across texas’ other 99 groundwater conservation districts. a core strength of the guadalupe county groundwater conservation district’s saturated volume model is that it is highly adaptable and can be molded to fit a wide range of local conditions. such flexibility is important because each groundwater conservation district in texas faces a unique set of hydrological, economic, and demographic conditions. while to our knowledge no other groundwater conservation district has yet modernized its rules the way that the guadalupe county groundwater conservation district has, it is very likely that as awareness of the 3-dimensional management model and its benefits spreads, additional districts will adopt similar approaches. the guadalupe county groundwater conservation district has high confidence in its management system and may extend a similar management system to its wilcox aquifer layer as well. in brief, the saturated volume model operationalizes the absolute ownership rights granted by the day decision and creates a structure to which many aspects of existing texas oil and gas law can be easily applied. the practical outcome that followed ratification is that the new ruleset lays the foundations of a more robust water market, reduces takings claims and other litigation risks to the groundwater conservation district, and sets the stage for courts to apply more easily well-established oil and gas law to settle disputes. moving to a saturated volume model-based allocation of 40 reserves-based lending, sumitomo mitsui banking corporation, https://www.smbcgroup.com/emea/eu/lending/index. (last visited april 8, 2014). https://www.smbcgroup.com/emea/eu/lending/index texas water journal, volume 7, number 1 81implementing three-dimensional groundwater management water rights (also known as 3-dimensional management) using recharge rate-based withdrawal limits would help improve the balance between traditional consumption uses as well as environmental and conservation endeavors. for parts of texas on the interstate-35 corridor and further east—where higher precipitation levels generally promote more rapid recharge rates—using recharge rates to set withdrawal limits would mark a significant departure from the traditional use of desired future conditions that are predicated on mining groundwater. harmonizing rulesets between adjacent districts tapping common aquifer layers would further multiply the benefits of more broadly adopted 3-dimensional management rules. setting withdrawal rates based on recharge encourages users to find the highest and best uses they can for their water and trade based on their respective comparative advantages. such activity generally puts a price on water that better reflects its underlying value and fosters conservation by inducing high-volume, low-value users to reduce use and free up water for sale into sectors that add greater economic value per unit of water consumed. water owners could also potentially “rent” their water to conservation interests seeking to incentivize lower water use. furthermore, a hydrological equivalent of “cap and trade” would pave the way for the emergence of greater groundwater asset collateralization and freer trading of water rights. rural groundwater owners could finally begin cementing their property rights and maximizing their property value in preparation for interactions with thirsty cities seeking groundwater supplies. the new 3-dimensional management system helps balance private property rights and the public interest in secure water supplies and conservation in a much more equitable and transparent manner and deserves serious consideration by all texas groundwater conservation districts. to protect texas water resources for future generations and avoid a california-style water crisis, a new approach is badly needed, and the 3-dimensional model marks a significant step toward a more adaptable and effective water resource governance system. a literature review: developing an information feedback interface to encourage water conservation behavior among utility customers texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 7 number 1 2016 texas water journal http://texaswaterjournal.org volume 7, number 1 2016 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university kevin l. wagner, ph.d. texas water resources institute ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources staff editor kristina j. trevino, ph.d. cover photo: lake austin dam on the colorado river, june 15, 1935. photo co8484, austin history center, austin public library. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 7, number 1, pages 40–55 abstract: water conservation behavior among water utility customers can be encouraged by engaging and educating customers about their consumption habits. to be successful, the information used to engage and educate must (1) be comprehensive, including both broad and narrow information, so that individuals understand where they fit into water management and how their actions impact water management and their community, and (2) help them make decisions about their use. this article is a literature review of elements that can be incorporated into a customer-friendly information feedback interface. some elements discussed are billing features, information about the water cycle, and local water sources, and local partnerships. the use of data is also addressed, and to that end, benefits of advanced metering infrastructure systems are mentioned. the details of these systems are not addressed. the intent of this research is to provide types and styles of information that can be combined to create an effective and meaningful information feedback system for water utility customers to encourage conservation. keywords: information customer feedback, water conservation interface chelsea a.j. hawkins1,3, t. allen berthold2 a literature review: developing an information feedback interface to encourage water conservation behavior among utility customers 1 program planner, alliance for water efficiency 2research scientist, texas water resources institute, college station, texas 77843 3the research presented here is not associated with any research currently being conducted by the alliance for water efficiency, nor is it necessarily reflective of any opinions held by the organization, its members, or associates. texas water journal, volume 7, number 1 citation: hawkins caj, berthold ta. 2016. a literature review: developing an information feedback interface to encourage water conservation behavior among utility customers. texas water journal. 7(1):40-55. available from: https://doi.org/10.21423/twj.v7i1.7029. © 2016 chelsea a.j. hawkins, t. allen berthold. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v7i1.7029 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 7, number 1 developing an information feedback interface to encourage water conservation behavior41 introduction providing customers meaningful water use information can encourage conservation behavior and can help customers become more educated about their consumption habits and the impacts of these habits (aitken 1994). to be successful, the information used to engage and educate customers should (1) be broad and comprehensive so that individual customers understand where they fit into water management and how their actions impact water management and their community, and (2) help them make decisions about their use. this article is a literature review of elements that can be incorporated to create a customer-friendly information feedback interface. some elements discussed are billing features, information about the water cycle and local water sources, and local partnerships. the use of data is also addressed, and to that end, benefits of advanced metering infrastructure (ami) systems are mentioned in conjunction with data feedback and in other ways, though the details of ami systems are not addressed. although these and other elements are discussed, this literature review aims only to provide types and styles of information that be combined to create an effective and meaningful information feedback system for water utility customers that will encourage conservation. this research does not propose that every element is required for success. ultimately, utility managers interested in a feedback system should rely on their sense of what will resonate with their customer base in selecting elements. the mechanism for sharing data and information is generally through an interface such as a unique webpage, landing pages for billing for each customer, and applications or other features for cell phones.1 this review sets out types of information and features that are most useful in the interface for the target purpose of changing consumptive behavior. the interface elements discussed here may be mixed and matched to develop an impactful interface. appendix a offers some examples of 1 see appendix a for images of a currently used interface. elements and features that may be included in an interface; however, there are more elements that may be included. a customer base, utility needs, and the service area should be profiled thoroughly before developing an interface in order to ensure its success. elements of interfaces marketing campaigns in 2001, the united kingdom’s environment agency and the thames water company conducted a £73,000 ($113,668 usd) joint research project evaluating “the effectiveness of marketing campaigns in achieving water efficiency savings” (howarth et al. 2004). the project’s primary goal was to assess the effectiveness of a water efficiency campaign on 8,000 residences in a specific area (howarth et al. 2004). the research was conducted for just over 1 month (howarth et al. 2004). the research project used newspaper and radio advertisements and sent mailers to the homes in the target area (howarth et al. 2004). after the campaign, a survey was conducted to assess the extent of the campaign message’s reach. responses to the survey questions showed that only 5% of the residents noticed any of the campaign communications, even though 25% of residents claimed to read the newspaper and/or listen to the radio (howarth et al. 2004). overall, the results indicated that the campaign had no impact on decreasing water use among residences. the research also noted case studies in phoenix, arizona; copenhagen, denmark; and singapore, in which broad media campaigns did little to impact water consumption behavior (collins et al. 2003). ultimately, the 2001 study concluded that while an important first step in changing behavior, communication alone, through media or literature, does not have meaningful impact on water conservation behaviors (howarth et al. 2004). however, the silva 2010 study that assessed media campaigns conducted over longer periods of time and with a consistent short name or acronym descriptive name ami advanced metering infrastructure epa u.s. environmental protection agency jea jacksonville electric authority saws san antonio water system terms used in paper texas water journal, volume 7, number 1 42developing an information feedback interface to encourage water conservation behavior message had more promising, although inconclusive, results (silva et al. 2010). the silva 2010 study reviewed tempe, arizona’s cooperative media program called water – use it wisely. the program has been in place since the early 1990s and includes messages from 20 other water providers in the same region. social media, along with standard media (tv, radio, etc.), was most heavily used in drought conditions, based on the conservation department’s belief that “the media is our best avenue for getting information to the public.” (silva et al. 2010). surveys from the silva 2010 study reflect that 75% of respondents were familiar with tempe’s main water conservation slogan and had seen it more than 10 times.2 overall, the report found that some of tempe’s media approaches were statistically significant in influencing water conservation, though the study made no projections as to how much water was saved by the media efforts alone (silva et al. 2010). another subject in the silva 2010 study is the jacksonville electric authority (jea)3 in jacksonville, florida, which has an on-going media campaign that includes tv sponsorships, public service announcements, print, and radio. using a survey, the study found that more than 80% of respondents were familiar with 1 of jea’s primary conservation messages, but again there was no quantitative information about the impact of the media campaign on volume of water saved.4 examples from durham, north carolina, and orange, florida, yielded the same results.5 a study of phoenix, arizona, for the same silva report found a decrease in water consumption and an increase in customers self-reporting their conservation activity from the period of 1996–2007, but could not establish whether the decrease had a direct relationship to a media and messaging program that occurred during the same time frame.6 the same was found for a study of seattle, washington. 7 at the time of this review, the authors could not find any publicly available or peer-reviewed data that shows the correlation between a media campaign in isolation and volumes of water saved. this point is made only to emphasize the need for a feedback interface that is more than just the arm of a media campaign. it is not made to undermine the role or value of a serious media campaign. (media campaigns on their own serve a very distinct and critical purpose.) as the above case studies indicate, a sustained media campaign becomes recognizable to the public and is an important step in changing behavior due to its raising awareness (silva et al. 2010), and is 2 the total number of customers surveyed was not stated. 3 jea is responsible for electric, water, and sewer services. 4 the total number of customers surveyed was not stated. 5 the total number of customers surveyed was not stated. 6 the total number of customers surveyed was not stated. 7 the total number of customers surveyed was not stated. necessary to on-going efforts in calling attention to the importance of water conservation. moreover, media campaigns may become increasingly impactful as more avenues for communication with customers emerge. for example, social media outlets are the latest opportunity for utilities to communicate conservation messages. a recent study that surveyed texans across all age ranges shows that 51% of respondents have a facebook account and 17% have a twitter account (baselice 2015). for these reasons, incorporating a media campaign, with links to social media platforms, into a feedback interface is still strategically important. additionally, a critical relationship can exist between a media campaign and an effective interface, as media campaigns can help develop awareness among a customer base that, in turn, helps create customers that would actually use a feedback interface. therefore, media campaigns and media messaging should be carried out in conjunction with other information feedback options, all of which can be incorporated into a singular feedback interface.8 water and natural cycles actively engaging customers so they develop both an interest and understanding regarding hydrological, seasonal, and climactic cycles; local water sources; and the necessity of conservation are the most important parts of changing behaviors to promote conservation (united nations 2002; hassel et al. 2007). feedback data available to customers is often specific to their location, and their use can have the effect of undermining the need to conserve. additionally, many people do not know what their local water source(s) is/are (the nature conservancy 2011). in fact, a survey conducted in texas revealed that in 2014 only 28% of those surveyed were confident they knew where their water came from; this was the same percentage achieved in the same survey when it was conducted in 2004 (baselice 2015). failing to illustrate how the water cycle works or to educate customers about the source of their water is a missed opportunity to emphasize the need to conserve. this oversight is significant because a lack of understanding of natural cycles and the interaction between natural water cycles and infrastructure creates a significant hurdle in successfully promoting conservation efforts (department of sustainability and environment 2005). in fact, the market research conducted after a 2001 study and survey suggested that customer response to a conservation project was poor because water-related matters ranked 8 incorporation of various forms of feedback into a singular interface is important in creating an effective interface. however, this literature review does not suggest that the interface should be the only way to interact with customers. texas water journal, volume 7, number 1 developing an information feedback interface to encourage water conservation behavior43 lowest of all environmental concerns held by the public. furthermore, feelings of insignificance about independent actions contributed to non-action (howarth et al. 2004). this attitude is common, especially in water-rich areas of the world. however, importantly another study found that “participants who understood the environmental impact of their water consumption were much more motivated than others to reduce their water consumption and saved as much as 23% relative to normal levels” (jeong 2014). it can be inferred from these 2 studies that an increase in knowledge and awareness of water issues could have a positive impact on willingness to conserve and support of conservation efforts. in roseville, california, the water department had a difficult time getting residents to conserve water. the historical abundance of water in the area dampened awareness efforts, and most customers were unaware of their own consumptive habits and the impact of those habits to their community (west governor’s drought forum 2015). however, the record-breaking drought in california in recent years reduced the community’s water supply drastically, compelling the water utility to implement a customer education plan quickly in order to force the issue of awareness as a means to reduce residential water consumption. the water department implemented a feedback interface that allowed it to push highly customized and tailored information to its customers (west governor’s drought forum 2015). the information used by roseville in its interface emphasized the dynamics between how the change in climate conditions and other factors were impacting the amount of available water and, in turn, impacting the cost of water supply in the future (west governor’s drought forum 2015). the interface also included future projections of water supply and the likelihood of drought; these proved to be powerful motivators9 for water conservation activities among roseville’s customer base10 (west governor’s drought forum 2015). getting customers to understand the cost associated with supplying water as it relates to natural systems is a major challenge, but roseville found that drought and the threat of drought are very strong motivators relating to natural cycles and systems (west governor’s drought forum 2015). partnerships demonstrating partnerships with relevant and well-respected organizations in customer feedback information can be effective because it signifies third-party independent approval with a utility’s promotion of conservation (hassel 9 this type of information was also found to be motivating in the silva 2010 study. 10 additionally, this information can also relate to the expenses of supplying of water as reduced supply can increase the cost to the customer. 2007). demonstration of a partnership could be as minor as a logo appearing on an interface or as major as a public endorsement or the development of a jointly promoted conservation program. such an announcement could be included in the interface, as could an advertisement for a partnership event. organizations that seem to lend the most credibility are niche organizations, specialty institutes, and governmental authorities. some examples of these types of partnerships are: • the san antonio water system (saws) and master naturalists and/or master gardeners. saws and these organizations have a successful history of promoting native landscapes, diy efforts, and a deeper understanding of water issues in south central texas. they garner more public engagement and reinforce the idea that the community must work together to conserve. • the texas water resources institute is working with the cities of round rock and arlington, texas, to develop a customer interface that helps both utilities and customers understand volumetric usage and communicate conservation messages (kalisek 2015). • dc water partnered with the u.s. environmental protection agency (epa) to promote its watersense program and encourage the replacement of high use fixtures as well as other conservation behavior (dc water authority 2016). because of the epa’s strong base in the capital city, this program resonates strongly with the residents of washington d.c. and encourages changes in fixtures since the message to change is coming from the highest environmental governing body in the country. these kinds of joint efforts should be touted on an interface. billing features customers appreciate direct access to billing and use information (moore et al. 2008; national energy technology laboratory 2008). largely, with enough data included in the interface in easy-to-understand formats, customers can answer their own questions and spot problems that may be affecting their bill (national energy technology laboratory 2008). additional features, such as prepayment programs and select time of month billing, provide flexibility to the customer (national energy technology laboratory 2008). many of these billing features can be included in an interface. the silva 2010 survey reflected that only 64% of customers tracked their usage over time from their water bill (silva et al. 2010). however, many customers said that bill tracking would be useful if there was an easier way to do it (silva et al. 2010). including a tool in the interface that helps customers manage and track their billing information would be a great way to encourage awareness and, in turn, conservation behavtexas water journal, volume 7, number 1 44developing an information feedback interface to encourage water conservation behavior ior. adding interactive elements to the interface also increases the likelihood of continued use of the interface. one way to allow for tracking is to include a graphic feature that will track both billing and use over time simultaneously. another option might be comparison displays of billing and use for periods of time the customer can select. allowing them some control over what they view may interest them more than just reviewing a chart. incorporating a bill pay option in the interface that would provide graphical or informational displays adjacent to the actual amount owed would also be a welcome addition. though this is sometimes a challenge because of utility billing systems, it is an important consideration because it reinforces the connection between volumetric use and billing and would force customers to see their use when paying their bill. one challenge with billing in general is a tendency for customers to set up automatic bill payments so that they are not obligated to even look at their bill or consumption if they do not want to. however, there may be some creative work-arounds. for example, a utility might elect to send an email notification to customers informing them that their bill is ready but without stating the amount up front. instead, to find out the billed amount and volumetric use, the customer may have to check the interface. of course customers with relatively steady bills may be less inclined, but many people want to know what they are paying and what they are paying for. another option may be providing a discount or credit for every month they review the data or answer a question through their interface. related programs including a pre-developed campaign or program within the interface (such as texas’ water iq or the seattle 1% program) helps to maximize information sharing with interface users (silva et al. 2010). this allows a utility to send specific messages or establish priorities among its customer base (silva et al. 2010). for example, if the utility is focusing its efforts on outdoor water use, the interface could be a place to explain why outdoor water use is important and to tie in links for native landscapes, landscape workshops, irrigator licensing programs, or applications for rebates and information for other incentive programs. including this variety of relevant information also helps the customer to view the interface as a well-rounded resource, which is important since in some communities many customers do not view their utility website or utility emails as a worthwhile resource (silva et al. 2010). the silva 2010 study made this finding but did not provide any suppositions as to the reasons for this. it may be because customers find the information to be too broad to be useful to them individually. it may also be because of uncertainty as to the origins of the information and therefore its usefulness (for example, if it is a press release it may have outdated or inaccurate data), or it may simply be that the customers do not have the time to read the email or visit the website and would prefer a more succinct presentation of information. new technology advertising new products or upgrades to commonly used products and services is another great way to promote water conservation (deni greene consulting services 1996; hassel et al. 2007). of course, utilities cannot tell customers which appliances or fixtures to buy or exactly when they should, but there is an opportunity to promote the benefits of water efficient fixtures and appliances. most importantly, this is one of the easiest ways to help a customer make a decision that will leave them feeling vested in water conservation. for example, they can learn whether it is time to replace a low efficiency washing machine and how it will benefit them and their community. in making this purchase, they are now participants in conserving water in their community. promotion of the epa’s watersense program would be useful here or similar product reviews and reports that most customers do not have the time or interest to find on their own. moreover, those customers who do will certainly appreciate the resource. dynamism utilities are chronically trying to keep up with their customer base by developing rapport, engaging them, and keeping up with the service area demographics and customer needs and concerns. developing information fields in which customers can send direct emails to their billing departments or conservation staff from the billing portion of their interface can help create a sense of more personalized service and recognition. in addition, depending on the format of the fields, there is potential to capture common questions and problems with bills or other information in the interface and get ahead of them, i.e. find patterns of concern among the customer base and head them off. a related tool might survey what household appliances customers have. if a customer indicates they have an older washing machine, then a pop-up message connecting them to rebates or incentives could encourage them to make a change. information on how much of their water bill is associated with the older washing machine might also be useful, though it requires additional questions such as how frequently they wash their clothes and possibly some back-end calculations the interface must be set up to perform. similarly, tools that may help customers determine information such as the appropriate amount of water use for their household size could include fields that capture housetexas water journal, volume 7, number 1 developing an information feedback interface to encourage water conservation behavior45 hold demographics, water features (pools, fountains), and square footage. adding inputs to the interface to account for demographic elements such as the number of people in the household, the number of bathrooms (specifically the number of toilets), and whether there is an irrigation system present in the home may help customers understand their consumptive habits and identify areas of improvement (mckenzie-mohr et al. 1999; faruqui et al. 2010; silva et al. 2010). dynamic features such as these require a mutually beneficial exchange of data but are ideal for managing customer needs and expectations, and for planning. with household demographic information, utilities can start to develop a sense of how much water children versus adults use or how transient the service area is. another way to capture this kind of information for utility use only might be a local water census issued every few years by the utility in exchange for billing discounts or other financial incentives (though it is always best to develop a tool that the customer benefits from as well because participation occurs more easily). using consumption data uses consumption data can be used in 2 ways (though sometimes it can serve both purposes): 1) to enable the customer to make data-driven use decisions and 2) to enable the utility to make data-driven management decisions. either way, the availability of individualized consumption data has been linked to a reduction in use. this was the case in the sacramento county water agency where 2 water conservation programs were proven effective, but where the data logger program resulted in greater water conservation (tom et al. 2011). this difference in results was attributed to the data logger program providing more detailed information about customer use, thereby enabling the customer to make more educated decisions about their use (tom 2011). notably, success with data feedback in particular comes from the data being relatable and easy to navigate and interpret. another example is roseville, california, which experienced a 4.6% reduction in water use. this reduction was largely attributed to a combination of the municipal utility being able to drill down to single-customer use patterns and then using that information to focus on broad education efforts for its 36,000 customers, and tailoring information for the 18,000 residents receiving home water reports and information about their consumptive habits (west governor’s drought forum 2015). although 4.6% seems low, it is a strong beginning for the utility as it continues to refine its interface. efficacy much like media campaigns, the exact efficacy of data sharing as it relates to volumetric savings is unknown. additionally, research has not yet identified the exact amounts of data required to trigger water conservation behavior. however, 1 energy conservation study did find a connection between ami data feedback and a reduction in energy use (faruqui et al. 2010). although energy and water utilities are very different, water managers can benefit from the research conducted by the energy industry since similar challenges and technologies exist. also, at least 1 water utility is studying the same connection (faruqui et al. 2010). the energy study conducted in 2010 by ahmad faruqui reviewed how direct feedback of real-time information influenced energy consumption (faruqui et al. 2010). faruqui specifically explored energy saving behaviors and customer attitudes about the direct feedback of information provided to them (faruqui et al. 2010). the feedback instrument for all of the subject studies was an in-home display device. these devices are roughly the size of a residential thermostat screen, and are registered to a smart meter and can be placed virtually anywhere in the home. depending on the make and model, the in-home display devices can perform functions such as showing real-time energy use, day-to-day comparisons of energy use, use trends over time, and in some cases, they can be used to pinpoint what rooms or appliances in the home use the most energy. the study concluded that consumers who actively engaged with the feedback interface reduced their energy consumption by 7%, on average (faruqui et al. 2010). where time-of-use rates were used, the presence of rates and what customers will pay based on real-time data caused a reduction in energy consumption (faruqui et al. 2010). in 2014, the water utility in duluth, minnesota, deployed ami to approximately 5,000 distinct customers in a pilot program to test its effectiveness. officials at the utility evaluated whether customers viewed the ami-enhanced consumption information and other information promoted on the interface more than they would review a standard monthly bill that was available to them online (bensch et al. 2014). the duluth study is on-going in that participants are still being monitored to ascertain any long-term trends in data views and long-term changes in behavior and consumption. interestingly, not long after the pilot study was underway, some participants in the pilot revealed that the enhanced feedback prompted them to examine their own behavior and heightened their awareness of other ways in which they waste water, such as through inefficient home appliances (bensch et al. 2014). self-reports from pilot participants showed that those already taking small measures were motivated toward more efficient behaviors and those who were simply preparing to texas water journal, volume 7, number 1 46developing an information feedback interface to encourage water conservation behavior feature by adding a notification pane in the interface through which it could more directly reach customers with consumptive use information and notifications of customer-side leaks (west governor’s drought forum 2015). in some cases the leak detection feature not only lets the customer know there may be a problem but also the type of leak based on volume and other factors. these efforts in park city seem to have gotten customers more interested in their water use habits and supportive of the system; the overall response to this feature was very positive after all of the related concerns were resolved (west governor’s drought forum 2015). reminders and prompts one of the most useful determinations made from the 2010 duluth study was that continuous engagement with a feedback interface is critical because even those customers genuinely interested in reducing their consumption may need reminders and prompts to encourage continuous engagement with the interface (bensch et al. 2014). reminders and prompts help guide people to the correct course of action (mckenzie-mohr et al. 1999; silva et al. 2010). frequently, customers will learn of useful information and develop an intention to take action, but over time they forget or lose motivation (bensch et al. 2014). including a prompt or reminder feature in the interface can help customers maintain motivation and eventually take action where they otherwise would not (bensch et al. 2014). for example, a customer could log in to the interface and become interested in an incentive program. while the customer might not be able to take immediate action, they can request an email reminder to be sent in the future, set a reminder the next time they log on to the interface, or download information into their calendar system (likely outlook, ical or google calendar). similarly, customers interested in rebate programs for high-efficiency washing machines may set a notice to remind them of a deadline if they are not purchasing the washing machine immediately. another example might be a push notification to email or a notice when the customer signs into the interface letting them know they are close to meeting a pre-set billing goal. a utility in duluth, minnesota, found that frequent prompts and reminders like these examples are effective for changing behavior and are valued by the customers (bensch et al. 2014). take efficiency measures were pushed to carry out their plans (bensch et al. 2014). the direct relationship between ami data and changes in behavior is still being evaluated in this study. however, based on the responses of the participants, the data is raising awareness about personal consumption habits, an important first step in promoting conservation behavior. a note on ami data is collected in a variety of ways, but this review notices that much of the data used in feedback interfaces is derived from ami systems. if set up correctly, ami systems provide one of the most efficient methods of collecting data in a way that makes data easy to analyze. the largest benefit of an ami system is that it collects data in real-time and can collect data in increments as small as 15 minutes. this creates a rapid precision not yet experienced by data collectors. it also provides utilities an opportunity to communicate data to their customers much more quickly and accurately through a variety of interface features such as prompts and reminders, high-use alerts, leak alerts, and other types of near-instant notifications. also, many other technologies can now be connected to ami systems such as leak loggers, which help a utility discover leaks and their locations. presently, the energy industries have led the way in making changes or conversions to meter systems so data can be collected more efficiently and expeditiously. in fact, the number of these types of changes, particularly the implementation of ami systems, within the gas and electric industries is constantly increasing around the united states (federal energy regulatory commission 2014). between 2011 and 2012, some 5.9 million ami systems were installed and operated, amounting to nearly 30% of all gas and electric meters in the united states. because of the usefulness of ami systems in those industries, water utilities are increasingly considering implementing ami systems (or systems with similar features) in the model of the gas and electric industries (moore et al. 2008). although ami is not for every water utility (hawkins et al. 2015),11 the current interest renders it a worthwhile subject for review in the context of providing data for a customer interface. one benefit that highlights the speed and efficiency of ami is leak detection.12 in park city, utah, the water department invested in an ami system with leak detection features; however, after installation, some problems with the leak detection features frustrated customers. in response, the utility remedied the problems and improved on the leak detection 11 ami is not for every utility, and it is important for utilities to perform a cost-benefit analysis and consider how ami may help them and their customers before investing in it. see hawkins et al. 2015. 12 leak detection is not part of every ami system, but is increasingly common. texas water journal, volume 7, number 1 developing an information feedback interface to encourage water conservation behavior47 personal motivators self-interests or personal commitments motivate people to action and can be presented in an interface. for example: money behavioral changes are more likely to occur if incentives are offered. this is especially so with regard to water conservation; because the environment and hydrological systems are so large and complex, it is difficult to convince customers that individual actions have any significant consequences (hassel 2007). results from a 2010 survey showed that 78% of respondents said saving money was a primary reason for taking proactive measures to conserve water (silva et al. 2010). only 10% of respondents had ever participated in a utility rebate program (silva et al. 2010). a full 61% said they would have participated in a rebate program if one had been available (silva et al. 2010). since money is a major motivator, it is especially important to include incentive programs in the interface (grizzell 2003). adding incentive information, especially financial incentives such as rebates and billing discounts associated with conservation behavior, gives customers an additional reason to interact with the interface (deni greene consulting services 1996; hassel et al. 2007). for example, using the interface as another means to convey information about cash-for-grass type rebate programs is ideal since not every customer will come across that information through another route. customers may be more inclined to visit the interface if the incentives change or are rotated on a regular basis. checking in to see what benefit they may receive may keep them motivated to use the interface. additionally, if the interface also includes billing information, there may be a significant benefit in presenting rebate or discount information for conservation efforts simultaneously with the bill. pre-payment for electricity also influences energy consumption when available in conjunction with real-time use information. under pre-payment plans, customers avoid a singular large monthly bill by paying for their electric service in advance in weekly increments, or otherwise as needed (hatch 2012). generally, customers are motivated to stay within whatever energy budgets their pre-payment buys and the availability of real-time data enables them to do that; as a result, energy consumption could be reduced by 14% (faruqui et al. 2010). commitments getting customers to make personal commitments to water conservation efforts or goals makes them more likely to work toward larger commitments or goals in the future and more likely to make changes in water consumption behavior when asked (mckenzie-mohr et al. 1999; silva et al. 2010). this may even take the form of a pre-payment plan in which customers make personal commitments to use water until a certain price cap is reached. societal norms and peer pressure establishing societal norms gives customers a frame of reference and renders them more likely to change their behaviors when asked to in the future. societal norms may be established via an interface so long as a unified message is conveyed to all those who signed up for access to it (mckenzie-mohr et al. 1999; silva et al. 2010; west governor’s drought forum 2015). though only 2% of respondents in the silva et al. 2010 surveys stated that peer pressure motivated them to conserve, other studies have found peer pressure and comparison to the usage incurred by neighbors to be more effective than appealing to people’s sense of social responsibility, safe guarding the earth for the future, and even saving money (silva et al. 2010). in fact, market strategy research for energy indicates that using social norms as a motivational tool can increase household energy savings by 5.7% to 10% (ehrhardt-martinez et al. 2010). one example of imposing peer pressure is providing information that compares 1 household’s consumption to another of similar value, square footage, year built, and number of inhabitants. these kinds of comparisons may greatly influence conservation behaviors. including this comparative information is increasingly popular as more individualized data becomes available. additionally, this specific type of comparative norming has been found to be effective in getting customers to embrace conservationist behaviors, though more research is needed (hastings et al. 2015). a great example of societal norms at work is the report water waste system used by saws. through this system, customers can (and do) actively report instances of water waste. once the report is received by saws staff, an alert letter is sent to whomever is responsible for the property where the instance occurred (usually the owner or property manager) requiring that they resolve any water waste at their property.13 additionally, local police officers working in conjunction with saws may issue citations for water waste they encounter. these citations have associated fines and are referred to the municipal court system where they may be disputed. across the city, customers take water conservation very seriously, no doubt in large part because of the reporting system and the message that it sends about water use in the community. 13 sometimes staff will make phone calls to the responsible party instead of, or in addition to, an alert letter being issued. texas water journal, volume 7, number 1 48developing an information feedback interface to encourage water conservation behavior personal benefits although peer pressure and societal norms are effective, the need for individuals to believe their actions will truly have an impact is another hurdle to changing conservation behavior. for this reason, emphasizing the personal benefits of signing up for interfaces and interface notifications is useful in getting customers to return to the interface once they have signed up (u.s. department of energy 2014). for example, if leak detection notices are only offered to those who sign up for the interface service, then more people are likely to sign up since leak detection can save them money. in extremely well-equipped communities that may have separate irrigation meters for commercial and home owners association properties, irrigation-specific leak detection notices could lead to significant financial savings and could also be tied to enrollment. offering billing date options for those who enroll in the interface program may also be a way to garner interest because it may be beneficial to the customer. bill credits or discounts may also be a tool to interest people in using an interface. presenting information data the duluth study found a disparity between the information customers wanted and needed, and the information delivered by ami systems; specifically, the data presentation suffered from lack of clarity and the interface was not user-friendly (bensch et al. 2014). the participants in the duluth study said the data was the most helpful part of the pilot, but they also tended to look at the data only once because of its overwhelming presentation (bensch et al. 2014). additionally, customers reported high rates of interest in data feedback, but their interest was dwarfed by their time or/and willingness to actually engage with and make sense of the data (bensch et al. 2014). essentially, complexity of the data presentation may undermine its usefulness, particularly when utilities are seeking voluntary actions from consumers. more easily understood treatments of the data, such as comparative formats, are more useful in achieving conservation behavior and, importantly, in sustaining customer interest (bensch et al. 2014). while simplifying the data is important for customer understanding, it is also important to have staff in at least 1 department (billing, conservation, customer service) trained to knowledgeably answer questions about the bill and the meter technology. credibility information credibility is important to successfully changing consumptive behaviors. in a survey conducted among homeowners and home renters, water supply officials were considered the most credible source for water conservation information. officials with a financial interest in water conservation (e.g. plumbers, manufacturers, contractors) were seen as less credible, with the exception of landscapers and nursery owners and workers (silva et al. 2010). therefore, it may be important to enhance information in the customer feedback to reflect the perspective of water conservation officials, as opposed to the utility broadly. it may also be useful to incorporate information and suggestions from other credible sources (local leaders, respected organizations, known professionals external to the utility, etc.). cost breakdowns in an energy study, different treatments of feedback information for electricity consumption were analyzed to determine what information and what presentation of that information resulted in maximum electricity savings (karjalainen 2011). the study results indicated that customers were most responsive to cost breakdowns over time as it related to their monetary savings (karjalainen 2011). customers also found savings breakdowns concerning specific appliances or services (including brand names) very helpful in demonstrating what the value of making a change would be (karjalainen 2011). the study also indicated that: • people can interpret tables, charts, and graphs if they are well-designed; • many people are overwhelmed by highly technical information and scientific units; and • many people do not have comprehensive understanding about the electric industry (karjalainen 2011). customers most appreciated: • presentations of costs (over a period of time); • appliance-specific breakdown, i.e. information on how much each appliance consumes proportionally; and • historical comparison, i.e. comparison with a customer’s own prior consumption (karjalainen 2011). relative information people learn and analyze in different ways, which is why it is useful to present complex information in relative forms. for example, the sacramento county water agency ran 2 water conservation programs simultaneously to discern customer preferences and response rates to data feedback (tom et al. 2011). the first program was the data logger program, in which a meter-master model 100 el data logger was attached to the customer’s water meter for 1 week and provided a detailed report of water use from each fixture (tom et al. 2011). in the second program, the water wise house call program, a water efficiency staff person spent an hour with customers issuing assessments and recommendations (tom et al. 2011). in a texas water journal, volume 7, number 1 developing an information feedback interface to encourage water conservation behavior49 sample of 100 households, both programs were found to be effective14 (tom et al. 2011). in another study, 2 different treatments of feedback presentation were compared and evaluated for 4,700 residents (jeong 2014). the results of the study suggest that providing water consumption in gallons alongside water consumption in energy units required to deliver the volume in gallons led to a statistically significant reduction in water consumption, while providing water consumption only in gallons did not (jeong 2014). the authors of this study provide some speculation as to the findings. first, they suggest that energy data may be presented in simpler terms and in more familiar units than water consumption data usually is (jeong 2014). this is very possible since energy conservation is an older and more established concept in the united states. the authors also note that previous research in energy conservation demonstrated recognition of energy units and an easier time in achieving conservation by sharing data with customers (jeong 2014). second, the authors suggest that “by providing feedback at the intersection between water and energy consumption, the feedback appealed to both those individuals interested on water conservation and those interested in conserving energy” (jeong 2014). feedback frequency regarding feedback frequency, it has been found that daily or weekly feedback information generated the highest electricity savings per household at 11% to 14%, while providing real-time feedback resulted in 7% savings (ehrhardt-martinez et al. 2010). although drill-down features are likely to be of interest to the customer, it is definitely a useful presentation for utilities to analyze because they offer multiple planes on which the utility can perform an analysis of consumptive use patterns. most drill-down features present as monthly or weekly data that give the customer a sense of their use for a broad period of time. the customer can then select the data (usually by clicking or touching the icon or graph that reflects the data) to see weekly or daily information, and then again to see daily or hourly information, etc. if a drill-down feature is included because the ami system records data at small intervals, it is important to help the customer interpret the results of the drill-down feature so they are not overwhelmed or uncertain how to improve on their consumption. 14 while both programs were effective, the data logger program resulted in greater water conservation. the difference in results was attributed to the data logger program providing more information about customer use and in greater detail, thereby enabling the customer to make more educated decisions about their use (tom 2011). conclusion the silva 2010 survey reflects that many customers already believe they engage in water conservation practices (silva et al. 2010). in fact, many reported changes in their activities such as a new tendency to run the dishwasher or clothes washer only when full (silva et al. 2010). these responses suggest a high level of awareness (silva et al. 2010). utilities can and should exploit this awareness by developing customer interfaces that promote increased conservation, since providing water consumption feedback for customers has proven effective in promoting conservation (jeong 2014). in 2010, a comprehensive meta-review was conducted of 57 residential energy-feedback studies spanning 36 years and 9 countries, including the united states, canada, europe, australia, and japan (ehrhardt-martinez et al. 2010). the study found that across countries, feedback programs resulted in average savings of 4% to 12%, demonstrating that with the right presentation of information, people are willing to modify consumptive habits and other behaviors (zelezny 1999; ehrhardt-martinez et al. 2010). to be impactful, these interfaces must be robust and contain data, motivational materials, educational information, and content that can help the customer make decisions about their water use habits and become vested in conserving water in their community (syme et al. 2000; hassel et al. 2007; ehrhardt-martinez et al. 2010; faruqui et al. 2010; karjalainen 2011; silva et al. 2010). this well-rounded approach has been proven more useful and meaningful to customers than interfaces that only use certain types of information such as education-only or data-only, which are much more typical of utility communication to customers (hassel et al. 2007). the silva 2010 study supports this as it revealed that feedback mechanisms are unlikely to encourage more significant household energy savings without being accompanied by additional products and services that actually help the customer make decisions about changing their consumption habits (zelezny 1999; ehrhardt-martinez et al. 2010). examples of this comprehensive interface may be broad, such as information about conservation efforts in the customer’s home region. other examples may be more specific such as individualized consumption data, comparative information such as consumption volume of households of similar square footage and number of persons, and customizable interactive features such as pre-payment goals and do more to engage the customer (syme et al. 2000; hassel et al. 2007; faruqui et al. 2010; karjalainen 2011). this research highly encourages the development of a feedback interface. however, consideration of development costs for these interfaces is an important element in design. design and implementation expenses will vary depending on utility-specific qualities such as the scale of deployment (size of customer base), ease of deployment, likelihood of engagetexas water journal, volume 7, number 1 50developing an information feedback interface to encourage water conservation behavior ment as compared to engagement experienced under current programs, the number of features, and development partners such as private consultants versus public or research entities. as a result, the relative value of water savings compared to the cost of implementation is an important consideration, but one that is not made here. it is too variable and there are not enough case studies on these points to make any firm conclusions. utilities considering information and feedback systems are encouraged to perform these evaluations before making decisions. talking to system developers, relevant utility departments (billing, customer service, metering, conservation, etc.), and other utilities is the best way to start. talking to customers and asking what would help them or assessing what they do not know is another great first step. references aitken ck. 1994. residential water use: predicting and reducing consumption. journal of applied social psychology. 24(2):136-158. baselice m. 2015. texas statewide water conservation study. austin (texas): baselice & associates. available from texaslivingwaters.org/wp-content/uploads/2015/03/1mike-baselice.pdf. bensch i, keene a, pigg s. 2014. sgig consumer behavior study, minnesota power company. madison (wisconsin): energy center of wisconsin. available from https://www. smartgrid.gov/files/mn_power_cbp_interim_report_ final_with_march6_date.pdf. collins j, thomas g, willis r, wilsdon j. 2003. carrots, sticks and sermons: influencing public 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http://www.nature.org/newsfeatures/pressreleases/more-than-three-quarters-of-americans-dont-know-where-their-water-comes-from.xml http://www.nature.org/newsfeatures/pressreleases/more-than-three-quarters-of-americans-dont-know-where-their-water-comes-from.xml http://www.nature.org/newsfeatures/pressreleases/more-than-three-quarters-of-americans-dont-know-where-their-water-comes-from.xml http://www.waterrf.org/publicreportlibrary/4012.pdf http://energy.gov/sites/prod/files/2014/08/f18/smartgrid-systemreport2014.pdf http://energy.gov/sites/prod/files/2014/08/f18/smartgrid-systemreport2014.pdf http://westgov.org/images/images/watersmart_software.pdf http://westgov.org/images/images/watersmart_software.pdf texas water journal, volume 7, number 1 52developing an information feedback interface to encourage water conservation behavior appendix a the following images are taken from the meter study project being conducted by the texas water resources institute. the images have been used with permission to provide a visual reference for some of the elements addressed in this review. this interface is a web portal for customers to access. figure a, below, is a copy of the landing page. the chart and tabular information can change if the customer elects to drill down in a monthly data set. additionally, the data may change altogether if the customer elects to use data from an irrigation meter, or additional meters tied to the account. also, the information in the bar chart can be changed from volume to dollar amount by clicking the yellow “view cost” button at the top of the screen. figure a. layout from the landing page of the web portal. texas water journal, volume 7, number 1 developing an information feedback interface to encourage water conservation behavior53 the drill down feature lets customers go from a broad month-to-month view of their usage as shown in figure b to daily usage shown in figure c to hourly usage for a given day as shown in figure d. the customer needs only to click any bar in the bar chart to drill down to more detailed data. figure b. month by month usage for 2015 (begins in april when customer enrolled). figure c. daily usage for the month of august 2015. texas water journal, volume 7, number 1 54developing an information feedback interface to encourage water conservation behavior figure e shows an informational prompt that rotates through different messages. the information in each message connects a common activity with both waste and dollar amounts. figure d. hourly usage for august 28, 2015. figure e. informational prompt. texas water journal, volume 7, number 1 developing an information feedback interface to encourage water conservation behavior55 figure f, below, is an interactive feature that shows the customers how many gallons of water are saved based on a percentage savings of their usage. the percentages can be changed and have correlating gallon volumes based on the customer’s use. figure f. conserve! prompt. figure g, below, is a relative and comparative information item that presents use in terms of dollars and volume and simultaneously tracks the customers use information. figure h, below, is a survey prompt that collects information for the utility and makes the customer reflect on their consumptive behavior. figure h. survey prompt. figure g: relative and comparative consumption prompt. beyond senate bill 3: how to achieve environmental flows in texas under prior appropriation texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 13 number 1 | 2022 http://texaswaterjournal.org volume 13, number 1 2022 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on on the texas water journal as well as our policies and submission guidelines, please visit texaswaterjournal.org. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. editorial board kathy a. alexander, ph.d. texas commission on environmental quality jude a. benavides, ph.d. the university of texas, rio grande valley gabriel b. collins, j.d. center for energy studies baker institute for public policy ken a. rainwater, ph.d. texas tech university rosario f. sanchez, ph.d. texas water resources institute michael h. young, ph.d. the university of texas at austin editor-in-chief todd h. votteler, ph.d. collaborative water resolution llc managing editor chantal cough-schulze texas water resources institute layout editor sarah l. richardson texas water resources institute staff editor cierra n. george texas water resources institute cover photo: a view of the milky way over phoinix ranch in jim wells and live oak counties. ©2022 rey garza and jim quisenberry the texas water journal is indexed by scopus, google scholar, and the directory of open access journals. http://texaswaterjournal.org https://twri.tamu.edu/ http://texaswaterjournal.org https://journals.tdl.org/twj/index.php/twj/support http://texaswaterjournal.org http://texaswaterjournal.org https://www.scopus.com/home.uri https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://doaj.org/toc/2160-5319 https://doaj.org/apply/seal/ texas water journal, volume 12, number 1 texas water resources institute texas water journal volume 13, number 1, april 20, 2022 pages 13-26 beyond senate bill 3: how to achieve environmental flows in texas under prior appropriation abstract: in 2007, the 80th texas legislature enacted senate bill 3 on the 140th and last day of session. this bill was the third far-reaching piece of water legislation after senate bill 1 passed in 1997 and senate bill 2 passed in 2001. collectively, these bills changed how texas plans for future water needs, regulates groundwater, promotes conservation, studies the need for environmental flows balanced with population needs, and establishes environmental flow standards for texas’ rivers, bays, and estuaries. senate bill 3 created a process through which scientists, stakeholders, and ultimately the texas commission on environmental quality set environmental flow standards. over 15 years have passed since senate bill 3 became law, allowing us to consider the efficacy of the enabling legislation and the resulting rules. in short, identifying and securing water for the environment has been difficult due to little, if any, unappropriated water in the state’s river basins and limitations in senate bill 3 and the texas water code. we identified seven options for stakeholders and the state to consider to increase the protection of environmental flows while respecting private property rights: (1) protecting water right owners who participate in forbearance agreements from water right cancellation; (2) pursuing cancellations and affirming abandonments; (3) requiring that cancelled or abandoned water be set aside to meet environmental flow standards; (4) modernizing how surface-water use and diversions are tracked; (5) requiring water right holders to demonstrate the pursuit of other water supplies before suspending environmental flows; (6) studying how environmental flows can coexist and be protected within a prior appropriation system; and (7) studying how dedications of water under existing water rights can be considered for tax credit or deductions to further incentivize transactions for environmental benefit. if implemented, these options could allow texas and texans to more closely achieve the outcomes many hoped for from senate bill 3. keywords: environmental flows, instream flows, surface water, groundwater, water rights, water code 1 rsah2o, llc 2 meadows center for water and the environment, texas state university * corresponding author: carlos@rsah2o.com received 19 may 2020, accepted 10 february 2022, published online 20 april 2022. citation: rubinstein c, seaton c, mace re. 2022. beyond senate bill 3: how to achieve environmental flows in texas under prior appropriation. texas water journal. 13(1):13-26. available from: https://doi.org/10.21423/twj.v13i1.7115. © 2022 carlos rubinstein, curtis seaton, and robert e. mace. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. carlos rubinstein*1, curtis seaton1, and robert e. mace2 mailto:carlos%40rsah2o.com?subject=texas%20water%20journal%3a%20beyond%20senate%20bill%203%3a%20%0dhow%20to%20achieve%20environmental%20flows%20in%20texas%0dunder%20prior%20appropriation%0d https://doi.org/10.21423/twj.v13i1.7115 https://creativecommons.org/licenses/by/4.0/ https://journals.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 12, number 1 beyond senate bill 3:14 terms used in paper acronym/initialism descriptive name bbasc basin and bay area stakeholder committees bbest basin and bay expert science team efag environmental flows advisory group hb house bill irs internal revenue service sac environmental flows science advisory committee sb senate bill tac texas administrative code tceq texas commission on environmental quality tpwd texas parks and wildlife department twdb texas water development board twc texas water code with municipal, domestic, and industrial uses having superior priority (tceq 2019). neither the prior appropriation adjudication nor the priority of use processes considered water necessary for environmental quality. in 1985, the texas legislature amended the texas water code (twc) to require the consideration of environmental permit conditions in future water rights, consistent with other permit requirements, to protect instream uses (alexander 2019). however, by 1985, texas had been issuing water rights for over 100 years. therefore, pre-1985 rights, which are the substantial majority of issued rights to surface water in texas, do not contain protective language for instream flows (hess 2005). the 1985 amendments added additional substantive requirements for reservoirs within 200 river miles of the coast. these mandated that instream flows for the protection of texas’ bays and estuaries and associated marine life be protected by allocating 5% of the annual firm yield of such reservoirs permitted after 1985. the 5% allocation is dedicated to texas parks and wildlife department (tpwd) to make releases for instream flows (roach 2013). the state issues water rights for beneficial purposes as enumerated in chapter 11 of the twc. environmental flows are not specifically listed among recognized beneficial uses for which water may be appropriated, although the statute recognizes that “other beneficial uses” may exist (twc § 11.024 2019). amendments to the twc due to passage of senate bill (sb) 3 in 2007 prohibited the texas commission on environintroduction when it comes to providing and protecting water for the environment in texas, the path has been anything but timely or easy. if measured by the volume of reliable and protected water set aside for the environment, the path to success remains elusive at best. texas’ experience in this regard is not unique. we note similar difficulties among other western states. while the consideration of environmental water needs has been codified in texas for 35 years, the fashion in which that end has been pursued means little water was available for environmental flows preservation. this paper offers potential solutions to that problem assuming the maintenance of the statutory status quo. between 1967 and 2007, texas undertook a statewide surface-water adjudication process called for by the water rights adjudication act (gervais 2015). the adjudication process allowed the state to validate and quantify the volumes of water authorized under various other instruments (such as previously issued water rights or similar documents to include permits and certified filings) and practices prior to the water rights adjudication act. except for the middle and lower rio grande (tceq 2019), water rights in texas operate under the prior appropriation doctrine or “first in time first in right” (twc § 11.027 2019). the middle and lower rio grande water rights (below the international amistad reservoir) were separately adjudicated and are managed on a priority of use doctrine texas water journal, volume 12, number 1 15how to achieve environmental flows in texas under prior appropriation figure 1. timeline of texas water rights, 1900–2014 (wells and barron bradsby 2018). mental quality (tceq) from allocating unappropriated water under a new water right specifically for instream flows dedicated to environmental needs or bay and estuary inflows environmental use (twc § 11.0237 2019). under the same section of the water code, tceq and owners of water rights are allowed to amend existing water rights to add a use or to change a use to “instream flows dedicated to environmental needs or bay and estuary inflows” (twc § 11.0237 2019). passage of sb 3 in 2007 was anything but easy. sb 3 followed previous omnibus water bills enacted by the legislature: sb 1 passed in 1997, followed by sb 2 in 2001. these bills brought substantial changes to texas water laws governing water planning and groundwater regulation and providing additional funding considerations and processes for texas water projects (rochelle 2007). the texas constitution limits regular legislative sessions to 140 days. legislative calendars and rules severely limit action in the texas house of representatives and the texas senate during the last days of the session. for example, the 86th session 2019 calendar mandated that the 122nd day of the session was the last day for the house to consider house bills and joint resolutions on second reading. the deadline for the house to include in its daily calendar senate bills was the 132nd day of the session. the 140th day was reserved to consider only corrections in the house and the senate (dates of interest 86th legislature 2019). provisions of sb 3 in 2007 were so contested that while sb 3 passed without much difficulty in the senate, house adoption required an unprecedented two-thirds vote on the very last day of the session to concur with the sb 3 conference committee report. the final bill included modifications increasing the number of articles from four to 13, many of which were added language from local bills of interest in the final days of the session (rochelle 2007). proposed legislation similar to that enacted under portions of sb 3 had previously failed to pass in 2005 (roach 2013). sb 3 provided for the identification of flow regimes and water volumes adequate to support a sound environment. it also required that tceq balance scientist and stakeholder process recommendations with the needs of the public in establishing environmental set asides for priority basins. the language mandated that these set asides originate from unappropriated water that may be identified within a specific basin. water appropriated under water rights issued prior to 2007 could not be taken to satisfy environmental needs (puig-williams 2013). consequently, for water rights issued prior to 2007, when sb 3 was enacted, water for the environment was never even close to being first in time—and certainly not first in right. by the time tceq was directed in 1985 to consider permit conditions protective of the environment, the state had already allocated over 20,000,000 acre-feet of water without protective language for instream flows (figure 1; hess 2005; wells and barron bradsby 2018). while some water rights have since been amended to provide water for environmental flows, many of these limitations (such as standards applicable only to posttexas water journal, volume 12, number 1 beyond senate bill 3:16 3. documents that take issue with either the modeling and/or process implemented to arrive at recommended flow regimes (or lack thereof ); 4. documents that comment on what has been undertaken to try to implement sb 3; and 5. documents that review and compare instream flow regulations in the west. as one would expect, several of the citations in this document include works that touch on any one or combination of the categories listed above. an excellent primer can be found within the fifth edition (2018) of the state bar of texas’ essentials of texas water resources, particularly chapter 11, which focuses on environmental flows (wells and barron bradsby 2018). this chapter and its subsequent editions outline in great detail the many aspects, actions, and considerations the legislature and state agencies have undertaken through time as it relates to water administration and environmental flow legislation. as a follow-up to the chapter on environmental flows noted above, we encourage readers to review the rise of water conservation and efforts to protect environmental flows (alexander 2019). in this article, alexander (2019) takes a focused view of how water conservation and concerns relative to the need to protect water for the environment have played a role in major water legislation in texas. a reassuring conclusion in this article, which we echo herein, states that “[t]he progression of major initiatives…led to a 2017 texas state water plan that is the first state plan to include a significant share of capital costs associated with municipal conservation and to directly consider the adopted environmental flow standards in the evaluation of future water development strategies” (alexander 2019). for a comparison of differences between science-based recommendations and final standards adopted by tceq in rules, we recommend implementing sb 3: adopting environmental flows in texas (puig-williams 2013). in particular, we note a conclusion of that paper that we share: “…it remains to be seen whether the standards will, in actuality, protect the ecology of the river and bays” (puig-williams 2013). the texas environmental flows initiative final report outlines recent actions of the first organized effort taken to try to identify and execute a market-based transaction resulting in dedication of fresh water for the environment in texas and associated challenges (ducks unlimited et al. 2019). roach’s (2013) texas water wars: how politics and scientific uncertainty influenced environmental flow decision-making in the lone star state opines on how final rules adopted by the tceq for the first two basins “did not mimic a natural flow regime…” and how the process was “derailed for these basins” due in part to the makeup and interests represented in the stakeholder committees charged with considering recommendations from their respective science committee and making 2007 water rights and consideration limited to unappropriated water) continue to hinder the identification, dedication, and protection of water of sufficient volume necessary to provide for a sound environment. our paper is premised on a realistic acceptance of the status quo as it relates to enacted legislation and authorization with the aforementioned limitations granted to state agencies for the protection of instream flows. our paper offers options that are either policy decisions or activities already authorized in the twc that, if pursued, would enhance voluntary market-based transactions dedicating portions of already-appropriated water for the environment. we took care in choosing these options so as to not infringe on property interests and rights of water-right holders. where we felt that a potential option would result in a property right infringement or a potential takings claim, we did not include the recommendation in this document. for example, one might suggest that the legislature revisit sb 3 and authorize tceq to reopen all existing water rights, including those issued before 2007, to add permit provisions to protect environmental flows. such a recommendation would not likely hold up to court challenges, nor do we see any viable political path now or in the future where the legislature would entertain and/or enact this idea. thus, we did not recommend those types of actions. in some limited instances we did offer recommendations for discussion and possible consideration in future legislative sessions of amendments to the twc that could further enhance the ability to reach, in part, the desired outcomes of sb 3 while protecting property rights to water. previous work in the interest of time and space, this paper will not include a detailed narrative of actions that led to the enactment of sb 3. as previously stated, our premise is that the narrative can best serve future interests by accepting as a starting point the status quo relative to twc provisions governing instream flows and associated rules adopted by tceq to implement the same and offer recommendations from that as a starting point. history is important. we do rely on several excellent existing works, many of which are cited in this paper, to understand the thought process that informed the vision and desired outcome of sb 3. our literature review identified works that can be aggregated into five distinct classes: 1. documents that provide a historical perspective of conditions that led to the enactment of sb 3; 2. documents that explain the regulatory process implemented under sb 3 to identify science-based flow recommendations and how these informed in part tceq adopted standards; texas water journal, volume 12, number 1 17how to achieve environmental flows in texas under prior appropriation figure 2. senate bill 3 map (puig-williams 2013). final recommendations to tceq (roach 2013). one inescapable fact remains, as noted in this work: “in the end, tceq set environmental flow rules at levels lower than those recommended for protection of environmental benefits by the science teams” (roach 2013). while we find the statement to be true, we also acknowledge that the sb 3 process specifically provided that bay and basin area stakeholder committees (bbascs) were to review the analyses and regime recommendations of their respective bay and basin expert science teams (bbests) and “consider them in conjunction with other factors, including the present and future needs for water for other uses [emphasis added] related to water supply planning in the pertinent river basin and bay system” (twc § 11.02362(o)). water in the west’s environmental water rights transfers: a review of state laws provides an excellent summary of the elements in common or lacking in the western states that regulate instream flows (szeptycki et al. 2015). for a more extensive list of reference material considered in the development of this document, please see the references section at the end. sb 3 requirements and rule implementation in order to evaluate and consider the recommendations that follow later in this document, let us first take a few moments to recall what sb 3 called for and how tceq implemented these legislative mandates in rule. sb 3 amendments to the twc include §11.0236, which created a statewide environmental flows advisory group texas water journal, volume 12, number 1 beyond senate bill 3:18 (efag) consisting of nine members, three of which come from the texas house of representatives, three from the texas senate, and three appointed by the governor. the speaker of the house appoints members from the house, and the lieutenant governor appoints members from the senate. governor appointments must come from tpwd, the texas water development board (twdb), and tceq (wells and barron bradsby 2018). sb 3 under twc §11.02361 also called for the establishment of a science advisory committee (sac) to provide input to the efag and make recommendations to help guide the work of developing science-based flow recommendations (wells and barron bradsby 2018). the priority by which texas basins were to be addressed and for which environmental flow standards were to be developed was also dictated by sb 3 (figure 2; twc §11.02362(b); puig-williams 2013). for each priority basin, the efag appointed a bbasc, which in turn appointed a bbest per twc §11.2362(f ) and (i) (wells and barron bradsby 2018). the bbest for each priority basin was charged with developing environmental flow regimes solely based on best available science without regard to the need for water for other uses (see twc §11.02362). these flow regimes, as defined in twc §11.02(16) (2019) had to “reflect seasonal and yearly fluctuations that typically would vary geographically, by location in the 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” (twc §11.02(16) 2019). these recommendations were in turn submitted by the bbest to the efag, bbasc, and tceq. changes to these recommendations by the efag and bbasc were prohibited as per twc §11.02362(n) (wells and barron bradsby 2018). the texas instream flow program was established in 2001 pursuant to sb 2 and jointly administered by the tceq, tpwd, and twdb. the program was charged with performing scientific and engineering studies to determine flow conditions necessary for supporting a sound ecological environment (twdb 2008). texas instream flow studies: technical overview provides us with definitions of key concepts instructive in the deliberation and development of environmental flow regimes. among these definitions are: • subsistence flows: infrequent, seasonal periods of low flow to maintain water quality criteria; • base flows: normal flow conditions between storm events to ensure adequate habitat conditions, including variability, to support the natural biological community; • high flow pulses: short-duration, in-channel, high-flow events following storm events, which maintain important physical habitat features; and • overbank flows: infrequent, high-flow events that exceed the normal channel and maintain riparian areas (figure 3). the bbascs were mandated to consider the bbests’ recommendations and, together with other factors such as current and future water needs, make recommendations to tceq and figure 3. definitions and objectives for instream flow components (twdb 2008). 19 efag. tceq was required under sb 3 to then adopt by rule environmental flow standards for the priority basins. in setting these standards, tceq, as required by twc §11.1471, had to take into account the aforementioned bbest recommendations, bbasc and efag comments and recommendations, existing competing uses and needs within the basins, as well as economic impacts and any other appropriate information (figure 4; roach 2013; wells and barron bradsby 2018). as previously mentioned, sb 3 limited action for the establishment of environmental flow set-asides for the protection of environmental flows from water within a basin that had not yet been appropriated to anyone else under a water right (wells and barron bradsby 2018). as compared with firm yield availability within a basin, minus water already allocated for other uses, little if any unappropriated water was found either during the bbasc deliberation or in tceq rule development. certainly, there was not enough unappropriated water to meet the science-based recommendations of the bbest. this is not a fault of the process or by action or lack thereof from tceq— it is simply an inherited legislative limitation and a reality. this is best captured by the following statement from wells and barron bradsby (2018): one item of note is that, after the adoption of the third set of rules relating to the priority basins, the commission has not established any set-asides as part of the environmental flows rules adopted thus far. for example, with respect to the nueces, brazos, and rio grande bay and basin areas, the commission, in response to comments critical of the decision, stated that setasides were not reasonable because of limited water availability (wells and barron bradsby 2018). based on this reality, it appears to us that we are left with two options: 1. identify how more water can be made available within a basin to count towards the unappropriated water bucket that can then be considered for set-aside to meet desired benefits of environmental flows; and 2. incentivize and add value to market-based transactions from already allocated water for environmental flow benefits. put another way, 15 years after the passage of sb 3, identifying and securing water for the environment has been as difficult, if not more so, than the actual passage of sb 3 in 2007. figure 4. texas senate bill 3 process for establishing environmental flows (e-flows). grey arrows indicate appointment of agency or committee members, and black dotted arrows indicate submital of e-flow recommendations or standards (roach 2013). texas water journal, volume 12, number 1 beyond senate bill 3:20 western states comparison szeptycki et al. (2015) examined statutes relative to environmental flows among 12 western states, identifying ten factors “to evaluate the effect of administrative review and approval processes on the past and near-term future ease and certainty of environmental rights transfers in each state.” these factors, which are shown in table 1, include: 1. whether state law explicitly recognizes fisheries habitat, recreation, or other environmental purposes as beneficial uses. 2. whether transfers of existing diversionary rights to instream or other environmental uses are allowed by state law (whether by statute, court opinion, or agency opinion). 3. whether transfers of water rights for environmental purposes are explicitly recognized by statute. 4. whether private parties can hold instream flow rights. 5. whether permanent transfers of diversionary rights to instream or other environmental uses are allowed. 6. whether state law explicitly recognizes short-term leases and provides some form of expedited review for their approval. 7. whether transfers of rights for environmental uses are subject to significant limitations that do not apply to other water rights transfers, including geographic limitations, limitations as to purpose, or more stringent procedural requirements. 8. whether the state has a conserved water statute that explicitly allows some portion of water saved by irrigation efficiency improvements to be dedicated to environmental purposes. 9. whether the state allows the instream uses to be added to a water right, along with diversionary uses, so that the holder of the right may “stack” instream and diversionary uses on a single water right and allocate water between the two uses each year without the need for additional state review or approval. 10. whether the state’s law provides some mechanism for protecting informal short-term private transactions, such as split season agreements or forbearance agreements, from any risk of forfeiture or abandonment. (szeptycki et al. 2015) texas compares favorably to other western states, but some elements (recognizing and expediting short-term leases and protecting informal short-term private transactions from forfeiture or abandonment) are not currently available for texas water rights. options as previously noted, this paper is premised on the fact that sb 3 prevented direct action against pre-2007 water rights for identification and reallocation of water for environmental flows. sb 3 limited the origin of set-asides of water for the environment from unappropriated water and conditioned post-2007 new appropriations of water to such environmental flow criteria. at face value, this can be viewed by many as an opportunity lost or, at a minimum, a legal impediment. neither is necessarily true in its entirety. pre-2007 rights issued before sb 3 hold a similar condition true of all issued water rights including those being issued today: that they are usufructuary rights. simply put, surface-water rights in texas grant the use of the water, not owntable 1. western states comparison of the 10 elements identified by szeptycki et al. 2015. az ca co id mt nv nm or tx ut wa wy environmental use as a beneficial use specifically recognized x x x x x x x x x x x x transfer of water right for environmental uses allowed x x x x x x x x x x x x transfer of water right for environmental use recognized in statute x x x x x x x x x x private ownership of instream right allowed x x x x x permanent transfers allowed x x x x x x x x x x x short-term leases recognized in statute x x x x x x x x limitations specific to transfers for instream uses x x x x x x conserved water dedicated to instream use in statute x x x x x x environmental use allowed in a multiuse right x x protection of water right for forbearance and short-term agreements x x x x x note: an x denotes that the element or a portion of the element exists in the noted state (szeptycki et al. 2015). texas water journal, volume 12, number 1 21how to achieve environmental flows in texas under prior appropriation ership of the water. surface water is owned by the state. holders of water rights may use state water in a particular place, from a particular diversion point, with any applicable volume and diversion rates for a particular beneficial use. once this water has been diverted under the issued water right and put to beneficial use, the permit authorizing the same has been “perfected” and thus a vested property right (caroom and maxwell 2018). for this reason, pre-2007 water rights were excluded by sb 3. but that does not mean that this appropriated water is lost from the system or for future consideration for environmental flows forever. water appropriated under a previously issued permit, irrespective of when the right was issued, can be dedicated for environmental flows (wells and barron bradsby 2018). water appropriated under a previously issued permit, irrespective of the issued date, can be subject to cancellation in whole or in part or to abandonment (twc chapter 11 subchapter e 2019). twc §§ 11.171-186 grants authority to tceq to cancel a water right in total or in part for nonuse over 10 consecutive years immediately before the cancellation process is undertaken. twc § 11.173(b) grants specific exemptions from cancellation: • for owners who participated in the conservation reserve program authorized by the food security act; • if a significant portion of a water right was used as a recommended strategy to meet a water need included in the regional water plan; • if the right was obtained to meet demonstrated longterm public water supply or electric generation needs consistent with projections for need in the state water plan; • if the water under the right was allocated as the result of a reservoir constructed and funded in whole or in part by the water right holder; • if the nonuse resulted from the implementation of water conservation measures as per applicable water conservation plans; • if the nonuse resulted from a suspension or other restriction on the use of water under an order issued by the executive director of the tceq; or • the demonstration of inability to appropriate the water authorized under a water right due to drought conditions. twc § 11.177 provides other critical findings of fact that the commissioners of tceq must determine prior to issuing a cancellation order: • whether the permit, certified filing, or certificate of adjudication has been deposited into the texas water bank (limited to a one-time exemption from cancellation as per twc § 15.174); • whether the water right or water available under the water right is being made available for purchase through private marketing efforts; or • whether the water right has been reserved to provide for instream flows or bay and estuary inflows (twc chapter 11 subchapter e 2019). additionally, as specified by twc § 11.030, an owner of a water right that willfully abandons the use of state water previously appropriated under a water right during any three successive years can forfeit the right to use the water and associated permit (caroom and maxwell 2018). water previously appropriated under a water right that is subsequently cancelled or abandoned is again subject to appropriation. thus, cancellations and/or abandonments could result in additional unappropriated water within a basin. our first and second options are that (1) the legislature amend the exemptions in twc § 11.173(b) by adding protection from cancellation for owners of water rights that participate in documented forbearance agreements (where the owner of the water right chooses not to divert water under a water right and allows the same quantity to remain in the stream for environmental benefit); and (2) tceq, either by its own initiative or by legislative directive, exercise its existing legislative authority and pursue cancellations and affirm abandonments. house bill (hb) 2710 from the 87th legislative session would have achieved one of these recommendations—forbearance protection from cancellation. unfortunately, hb 2710 did not see final action in the texas senate. cancellations, abandonments, and the basis to pursue either is based on the same set of facts: water under a previously issued water right has gone unused for at least 3 years for voluntary abandonments and 10 years for cancellation. we note that while this water has gone unused by the existing owner and may contribute to some environmental flows in discrete segments, it is neither dedicated for the environment or protected from other downstream diversions and uses. pursuit of cancellations and affirmation of abandonment can also incentivize market-based transactions that could result in a dedication for environmental flows. such proceedings could also result in increased deposits into the texas water trust. the texas water trust, created by the legislature in 1997, provides an opportunity to acquire—by donation, lease, or purchase— water rights for environmental purposes. existing water right holders can choose to donate or place their water right in the texas water trust. either voluntary abandonment or deposit of the water right into the texas water trust could benefit the environment and add value to water appropriated under a water right and available for market-based transactions. our third option would require a legislative modification. recognizing that the goal of sb 3 to have water identified and specifically set aside for the environment has not materialized, texas water journal, volume 12, number 1 beyond senate bill 3:22 the legislature could consider amending twc chapter 11 to add a provision that all water previously appropriated under a water right that is cancelled or abandoned and returned to the system as unappropriated water is to be reflected by tceq as set-aside for compliance with the adopted environmental flow standards. put another way, allocated water that is cancelled or abandoned should not be made available for appropriation to uses other than environmental flows. these options do not threaten a private interest to water under a previously issued water right. the water would become unappropriated due to a cancellation proceeding that is already protective of an owner’s interest to water (see texas supreme court decision texas water rights commission v. wright, 464 s.w.2d 642 [tex. 1971]; caroom and maxwell 2018). supporting the option for cancellation proceedings is the additional consideration that such actions result in a partial desirable resolution of an existing problem: addressing the over-appropriation of texas rivers and streams. coupled with the decline in sources of water availability in texas as noted in the 2017 state water plan (twdb 2017), projected to be 11% less than existing levels, not pursuing cancellations and affirming abandonments can augment the projected negative impacts due to declining water supplies for all uses—including the environment. cancellations and legislative action to call for increased use of already existing legislative authority for the same would likely be opposed by water right holders and regulators. the burden of proof for such action rests with tceq. the last action by tceq to cancel water rights in moderate to substantial numbers was january 2003 for the middle and lower rio grande (tceq 2003). our fourth option is for the legislature to enact legislation that modernizes the way in which surface water use and diversions are tracked. among the data sets available to tceq to meet its burden of proof to undertake cancellation proceedings are the annual water use reports required of all water right holders in accordance with twc § 11.031. such reports are required to be submitted no later than march 1 (twc § 11.031 2019). within watermaster areas, the diversion of water under a water right is typically pre-approved by the watermaster and verified by metered diversion points and verified by assigned watermaster staff. for the remainder of the state, information submitted by the owners of water rights representing annual water use is largely on an honor system. unless specifically called for in an individual water right, there is no metering requirement outside of watermaster areas nor is there currently a requirement for a filing of intent to divert water or similar notification prior to an owner of a water right diverting water as authorized by a water right. the same is true for permit exempt diversions for domestic and livestock uses. to implement this option, the legislature would need to modify twc § 11.031 in four ways: 1. remove the annual honor system-based water use report requirement. 2. provide funding for tceq to develop an easy-to-use web-based application to capture diversion reporting by water users. this would be a reporting action and not a request for permission to divert, as those diversions should already be authorized under an issued water right. 3. require that diversion reporting be more real-time in nature—for example, require that an owner of a water right report their diversion immediately prior to and no less than one week after the diversion or change in diversion rate. where metering is not used, the pump’s maximum diversion rate or other similar way of computing volume diverted and placed to beneficial use could be accepted. 4. charge tceq that in the development of this online notification process, that data be captured relative to amount diverted, purpose of use, water right exercised, priority date of the water, and either consumptive or non-consumptive uses of the water diverted. such data would allow tceq to better track water use against issued water rights and provide twdb and regional water planners with better data representative of current actual uses of surface water. such action could also assist in ensuring that only authorized amounts of water under a right are diverted and placed towards their intended use irrespective of whether those are occurring within or outside of a watermaster area. obviously, this increased verification would also allow water not authorized for diversion to remain in the watercourse and benefit the environment. an additional benefit of implementing this option is that, as droughts have shown of late and senior calls are filed due to water shortages, a more real-time accounting of actual water use to date by tceq would allow it to better assess and implement use restrictions and impacts to other users and the environment while responding to such calls for water. we take note of and commend tceq’s actions to automate water rights data through an effective tool they developed as a water rights viewer. we believe that this option is in keeping with such current advancements. our fifth option is for the legislature to modify the drought exemption allowing for suspension of environmental flows to make it clear that before tceq suspends provisions relative to environmental flows, persons or entities who will benefit from such suspension of environmental flow requirements would first have to demonstrate pursuit of water via provisions enumerated under twc§ 11.139. texas water journal, volume 12, number 1 23how to achieve environmental flows in texas under prior appropriation sb 3 requires that during times of drought, the environmental flow criteria established by tceq under the required rules could be temporarily suspended. this is codified in twc § 5.506 (2019): sec. 5.506. emergency suspension of permit condition relating to, and emergency authority to make available water set aside for, beneficial inflows to affected bays and estuaries and instream uses. (a) the commission by emergency or temporary order may suspend a permit condition relating to beneficial inflows to affected bays and estuaries and instream uses if the commission finds that an emergency exists that cannot practicably be resolved in another way. (a-1) state water that is set aside by the commission to meet the needs for freshwater inflows to affected bays and estuaries and instream uses under section 11.1471(a)(2) may be made available temporarily for other essential beneficial uses if the commission finds that an emergency exists that cannot practically be resolved in another way [emphasis added]. (b) the commission must give written notice of the proposed action to the parks and wildlife department before the commission suspends a permit condition under subsection (a) or makes water available temporarily under subsection (a-1). the commission shall give the parks and wildlife department an opportunity to submit comments on the proposed action for a period of 72 hours from receipt of the notice and must consider those comments before issuing an order implementing the proposed action. (c) the commission may suspend a permit condition under subsection (a) or make water available temporarily under subsection (a-1) without notice except as required by subsection (b). (d) the commission shall notify all affected persons immediately by publication (twc §5.506 2019). under separate authority, emergency orders for water can be issued by tceq as prescribed in twc § 11.139 (2019): sec. 11.139. emergency authorizations. (a) except as provided by section 11.148 of this code, the commission may grant an emergency permit, order, or amendment to an existing permit, certified filing, or certificate of adjudication after notice to the governor for an initial period of not more than 120 days if the commission finds that emergency conditions exist which present an imminent threat to the public health and safety and which override the necessity to comply with established statutory procedures and there are no feasible practicable alternatives to the emergency authorization [emphasis added]. such emergency action may be renewed once for not longer than 60 days. (b) a person desiring to obtain an emergency authorization under this section shall submit to the commission a sworn application containing the following information: (1) a description of the condition of emergency justifying the granting of the emergency authorization; (2) a statement setting forth facts which support the findings required under this section; (3) an estimate of the dates on which the proposed authorization should begin and end; (4) a description of the action sought, and the activity proposed to be allowed, mandated, or prohibited; and (5) any other statements or information required by the commission. … (h) the commission may grant an emergency authorization under this section for the temporary transfer and use of all or part of a permit, certified filing, or certificate of adjudication for other than domestic or municipal use to a retail or wholesale water supplier for public health and safety purposes. in addition to the requirements contained in subsection (b) of this section, the commission may direct that the applicant will timely pay the amounts for which the applicant may be potentially liable under subsection (j) [emphasis added] of this section and to the extent authorized by law will fully indemnify and hold harmless the state, the executive director, and the commission from any and all liability for the authorization sought. the commission may order bond or other surety in a form acceptable to the commission as a condition for such emergency authorization. the commission may not grant an emergency authorization under this section which would cause a violation of a federal regulation. (i) in transferring the amount of water requested by the applicant, the executive director or the commission shall allocate the requested amount among two or more permits, certified filings, or certificates of adjudication for other than domestic or municipal use. (j) the person granted an emergency authorization under subsection (h) of this section is liable to the owner and the owner's agent or lessee from whom the use is transferred for the fair market value of the water transferred as well as for any damages caused by the transfer of use [emphasis added]. if, within 60 days of the termination of the authorization, the parties do not agree on the amount due, texas water journal, volume 12, number 1 beyond senate bill 3:24 or if full payment is not made, either party may file a complaint with the commission to determine the amount due. the commission may use dispute resolution procedures for a complaint filed under this subsection. after exhausting all administrative remedies under this subsection, an owner from whom the use is transferred may file suit to recover or determine the amount due in a district court in the county where the owner resides or has its headquarters. the prevailing party in a suit filed under this subsection is entitled to recover court costs and reasonable attorney's fees. … (l) an emergency authorization does not vest in the grantee any right to the diversion, impoundment, or use of water and shall expire and be cancelled in accordance with its terms (twc §11.139 2019). adding pursuit for emergency authorization of use of water under twc § 11.139 as a precondition to temporarily suspending environmental flow requirements would assist tceq in making a finding that there are no other alternatives to alleviate an emergency. such action would also add value to water—both for emergency use under twc § 11.139 as well as recognizing the value of water for the environment. our sixth option is for the legislature to study ways in which water dedicated for environmental flows can coexist and be protected within our prior-appropriation system. a key disincentive for the pursuit of market-based transactions and dedication of water for the environment is the fact that such flows are not protected from downstream diversion and use. water in the stream is available for diversion in accordance with issued water rights based on priority date or by permit-exempt domestic and livestock uses. in an ideal world, and if we could turn back the clock 120 years or so, it would have been better if environmental flows had received superior rights to water as permit exempt domestic and livestock uses continue to enjoy today. that is not the case. however, we should explore the intent of an environmental flow set-aside. if the intent was to exclude this water from further consideration for appropriation for uses other than the environment, and if such set-asides were in fact established in rule (wells and barron bradsby 2018), how would environmental flow set-asides be protected from diversion? the same holds true for water dedicated for the environment or diversion flow restrictions, particularly for post-2007 water rights. this issue requires further study and consideration and may in the end be incompatible within a prior appropriation system in as much as existing senior water right holders can today exercise their right to divert this water. our seventh option is for the legislature and interested parties to study how dedications of water under existing water rights can be considered for tax credit or deductions or buyback so as to further incentivize transactions for environmental benefit. while there are examples of legislative action and/or donations of water and dedication of the same for instream or environmental benefits that have successfully resulted in internal revenue service (irs) accepted tax credit (hicks 2011), we were unable to identify clear irs guidance or ruling on the issue. we noted state-specific actions like colorado’s attempt under hb 15-1159 in 2015 and washington state’s efforts under the washington water trust program that may have tax benefits from in-state tax considerations among others. clearly, states that impose various tax schemes can offer more flexibility than those that do not. in texas, a mechanism that perhaps results in some property tax relief for dedications of water for the environment may incentivize market-based transactions. from a federal perspective, more flexible tax credit for charitable donations or dedications of water for the environment under irs code 26 § 170 could serve as a powerful incentive for such transactions. informal actions in closing, we recognize that while this paper focused on providing options of formal or regulatory actions that could be undertaken to further incentivize the identification, acquisition, dedication, and protection of environmental flows, there are proven examples across the west and in texas of informal activities (not necessarily requiring regulatory action) with various degrees of success that, in part, achieve the same desired goals. these include: • establishment of a public, private, or public-private-partnership water trust to serve as a recipient or holder of water rights for the environment or leased water under a market-based transaction (king 2004). • establishment of public or private entities to serve as clearinghouses or to act in the marketplace for the acquisition of water for the environment. this includes the buyback of water rights by state agencies. transactions can be outright purchases, leases, and donations of water for instream flows (landry 1998). • non-governmental organizations’ collaborative efforts with stakeholders and owners of water rights for the establishment of system conservation pilot programs to promote funding for actions that include leaving water in the streams for environmental benefit (szeptycki 2018). an added benefit of this type of effort is that by identifying within a targeted river reach or segment interested parties that agree to participate in a conservation protexas water journal, volume 12, number 1 25how to achieve environmental flows in texas under prior appropriation gram, including fallowing of fields and commitments to divert less water, such actions result in the protection of environmental flows that can be studied for intended benefits within these same targeted river reaches. o related to incentivizing water conservation and reduced water demand, we note the interest in new mexico to allocate funds in their state budget for implementation of a pilot program to incentivize and compensate reduced use of water on the rio grande by fallowing fields. in this case, the cause of action appears to be the ongoing texas v. new mexico rio grande compact dispute (nott 2020). while the outcome in this case is to make available additional water for compact compliance, it is ironic and inescapable that such actions result in leaving more water in the stream. these types of actions relate to both surface and groundwater rights. such actions can assist in addressing and in part reversing negative impacts in areas where groundwater and surface-water interactions are evident. conclusion texas, like other western states, came to the realization that its water adjudication processes had not provided protections through time for instream flows providing environmental benefits. the prior appropriation system and property right interest it conveys, which governs most all western water law, is at a minimum incompatible with post-adjudication attempts to address the lack of reservation and protection of water for environmental flows. but this partial incompatibility has not deterred legislators, regulators, and stakeholders from pursuing transactions and dedications of water for the environment. meeting environmental flow needs and addressing the associated water issues are complex. the issue remains unresolved—but progress has been made. continued creative efforts to address the issue are needed if we are to achieve the goals we strived for—water for the environment that is protected for such use and benefit. references alexander k. 2019. the rise of water conservation and 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barron bradsby 2018 twc § 11.0237 2019 dates of interest 86th legislature 2019 rochelle 2007 roach 2013 puig-williams 2013 hess 2005 wells and barron bradsby 2018 wells and barron bradsby 2018 alexander 2019 puig-williams 2013 ducks unlimited et al. 2019 roach 2013 puig-williams 2013 roach 2013 twc § 11.02362(o) szeptycki et al. 2015 twdb 2008 wells and barron bradsby 2018 twc §11.02362(b) puig-williams 2013 §11.02(16) 2019 twdb 2008 roach 2013 wells and barron bradsby 2018 caroom and maxwell 2018 wells and barron bradsby 2018 twc chapter 11 subchapter e 2019 caroom and maxwell 2018 twdb 2017 tceq 2003 twc § 11.031 2019 twc § 5.506 2019 twc § 11.139 2019 twc §11.139 2019 wells and barron bradsby 2018 hicks 2011 king 2004 landry 1998 szeptycki 2018 nott 2020 interjecting economics into the surface water dialogue texas water journal, volume 10, number 1 texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 10 number 1 | 2019 https://www.texaswaterjournal.org editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university volume 10, number 1 2019 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineer-ing, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. rosario sanchez, ph.d. texas water resources institute managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editors chantal cough-schulze texas water resources institute kristina j. trevino, ph.d. trinity university cover photo: painted bunting at madla park, grey forest, texas. ©2018 grace hardy. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. https://twj-ojs-tdl.tdl.org/twj/index.php/twj/support https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water journal, volume 10, number 1 texas water resources institute texas water journal volume 10, number 1, december 17, 2019 pages 112-127 abstract: this paper applies the conceptual lens of economic efficiency as a criterion by which to evaluate surface water in texas. we identify two major problems. first, texas has a water allocation problem limiting the ability to substitute groundwater for surface water to move water between river basins and to facilitate transfers within a river basin. second, surface water is both underpriced and unresponsive to drought conditions preventing it from being used at its highest and best use. we propose a variety of partial solutions, which include facilitating greater reliance on water markets as well as a water tax that would vary across regions and over time to encourage conservation. keywords: surface water regulations, surface water allocation, surface water tax interjecting economics into the surface water dialogue 1 master of public service and administration students, bush school of government and public service, texas a&m university 2 faculty advisor bush school of government and public service, texas a&m university * corresponding author: jmgriffin@tamu.edu maria vaca,1 stefni richards,1 alexa davis,1 kylie jackson,1 nanag timur,1 fahad manzoor,1 said azam,1 robert feltman1 and james griffin2* citation: vaca m, richards s, davis a, jackson k, timur n, manzoor f, azam s, feltman r, griffin j. 2019. interjecting economics into the surface water dialogue. texas water journal. 10(1):112-127. available from: https://doi.org/10.21423/twj.v10i1.7062. © 2019 vaca m, richards s, davis a, jackson k, timur n, manzoor f, azam s, feltman r, griffin j. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:jmgriffin%40tamu.edu?subject= https://doi.org/10.21423/twj.v10i1.7062 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 10, number 1 113interjecting economics into the surface water dialogue terms used in paper acronym descriptive term cfs cubic feet per second cif community involvement fund gdp gross domestic product gcd(s) groundwater conservation districts lcra lower colorado river authority msb marginal social benefit msc marginal social cost mwd metropolitan water district pvid palo verde valley irrigation district pdsi palmer drought severity index swift state water implementation fund for texas tceq texas commission on environmental quality twdb texas water development board wam water availability model introduction paradoxically, while texas is a leader in the science of modelling surface water flows (see wurbs 2015), economic efficiency has taken a back seat to other criteria in the surface water policy dialogue. these other criteria can include protecting existing stakeholders, guaranteeing environmental flows to bays and estuaries, protecting water for local use, and so forth.1 each criteria yields separate, and often conflicting, policy recommendations around which various interest groups coalesce. the result is an emotion-charged political patchwork fashioned during severe droughts. in the past, ignoring economic criteria was relatively costless because texas had an abundance of both surface water and groundwater. but with population growing from 11.2 million in 1970 to an estimated 29.1 million by 20192 and the state’s gross domestic product (gdp) topping all but 10 countries,3 we can no longer afford to exempt texas’ 1 other examples include protecting: touristic areas, animals and wildlife, other economic activities. 2 texas state demographer. https://uspopulation2019.com/population-of-texas-2019.html 3 this ranking is obtained by comparing the gdp of countries from the world bank data (2018) and the texas gdp from the texas comptroller 2018 website. water resources from economic scrutiny. griffin (2017) offered a critique of groundwater policy from an economics perspective. this sequel paper offers an economic critique of surface water regulation and is based on a 2017 bush school capstone report (vaca et al. 2017) to state comptroller glenn hegar. by adopting the conceptual lens of “economic efficiency” as this paper’s evaluation criterion, further justification is in order. economic efficiency requires that for the last tranche of water consumed, the marginal social cost (msc) of providing water just equals its marginal social benefits (msb).4 note that the terms “social” costs and “social” benefits implies that we adopt a holistic approach looking at society as a whole in which environmental costs are factored in. economic inefficiency can occur either with too little (msc>msc) or too much (msb<msc) water consumption. particularly, when water is misallocated from high-valued uses to low-valued uses, the welfare loss (or efficiency loss) to society as a whole would be measured by the difference between the two. for example, if surface water is diverted from an industrial user willing to pay $1000/acre-foot to a cotton farmer only able to pay $100/ acre-foot, then the welfare loss from this misallocation is $900/ acre-foot. note that this calculation is value neutral between 4 see gruber (2013). https://uspopulation2019.com/population-of-texas-2019.html https://uspopulation2019.com/population-of-texas-2019.html texas water journal, volume 10, number 1 interjecting economics into the surface water dialogue114 (1) the magnitude of the efficiency gains; (2) the identity and magnitude of the loss to the disadvantaged group; and (3) the feasibility of compensating the losers. first, are the efficiency gains potentially large? going back to the cotton/industrial product example, is the difference in value between the two, $900/acre-foot or only $10/acre-foot? at a $900/acre-foot difference, the efficiency gains are potentially large, particularly if there are substantial quantities of water being relegated to low-valued uses. second, who would lose from the efficiency-enhancing policy and how much? both the identity and the magnitude of the loss are relevant. clearly, there are situations where the affected group deserves no consideration, such as a monopolist losing his monopoly profits due to antitrust prosecution. the case of the cotton farmer is more problematic. is there a national security justification for subsidizing cotton production by providing cheap water? are there other justifications such as cotton farmers representing a unique culture that is worth preserving? and if so, how much of a subsidy is justified to maintain this culture? third, when equity concerns are real and a severe impediment to economic efficiency, policy makers should look to find ways of compensating the losers so that everyone is a winner. as an example, in a brady et al. (2016) analysis of groundwater, they proposed a mitigation fund for rural homeowners who might find their well dry. ultimately, the political process will answer these questions and choose a trade-off between equity versus efficiency, but that is not the focus here. by choosing to look only at the economic efficiency attributes in this paper, we avoid the subjective and value-laden calculus of determining when equity considerations trump efficiency. there is an important word of warning regarding the excessive use of equity justifications to block efficiency-enhancing policies in cases where it is not feasible to compensate the losers. excessive concern for equity can become a mantra for the status quo, which may lead to even worse problems in the future. in a vibrant market economy with continual technological advances, new products, and changing consumer tastes, some investors and some workers routinely find themselves the victims of these unforeseen events. certainly, one would not want to stifle change in general, because when balanced over time, rising standards of living have made all of us better off. unfortunately, in many instances the feasibility of compensating every individual for his/her bad fortune (and thereby making everyone winners) may be impractical. a final attribute of using economic efficiency as a metric to evaluate policy options is that market prices can often provide valuable common sense signals. in a properly functioning market, prices send signals of relative abundance or extreme scarcity. in turn, consumers respond to high prices by reducing conthe choice of producing cotton or producing industrial products. normally in the absence of significant externalities in the form of environmental effects, the market value for water used in cotton versus industrial production will prescribe that the water should flow to its highest valued use.5 this papers proceeds as follows. first, it will go over the case for adopting economic efficiency as an evaluation criterion, which will set the basis to justify our later policy recommendations. second, we will explain two main problem areas for economic efficiency in surface water that arise from current regulations and policies and propose alternative solutions to each of these problems. the case for adopting economic efficiency as an evaluation criterion opposition to adopting the economic efficiency criterion rests primarily on the notion that some group or groups will be negatively impacted. economists have long recognized that the policies promoting economic efficiency will produce winners and losers. this is called the equity versus efficiency tradeoff.6 even though society as a whole is a net winner from efficiency-enhancing policies, some individuals and groups may be worse off. particularly, if a policy severely impacted the poorest segments of society, policy makers should seek ways to compensate the disadvantaged group and if that was not possible, the efficiency-enhancing policy might be scrapped. likewise, with water, emotional fears of running out of water, whether grounded in reality or imagination, can raise strong equity concerns. thus, “equity” and economic efficiency can be in conflict. even though the winners gain more than the losers lose, there may be no simple way to compensate the losers and equity trumps efficiency. for example, on efficiency grounds a universal poll tax avoids all the labor-leisure distortions resulting from the progressive income tax; yet, there is little support for such a tax because of its impact on the poor. at the other extreme, we have antitrust laws designed to curb the exercise of monopoly power. clearly, in this case, the disadvantaged group from antitrust prosecution is the monopolist; yet the public shows little sympathy to the monopolist. efficiency trumps equity. in struggling to reconcile equity versus efficiency, economists look at the following three things:7 5 in the event there are significant environmental externalities that are not internalized in the costs of producing the cotton or the industrial products, the values for each would be adjusted accordingly. 6 see gruber (2013) 7 see pascual et al. (2010) and martini (2007) texas water journal, volume 10, number 1 115interjecting economics into the surface water dialogue sumption while producers respond by increasing production. by examining water prices during periods of droughts and abundance, we can see if prices are sending the proper signals to conserve and increase supplies. the absence of the proper price signals forms a prima facie case for economic inefficiency. because of the importance of markets sending the proper price signals, this report will frequently center on markets and the price signals being sent. problem areas and solutions our study of surface water (vaca et al. 2017) identified two basic sources of economic inefficiency. the first problem is that texas has a water allocation problem with significant impediments to moving water from low-valued uses to high-valued uses. the second problem is that surface water in texas is underpriced and inflexible in the face of droughts. the current pricing practices do not include a scarcity premium for raw water.8 gold commands a scarcity premium far in excess of the basic cost to mine and refine the ore. yet, texas surface water, a far more essential resource, commands no such scarcity premium. especially during a drought, it is critical for prices to rise, encouraging conservation. problem area 1: texas has a water allocation problem the state has abundant water resources in certain locations where they are being relatively underutilized and relative scarcity in other areas. if low-cost mechanisms can be found to move water to the areas of greater need, texas can delay having to implement high-cost alternatives like seawater desalination in the near term. it is useful to think of improving water allocation through three avenues: (1) greater conjunctive use of groundwater and surface water (2) reallocation of water resources within a river basin and (3) reallocation of surface water between river basins. problem 1.1: limited transfers between groundwater and surface water as there is a hydrological interconnection between surface water and groundwater,9 there is also an economic relationship of substitutability between both of them. for instance, for many raw water uses, such as municipal, industrial, and agricultural uses, there is no major quality difference between surface water and groundwater. to the extent there are quali8 some drought contingency plans do include a surcharge if a contract holder does not reduce usage when required under the plan. for example, the gulf coast waster authority’s plan includes the surcharge. in effect, if a user does not reduce its use, the cost for water is higher. 9 see winter (1998), sophocleous (2002). ty differences, inexpensive treatment costs may make the two equivalent.10 consequently, in the case that groundwater and surface water are equally available, the choice of which one to use should fall almost exclusively on costs.11 however, from a policy perspective, the independent regulation of surface water and groundwater often overlooks this substitutability. specifically, even though the state owns the surface water and landowners own the groundwater, there is no inherent reason that regulatory constraints should prevent their substitution particularly during droughts. the fact that groundwater is generally available with greater certainty,12 while surface water is intermittent and characterized by uncertainty, means that allowing emergency conjunctive use of groundwater and surface water can bring major efficiency gains for consumers and the environment. let us consider the case of a very severe drought that affects many surface water streams and their users. currently, there is no policy that incentivizes groundwater owners to react to droughts by increasing groundwater pumping to sources normally supplied by surface water. usage-based groundwater conservation district (gcd) regulations effectively preclude an irrigator from selling his groundwater to a nearby municipality or power plant whose surface water is facing curtailment or depletion (brady et al. 2016). yet, during this hypothetical drought, the economic benefits of the conjunctive use would be very large: surface water users would benefit from water that would not be available otherwise, and groundwater users would be very highly compensated from selling their water. in addition, added groundwater would augment stream flows stressed by the drought helping to alleviate environmental effects (mckinney 2012). solution: eliminate usage-based regulations by the gcds and texas commission on environmental quality (tceq). in order for these transfers to occur, the usage-based regulations by the gcds and tceq should be eliminated for shortterm transfers. if groundwater is going toward a beneficial use as specified by the texas water code13 and the transfer is specified for a short period of time as during a drought, there should be no further regulation on where a groundwater right holder can use their water. 10 for an overview of different treatment options and costs, see bhojwani et al. (2019). 11 by this cost, we refer to a total cost of using surface water or groundwater including any treatment necessary to get a certain quality of water. 12 the one exception is for the edwards aquifer, which is subject to mandatory cutbacks during droughts. 13 texas water code chapter 11 defines “beneficial use” to include domestic and municipal, agricultural and industrial, mining, hydroelectric, navigation, recreation and pleasure, public parks and game preserves. texas water journal, volume 10, number 1 interjecting economics into the surface water dialogue116 problem 1.2: restrictions on interbasin transfers according to former tceq commissioner and texas water development board (twdb) chairman carlos rubinstein, texas will not be able to fix its water problems until we can successfully move water from “where it is, to where it is not” (personal communication in january 16, 2017 meeting). one way to do this is through interbasin transfers, moving water from abundant areas in east texas to central and west texas. a major issue that arises when discussing interbasin transfers is the junior rights provision included in senate bill 1. when a transfer outside of the basin occurs, the junior rights provision changes the water right’s original priority date and becomes the most junior prior appropriation. in the current prior appropriation system,14 this provision is intended to protect the basin of origin. however, the junior provision can reduce economic efficiency by degrading the value of a water right and thereby reducing the incentive for interbasin transfers. how does the junior rights provision affects economic efficiency? the junior rights provision affects economic efficiency because the value of the water is greatly diminished when the priority date is changed. this reduction in the value of water rights minimizes the incentives to sell or buy water from other basins, even when there are economic gains from doing so.15 for instance, buyers can be reluctant to invest in a costly pipeline that might only be used a fraction of the year or only during very wet years, when junior right holders can divert. it is important to note that when there is plenty of water in the basin of origin, the junior provision becomes irrelevant and would not prevent any transfer from happening. however, it is the combination of uncertainty about drought conditions and a loss of priority that reduce the incentives to buy water from another basin under the junior rights provision. a system created to pump water out of one river and transport it through a pipeline is very expensive. if the system can only be used when there is abundant water in the basin of origin, the system could sit idle for years. the cost per acre-foot of water for the project would become untenable. consequently, the change in priority date favors the basin of origin regardless of the fact that the benefits of the transfer can outweigh its costs. even though there is no explicit proof that the junior rights provision has prevented transfers from happening, votteler et al. (2007) show that there is a reduction in the number of non-exempt interbasin transfers after the junior rights provision was passed in senate bill 1 in 1997. before that year, a total of 28 interbasin transfers had occurred over the period 1980 to 1996. after senate bill 1, 14 a system with no clear compensation mechanism established for the basin or origin. 15 this argument is particularly applicable to run of the river rights. for transfers from reservoir storage, the impacts of the junior rights may be substantially diminished. only three transfers have occurred in the period between 1997 and 2006.16 since 2006, we found only one interbasin transfer for water already owned by the city of houston.17 these data strongly support the conclusion that the junior rights provision has definitely reduced interbasin transfers. since supporters of the junior rights provision rest their support for it on equity grounds, it is important to ask the three questions outlined earlier regarding the case for economic efficiency: 1. are the efficiency benefits of interbasin transfers likely to be large? let us consider an example of a basin where its municipal users are desperately in need of more water than the basin can supply. a study by cai and mccarl (2007) develops an integrated economic-hydrological model to examine proposed interbasin transfers in texas and find that they can alleviate water shortages issues, especially for large cities. as additional water would greatly benefit all these users, their willingness to pay for water will be very high. for the basin of origin, let us assume there are some irrigators holders that would be willing to sell their water at a price above its agricultural uses. for these sellers, they are fully compensated so that seemingly if the municipality is willing to pay a higher price than the irrigators’ reservation price, economic efficiency dictates that the transfer occurs. according to a report by r.w. beck, inc. for the twdb in 2006 (r. w. beck 2006), interbasin transfers in texas can have significant net economic benefits and that “while the economic impacts are more than offset by the economic benefits which accrue to the basin of origin, all competing policy objectives must be considered in pursuing such transfers.” so the answer to the first question is that the efficiency benefits of interbasin transfers are potentially quite large. 2. who are the affected parties in the basin of origin? next, let us turn to the question of the identity and magnitude of the loss to the disadvantaged group. in the above example, the party selling their water rights are voluntarily selling their rights, so they cannot claim injury. nevertheless, as gould (1988) points out, third party effects on other downstream users in the area of origin can be substantial. moreover, they are not normally compensated. for example, with the irrigator’s water leaving the basin of origin, downstream users under the prior appropriation doctrine are deprived of runoff that returns to the basin of origin. at issue then is the magni16 figure 1 of votteler et al. (2007). 17 the luce bayou interbasin transfer project that is currently under construction transfers “existing surface water rights previously held by the city of houston in the trinity river to lake houston in the san jacinto basin” (twdb 2018). the amendments for this transfer were tied to permits and interbasin transfers granted before senate bill 1 so the junior provision did not apply in this case. texas water journal, volume 10, number 1 117interjecting economics into the surface water dialogue right holders in the basin. the objective of this process is to avoid any negative effect of amending a permit to other users. however, in the commitment to avoiding injury and respecting seniority, the bureaucratic process has become impractical and time consuming for potential buyers and sellers particularly in responding to droughts. according to the instructions of the tceq, an application is typically processed in 300 days.18 this amendment process is particularly troublesome during a drought when permit holders not using their full allocation would like to lease (temporarily sell) their water to another party at a different diversion point.19 as surface water becomes scarce and the demand for water expands, the inability to easily transfer water rights (either by short-term leases or outright sales of water rights) limits the market from allocating water to its highest value uses. how to increase the number of intrabasin transfers? in order to promote intrabasin transfers, we basically need to facilitate the transaction process. vaca et al. (2017) propose three alternatives in which the transaction process can be simplified to increase the number of intrabasin transfers. in this paper we will briefly discuss the first two alternatives and will focus on a detailed explanation of the third alternative.20 the first of these alternatives consists of changing and shortening some of the current procedures that are required to amend a water right.21 as described in vaca et al. (2017), this would involve using web 2.0 technology to inform potentially impacted parties and to accelerate the process for impacted third parties to prove up their claim for damages. particularly for short-term leases to deal with drought situations, this process could cut through the red tape. this can incentivize more buyers and sellers to participate in intrabasin transfers as they would know that they can get the water they need by the time they need it. the second alternative outlined in vaca et al. (2017) involved the implementation of watermasters in other basins. currently, 18 tceq (2017a) instructions for completing the water rights permitting application. note that this very long period is in part created by the applicants themselves who occasionally file a permit as a placeholder and leave it pending as leverage in a water dispute or for other reasons. 19 it is important to note that during drought emergencies, river authorities have been able to amend some of their rights temporarily as part of their water management plan (see tceq emergency order for the lcra in 2013). however, other users (i.e. not river authorities) that wish to sell their water would have to go through the normal amendment process. in addition to emergency amendments, senate bill 1430 approved in 2017 allows for “expedited amendments for existing water rights permits where the permit holder is off-setting freshwater use with desalinated seawater” (tceq 2018, sb 1430). senate bill 1430 intends to encourage seawater desalination. 20 for a more detailed explanation of the other alternatives, see vaca et al. (2017). 21 house bill 1964 attempts to shorten the process, but even slight changes in point of diversions require wam analysis. tude of the return flow and the economic consequence of its absence on third parties. 3. can the losers be compensated and how? while we support the elimination of the junior rights provision, we recognize the necessity for providing compensation for the area of origin. we propose that river basins and communities in texas use an arbitrator to create their own context-specific mitigation funds. the first part of this mitigation process would consist of requiring monetary compensation for the basin of origin. for instance, some western states require compensation to be paid to the local governments within the basin of origin (castleberry and acevedo 2017). these payments can be done through mitigation funds. mitigation funds can be established in different ways and can be set to compensate the losers affected by the transfer including economic and environmental costs. hanak et al. (2011) explains that these funds should consider potential employment losses, increases in social service costs and reductions in tax revenues. there are several examples of successful mitigation funds from surface water transfers in other states. for example, in an interbasin water contract in california between the metropolitan water district (mwd) and the palo verdo valley irrigation district’s (pvid), the mwd (buyer) provides a community involvement fund (cif) to address community effects (hanak et al. 2011). the cif compensates the area of origin in the form of training programs for community members, support for small business, and cash per acre-foot of water diverted (wga 2012). in nevada, areas of origin simply impose a $10 fee/acre-foot on all water that is transferred out of the county (wga 2012). another example of how a mitigation fund could work could be based on the compensation fund established after the gulf coast oil spill in 2010. in 2012, congress passed the restore act that dedicated 80% of all penalties from responsible parties to a gulf coast restoration trust fund (restore the gulf 2018). it is clearly outlined how the resources from the fund can be used to restore and protect the natural resources and the economy of the gulf coast. similar mitigation funds can be created for interbasin transfers, where the percentages of the funds are clearly established to compensate the economic and environmental costs of the transfers. problem 1.3: inadequate intrabasin transfers transfers of water within a river basin face several regulatory impediments as well. the primary impediment to transfers within a river basin is the complicated regulatory process imposed by the tceq in its effort to comply with legislative and legal constraints. the amendment process of a permit to change the use or diversion point requires the tceq to perform a technical review using the water availability model (wam) dataset to see how the amendment will affect water texas water journal, volume 10, number 1 interjecting economics into the surface water dialogue118 in addition to the highly successful rio grande watermaster program, there are an additional three22 watermasters covering various segments of river systems in the state. watermaster systems are probably not a panacea. while popular in some areas, in others there is opposition because it is costly to administer. in essence, the administrative costs may be overshadowing the efficiency gains that it generates, particularly in water abundant river systems. the third alternative is the implementation of a “watermaster lite system” designed to reduce the administration costs. watermaster lite the goal of the watermaster lite system is to ensure that water can be transferred quickly by bypassing some of the regulatory burdens set forth by the tceq permitting process but does so at a much lower cost than a full-blown watermaster system. in proposing this alternative, we recognize that its implementation would require legislative action to modify the prior appropriation doctrine as well devising an entire new set of bureaucratic procedures. we also recognize that elaborating and proposing solutions to these issues could easily entail a lengthy study in itself. in the spirit of this paper, our focus is to describe how such a novel system might work and what the economic efficiency gains it might confer. clearly, the watermaster lite system should be tried on an experimental basis to ensure it is effective before being implemented elsewhere. the economic efficiency gains of this system are intended to dramatically shorten the tceq processing time, increase market transactions, reduce transaction costs, and require less financial resources to administer than the traditional watermaster system requires. 1. how to implement the watermaster lite? the river will be divided into segments and each segment will have flow detectors installed to measure stream flow. within each segment of the river basin, the basin’s water right holders will then be divided and assigned a color based upon their seniority and their permitted acre-feet. by grouping rights by seniority into color categories, the process to make an intrabasin transfer will be simplified and at the same time, the prior appropriation doctrine will still be respected by group. in addition, in case of an extreme drought, right holders can still make a priority call within their color categories and thus the basic features of the prior appropriation system are maintained. the watermaster lite system will require the tceq to calculate all of the total water permits in the basin based off their acre-feet withdrawal limits. for example, in the brazos river basin there 22 the other three watermasters are brazos watermaster program, concho river watermaster program, and south texas watermaster program. (nueces, san antonio, and guadalupe rivers). is a total of 7,932,481 acre-feet allocated to divert.23 thereafter, water right holders would be divided into five groups. the most senior quintile of the 1,983,120 acre-feet would be categorized into the color “black;” the second most senior quintile of the 1,983,120 acre-feet would be categorized in the color “red;” the third set of junior diverters will be categorized into “orange;” the next quintile would be “yellow;” and the most junior 1,983,120 acre-feet would be categorized into “green.” under this system, the whole river basin will be grouped by the acre footage and seniority of its diverters. additionally, each river segment will be assigned a minimum flow rate corresponding to the different color categories. this system aims to create a spot market based off short-term (less than a year) changes in diversions that will be automatically granted provided three conditions are met. (1) the first condition is the flow rate in their river segment and permit type is satisfied within a 10% margin of error. the flow rate will incorporate tceq’s adopted environmental flow standards, which is the flow restriction tceq would apply to moves of diversion points under the current permitting system. (2) a second condition is that the change in diversion will incorporate stream flow losses (including evaporation effects). for example, if the original permit called for a diversion rate of 10 acre-feet daily and there was a 10% evaporation and transportation loss, the recipient would only be entitled to divert 9 acre-feet daily. (3) the permit would be subject to curtailment in the event of a senior right call. this system is better stated with an example. suppose we are dealing with a lower segment of the river basin where the stream flows are greater. diverter a, from figure 1, is the most senior water right holder in the basin and is allowed to divert 100 acre-feet annually. thereby, diverter a is assigned the color “black,” which means he/she can divert water even when the flows are less than 936 cubic feet per second (cfs). however, diverter b is a more junior water right  holder and assigned the color “yellow,” which indicates that when the flow rates are below 2000 cfs, he/she cannot divert water. in this scenario, diverter b is no longer allowed to divert water; however diverter b needs an additional 75 acre-feet for his/her crops. meanwhile, diverter a only needs 25 acre-feet. since diverter a has a senior water right and is not using all of his/her allocated share of water, under this system diverter a could lease the remaining 75 acre-feet to diverter b. such transactions would be allowed to take place on a monthly basis. for example, for a 30-day transfer, the annual rate would be prorated to the daily equivalent of the permit’s allocated amount. the watermaster lite system is proposed as an experimental option. its application would no doubt require addi23 the total number of permitted acre-feet is based on tceq (2017b). for the purpose of this exercise, we assume that all of the water rights are allocated for consumptive uses. texas water journal, volume 10, number 1 119interjecting economics into the surface water dialogue tional adjustments and should first be refined for a particular river basin with abundant water.24 the system would also need adjustments for periods of drought. to succeed during a drought, the watermaster lite system must be cheap to administer and have the flexibility to allow temporary changes in diversion points. the attraction of the watermaster lite system is that it retains many of the features of a watermaster system, but would be potentially much cheaper to administer and would have desirable self-policing attributes. also, permit holders are likely to view it as less intrusive25 than a watermaster system. problem area 2: water prices are artificially cheap and inflexible a reoccurring theme within the literature and our surface water policy research (vaca et al. 2017) revolves around the 24 for example, the number of colors could vary depending on the volume of water rights in adjoining groups. the beauty of the system is that within a color group, all pumpers are treated equally, eliminating conflicts. nevertheless, conflicts can exist if that pumper was assigned to a different group that would have gained access but was prevented by the original assignment of colors and stream flow limits. 25 this system can be less intrusive than a watermaster because it would not require the site visits and users would not be required to call in their diversions and get permission to divert. underpricing of water in texas (griffin 2011). the current price scheme of surface water is not economically efficient because it does not reflect how much water is available to use, i.e. it does not include a scarcity premium and thus water prices are artificially low. the main reason why there is no scarcity premium is related to the large amount of permitted water that river authorities sell to their customers at regulated rates based on historical costs. in many basins, river authorities typically control the bulk of diversion permits within a river basin.26 currently, the regulated nature of surface water pricing by river authorities leads to the underpricing of water for two reasons. first, it omits altogether a scarcity premium to reflect the inherent scarcity of water. second, as quasi-governmental entities, river authorities are constrained to charge rates27 that only recover their costs. consequently, the market prices observed in transactions between river authorities and their customers 26 a prominent exception is the trinity river basin where various municipalities already own significant appropriations. 27 raw water sold by river authorities or potable water provided by municipalities are based on an average of current and past infrastructure costs. this allows for water to remain underpriced. neither do they include a scarcity premium. the presence of regulated rates for the transportation, treatment, and local delivery of water is a good thing by protecting consumers from the exercise of monopoly power by wholesale providers. nevertheless, a byproduct of this regulatory scheme is that prices are too low and inflexible. [another byproduct is that water is not being conserved because the incentives are lacking.] figure 1. example of watermaster lite system: segments and diverters by color. texas water journal, volume 10, number 1 interjecting economics into the surface water dialogue120 fail to account for true scarcity and often create a shortage of unmet demand at that regulated price. figure 2 illustrates the problem. assume in the example that the river authority has available only q0 of water available, which it offers for sale to municipal users at the regulated price p0, which covers its operation and maintenance costs. note that at this price there is unmet demand equal to q1 – q0. typically, to deal with the shortage, the river authority will exercise curtailments across its customer base. economic efficiency would dictate that the water goes to its highest valued uses. if in figure 2, the transaction price were allowed to rise to p*, only users who were willing to pay this price or higher would receive the water. the difference between the regulated price p0 and p* measures in this case the true scarcity premium of the water as shown on figure 2. from an economic efficiency viewpoint, allowing the price p* to occur guarantees that only the higher valued uses—between 0 and q0—get the water and the lower valued uses—between q0 and q1—are excluded. the alternative of curtailing all uses proportionally has no mechanism to filter out the lower valued uses. the key takeaways are that if observed market prices do not include the scarcity premium, they understate the true value of water. the regulated prices coupled with rationing are neither efficient nor useful as guides for policy. price signals from properly functioning markets should fluctuate in response to droughts and furthermore should trend upward in response to population growth and economic activity. figure 3 shows an example of how prices do not vary according scarcity. this figure shows the regulated rate charged by the lower colorado river authority (lcra) to its municipal customers over the period 2010 to 2016. figure 3 also shows the palmer drought severity index (pdsi) drought index showing the most severe drought in history in 2011. note that lcra’s prices, which were based solely on operational and infrastructure costs,28 showed no response to the drought. paradoxically, when water was abundant in 2015-16, regulated rates actually increased. in contrast, figure 4 shows in theory how prices should behave in response to economic growth and droughts. prices should increase sharply during droughts while maintaining a relative stable but gradual trend when there are no droughts. population and economic growth should increase the demand of water over time, which means that prices should have an upward trend. the second reason that surface water prices do not include a scarcity premium refers to limited opportunities to trade surface water rights. as explained in the water allocation section, there are regulatory barriers that can reduce the number of transfers of water. not allowing these transactions during a drought and relying mostly on river authorities (with regulated rates) prevents water to be priced at its true scarcity price (p* in figure 2). in order to promote economically efficient pricing of surface water, policy makers have one of two options. the first option is to create the conditions that give rise to a vibrant water market by doing the three things outlined above: (1) encouraging conjunctive use of groundwater and surface water (2) promoting interbasin transfers, and (3) promoting intrabasin transfers. 28 lcra (2014) shows that its rates are calculated as the ratio of cost of services divided by the number of billing units. the costs of services include labor, operation and maintenance, and debt service. by regulation, river authorities such as lcra are not allowed to charge rates that reflect water scarcity per se but only to recover their operational and infrastructure costs. figure 2. regulated vs. economic efficient prices. texas water journal, volume 10, number 1 121interjecting economics into the surface water dialogue with the addition of these added sources of supply, market prices should more likely approximate figure 4 instead of figure 3. there is, however, another option that, while less preferable to the authors, will nevertheless promote economically efficient pricing. let us now turn to the option of a water tax. regional water taxes: that vary with water availability by region. a water tax is designed to address the problem that water prices are artificially cheap and inflexible during droughts. first, the water tax can solve the lack of a scarcity premium because it would vary with water availability by region and can be altered by the state accordingly to address long-term water needs. second, as the value of the tax will automatically vary figure 3. lcra firm water rate vs. pdsi. source: lcra 2015, lcra 2017, water data for texas 2017. figure 4. hypothetical price fluctuations in a well-functioning market. texas water journal, volume 10, number 1 interjecting economics into the surface water dialogue122 with monthly water availability, it will increase water prices during droughts. thus, a water tax will act as a water scarcity signal and create incentives to conserve.29 in fact, olmstead et al. (2009) suggest that using price mechanisms to allocate scarce water supply is more cost effective than implementing other programs for water conservation. it is important to emphasize that the water tax will not solve the water allocation problem because it will not directly incentivize water transactions nor will it remedy existing administrative problems. its sole function is to promote conservation. 1. how the tax would work a) the tax should vary with water availability the most important characteristic of the tax is that it must vary with water availability, reflecting the true value of water in the short and long term. this means that the tax should increase when there is less water available like in the case of a drought. another feature is that the tax should vary regionally to reflect water availability. as shown in figure 5, a regional drought indicator, the pdsi can be used as a measure of water avail29 note that this proposal differs fundamentally from the increasing block tariff schedules implemented by many cities whereby high use residential users pay more per thousand gallons. the increasing block tariffs typically do not vary with overall water availability as our tax would and instead act as a mechanism to spread high fixed costs onto high residential users with swimming pools and large lots with sprinkler systems. the latter do not vary over time to incentivize conservation during droughts. ability to determine the value of the tax.30 according to water data for texas (2017), the pdsi index is “a meteorological drought index based on recent precipitation and temperature and is used to assess the severity of dry or wet spells of weather.” the pdsi generally varies between -6 and +6, where negative values denote dry spells. in recent years, the lowest value that the pdsi has reached in texas was in september 2011 in the low rolling plains (-6.99). the proposed tax contemplates one major exemption.31 the proposed tax offers an 80% discount for agricultural users. charging a lower tax for agricultural users can be justified by the fact that agricultural users usually face lower water rates (e.g. from interruptible contracts with river authorities), which would mean that even if they had the same price elasticity as that of other consumers, the price increase due to the tax will affect them disproportionally. 30 although the pdsi may not be the hydrologically perfect measure of water supply considering the water in reservoirs, the pdsi does track in advance the changes in water availability in reservoirs. for example see figure a1 in appendix 1. as an alternative to the pdsi based on nine regions, one could consider computing a pdsi type index for the sixteen state water planning jurisdictions because it might facilitate better water planning and administration. thus, the illustration here is simply designed to lay out how such an index could be used to determine tax rates that vary regionally. 31 in addition to an exemption to agricultural users, we propose that the rio grande watermaster be exempt from the tax because it is a basin that works differently from other basins in texas. it does have a functioning water market, which means that the price of water in this region already implicitly includes a scarcity premium. we also propose to exclude 1 acre-feet of water/ month to all permit holders. this exemption reduces the impact and administration burden on small users figure 5. texas regions for pdsi. source: water data for texas – pdsi october 2016. texas water journal, volume 10, number 1 123interjecting economics into the surface water dialogue b) payment options and enforcement mechanisms in order to facilitate payments and revenue collection, all water users will have access to an online account where they will report their monthly water consumption to the tceq, who will act as the tax collector.32 this account will show the tax rate for that month and the total amount owed by the user. to have the optimal effect on users’ behavior, monthly bills, rather than quarterly or annual bills, are preferable. 2. tax formula and estimation of scenarios the main objective of the tax is to reflect the true scarcity of water and thereby encourage the optimal level of conservation. the proposed tax can be calculated using equation 1. this equation shows that the value of the tax depends on three 32 the funds could be used for general revenue purposes or earmarked for special purposes factors: (1) the numerator (y), (2) a fixed parameter (z) in the denominator, and (3) the pdsi. after simulating with different parameter numbers, we use a value of 7.1 for (z), which in absolute values is slightly larger than the lowest pdsi (during the drought of 2011). in vaca et al. (2017) we calculated three base scenarios with values of y of 50, 100, and 200. for expositional purposes here, we adopt y=100. tax rt =y/(z+pdsi rt ) equation 1 in equation 1, tax represents the water tax per acre-foot for a region r in a month t. the tax for agricultural users will follow the same equation but be only 20% of the calculated value generated by equation 1. we estimate the corresponding tax values, water conservation, and revenue that would have been figure 6. tax values by region (2010 – jan 2017) y=100. source: capstone team estimations. texas water journal, volume 10, number 1 interjecting economics into the surface water dialogue124 generated in the period 2010–2016 for the nine33 regions in texas. a) tax values the estimation of the tax that each region would have faced since 2010 shows two important points. the first is that the tax structure allows the value to vary considerably with water availability and that the starting value of the tax has an important effect in the average values and level of variability of the tax. the variability of the tax with water availability is also showed graphically as the tax values dramatically increase in 2011 (the year of the drought) and the values decrease in wet years like 2016 (see figure 6). the second important conclusion from these estimations is that most of the time, when water is abundant, the tax is relatively low. whereas, during drought conditions the value of the tax can reach very large values, which is a desirable feature of the tax. if water is scarce, it should cost more to encourage consumers to conserve. although the tax can reach high values, these peaks rarely occur, and the majority of the regions would face low tax values each month since 2010. for a y=100, 83.3% of tax values would have been less or equal to $30/acrefoot.34 conversely, the tax exceeded $100/acre-foot in only 2.2% of the cases. b) water conservation applying a water tax will allow users to face the real scarcity cost of water in their region, which will result in water conservation.35 this means that the tax will achieve one of its objectives, which is to reduce water consumption, especially in drought conditions like 2011. based on the values of the tax previously calculated, we can estimate the percentage reduction in water consumption for each month. equation 2 shows that 33 as the rio grande is exempted from the fee, the estimations exclude the trans pecos regions, which mean that estimations are done only for nine of the 10 regions. 34 for a starting value of $50, 91% of the tax values would have been below $20/acre-foot and for a starting value of $200, 73.7% of the tax values would have below $50/acre-foot. 35 there are other policy alternatives that can result in conservation, such as mandatory rationing. as rationing can achieve a precise percentage of conservation, the fact that everyone had to conserve the same proportion makes it economically inefficient. for example, let’s consider the mandatory effect of rationing for two users. the first user is an environmentally concerned citizen and has already reduced her water consumption to a minimum. the second user is not so concerned with environment: has inefficient irrigation practices for his yard and sometimes even leaves the faucet running because he forgot. rationing would force equally both users to conserve an x%, which would be nearly impossible for user 1 while user 2 could conserve more than that %. the tax solves this problem by making water more expensive and thus leading water to its highest and best use automatically. water conservation depends on the price elasticity of demand for water, the value of the tax and the original water price.36 conservation (%) = elasticity × (tax/(water price) × 100% equation 2 for this estimation, the short run water price elasticity37 used is 0.38. water conservation resulting from the tax can be equivalent to increasing water supply by a certain percentage as it decreases the water deficit. for instance, in 2011 a tax with a y=100 would have been equivalent to an increase in supply of surface water by 13.7% for non-agricultural uses and 11.9% for agricultural users. the average water savings for non-agricultural users based on the estimations of the period 2010 to 2017 is 4.4%. clearly, figure 6 shows that a state water tax that varies regionally and monthly could solve the problem that water prices are artificially underpriced and inflexible during droughts. the resulting conservation (figure 7) during droughts will go a long way toward forcing society to use water more efficiently. c) tax revenue collection as any other tax, the water tax will generate revenue for the state of texas. as the primary purpose of the tax is to reflect water scarcity and promote conservation during droughts, how revenues of the tax are spent is not the main priority and what agency collects the tax does not have an impact on whether the tax is an economically efficient tool or not. however, we propose that the tax be collected by tceq as it is the primary regulatory agency for surface water. in addition, as the revenue comes from water users, it would be good to use these resources for water purposes. one alternative would be for the tax revenues to be put in a fund to cover operational expenses for agencies like tceq and twdb. another alternative would be to place all revenues of the tax in a fund like state water implementation fund for texas (swift) that is used for financing water infrastructure projects. conclusions the intention of the vaca et al. (2017) report, surface water regulation in texas: problems and solutions, was to stimulate discussion on the pressing policy issues of surface water management in texas. for purposes of policy analysis, we have adopted the conceptual lens of economic efficiency. we recognize that the inability to fully compensate the losers may cause policy makers to choose equity over economic efficiency. it is, nevertheless, a useful exercise to apply the conceptual 36 for this estimation we use an approximation of wholesale water rates for residential users ($3/1000 gallons) and for other users we use the lcra rates. 37 see espey et al. (1997). texas water journal, volume 10, number 1 125interjecting economics into the surface water dialogue lens of economic efficiency to surface water policy to look at the benefits foregone to protect various interest groups. this paper focuses on how we can use existing water supplies more efficiently by improving water allocation and water pricing. to improve water allocation and to move water from lower valued uses to higher valued uses, we identified the following three mechanisms: (1) encouraging conjunctive water use, (2) removing roadblocks to interbasin transfers and (3) facilitating intrabasin transfers. the latter proposed a watermaster lite system. to correct the current water pricing system that undervalues water and is inflexible to droughts, we present two alternatives—a water tax and an active water market. in contrast to the current artificially low and inflexible pricing system, water taxes that vary regionally in response to drought conditions could be a powerful force for conservation. the other alternative, creating an active water market, is perhaps an even more daunting task since it will require reforming legal and administrative procedures to facilitate trading of water. nevertheless, we believe that a vibrant water market is superior to a tax because it will solve both the issues of water pricing as well as the water allocation problem. references bhojwani s, topolski k, mukherjee r, sengupta d, el-halwagi m. 2019. technology review and data analysis for cost assessment of water treatment systems. science of the total environment. 651:2749–2761. brady r, beckermann w, capps a, kennedy b, mcgee p, northcut k, parish m, qadeer a, shan s, griffin j. 2016. reorganizing groundwater regulation in texas. capstone project, bush school of governmentreport to state comptroller, glenn hegar. cai y, mccarl b. 2007. economic, hydrologic and environmental appraisal of texas inter-basin water transfers: model development and initial appraisal. college station (texas): texas water resource institute. tr-301. 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[accessed 2017 march 22]. available from: https://waterdatafortexas.org/drought/pdsi/monthly?time=2016-10. winter tc, harvey jw, franke ol, alley wm. 1998. ground water and surface water a single resource. denver (colorado): u.s. geological survey. 79 p. u.s. geological survey circular 1139. http://www.ppic.org/publication/managing-californias-water-from-conflict-to-reconciliation/ http://www.ppic.org/publication/managing-californias-water-from-conflict-to-reconciliation/ https://www.lcra.org/water/water-supply/documents/cost-of-service-fact-sheet-1-14-14.pdf https://www.lcra.org/water/water-supply/documents/cost-of-service-fact-sheet-1-14-14.pdf https://www.lcra.org/water/water-supply/documents/cost-of-service-fact-sheet-1-14-14.pdf http://www.lcra.org/water/water-supply/water-supply-contracts/documents/2015-11-6-lcra-water-rates.pdf http://www.lcra.org/water/water-supply/water-supply-contracts/documents/2015-11-6-lcra-water-rates.pdf http://www.lcra.org/water/water-supply/water-supply-contracts/documents/2015-11-6-lcra-water-rates.pdf https://www.lcra.org/water/water-supply/water-supply-contracts/pages/default.aspx https://www.lcra.org/water/water-supply/water-supply-contracts/pages/default.aspx https://www.lcra.org/water/water-supply/water-supply-contracts/pages/default.aspx http://texaslivingwaters.org/wp-content/uploads/2013/03/tlw-news-3-12-12.pdf http://texaslivingwaters.org/wp-content/uploads/2013/03/tlw-news-3-12-12.pdf http://demographics.texas.gov/resources/publications/2014/2014-11_projectionbrief.pdf http://demographics.texas.gov/resources/publications/2014/2014-11_projectionbrief.pdf http://demographics.texas.gov/resources/publications/2014/2014-11_projectionbrief.pdf https://www.restorethegulf.gov/history/about-restore-act https://www.restorethegulf.gov/history/about-restore-act https://www.tceq.texas.gov/assets/public/response/drought/emergency-mods/01-29-13-lcra-order.pdf https://www.tceq.texas.gov/assets/public/response/drought/emergency-mods/01-29-13-lcra-order.pdf https://www.tceq.texas.gov/assets/public/response/drought/emergency-mods/01-29-13-lcra-order.pdf https://www.tceq.texas.gov/permitting/water_rights/wr-permitting/wrwud https://www.tceq.texas.gov/permitting/water_rights/wr-permitting/wrwud https://wayback.archive-it.org/414/20180904115302/https://www.tceq.texas.gov/news/tceqnews/features/85th-texas-legislative-highlights#sb1430 https://wayback.archive-it.org/414/20180904115302/https://www.tceq.texas.gov/news/tceqnews/features/85th-texas-legislative-highlights#sb1430 https://wayback.archive-it.org/414/20180904115302/https://www.tceq.texas.gov/news/tceqnews/features/85th-texas-legislative-highlights#sb1430 https://wayback.archive-it.org/414/20180904115302/https://www.tceq.texas.gov/news/tceqnews/features/85th-texas-legislative-highlights#sb1430 https://comptroller.texas.gov/economy/50state/ https://comptroller.texas.gov/economy/50state/ http://www.twdb.texas.gov/newsmedia/featured/projects/luce_bayou/index.asp http://www.twdb.texas.gov/newsmedia/featured/projects/luce_bayou/index.asp http://www.twdb.texas.gov/newsmedia/featured/projects/luce_bayou/index.asp https://waterdatafortexas.org/drought/pdsi/monthly?time=2016-10 https://waterdatafortexas.org/drought/pdsi/monthly?time=2016-10 texas water journal, volume 10, number 1 127interjecting economics into the surface water dialogue world bank data. 2018. gdp current us$. the world bank. [accessed 2018 may 8]. available from: https://data. worldbank.org/indicator/ny.gdp.mktp.cd?name_ desc=true. wurbs ra. 2015. sustainable statewide water resources management in texas. journal of water resources planning and management. 141(12). [wga] western governors associations. 2012. water transfers in the west. western governors association. [accessed 2017 april 6]. available from: http://westgov.org/images/ editor/water_transfers_in_the_west_december_2012. pdf. appendix 1 although the pdsi may not be the hydrologically perfect measure of water supply considering the water in reservoirs, the pdsi does track in advance the changes in water availability in reservoirs. figure a.1 shows how that the pdsi moves in the same direction as the reservoir storage. the correlation coefficient between these two variables is 0.73 and is statistifigure a.1 pdsi and reservoir storage. source: date from water data for texas 2017. table a.1. regression analysis of pdsi and reservoir storage. cally significant at the 1% level. in addition, table a.1 shows the results of two simple regressions between these variables. the first line shows the results for the regression of the pdsi on reservoir storage with an r2 of .542. the second line also includes the lag of the pdsi (1 month before) on reservoir storage and the r2 increases to .64, which means that pdsi has power to predict the next month of reservoir storage. regression r2 percentage storage on pdsi .542 percentage storage on pdsi and one month lagged pdsi .640 https://data.worldbank.org/indicator/ny.gdp.mktp.cd?name_desc=true https://data.worldbank.org/indicator/ny.gdp.mktp.cd?name_desc=true https://data.worldbank.org/indicator/ny.gdp.mktp.cd?name_desc=true http://westgov.org/images/editor/water_transfers_in_the_west_december_2012.pdf http://westgov.org/images/editor/water_transfers_in_the_west_december_2012.pdf http://westgov.org/images/editor/water_transfers_in_the_west_december_2012.pdf page 113, wurbs 2015 page 113, vaca et al. 2017 page 113, 2017 page 113, 2018 page 113 2013 page 115 vaca et al. 2017 page 114 brady et al. 2016 page 114 2013 page 114 2010 page 114 2007 winter (1998) sophocleous (2002) bhojwani et al. (2019) (mckinney 2012) (brady et al. 2016) votteler et al. (2007) cai and mccarl (2007) (r. w. beck 2006), gould (1988) votteler et al. (2007). (twdb 2018) (castleberry and acevedo 2017). hanak et al. (2011) (hanak et al. 2011). (wga 2012) (wga 2012). (restore the gulf 2018) vaca et al. (2017) vaca et al. (2017) vaca et al. (2017) tceq (2017a) tceq 2018 vaca et al. (2017) tceq (2017b). (vaca et al. 2017) (griffin 2011) lcra (2014) lcra 2015 lcra 2017 water data for texas 2017 olmstead et al. (2009) water data for texas (2017) vaca et al. (2017) vaca et al. (2017) espey et al. (1997) 84th texas state legislature: summaries of water-related legislative action texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 6 number 1 2015 texas water journal http://texaswaterjournal.org volume 6, number 1 2015 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources staff editor kristina j. trevino, ph.d. cover photo: anzalduas dam in hidalgo county. photo courtesy of the texas water development board. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 6, number 1, pages 103–120 editor-in-chief ’s note: september 1 of every odd-numbered year is the date when new legislation from the most recent session of the texas legislature typically goes into effect. with this in mind, the texas water journal invited 4 organizations that work closely with the texas legislature to provide their take on the changes to texas water policy and law that were made during the 2015 session. the opinions expressed in these summaries are the opinions of the individual organizations and not the opinions of the texas water journal or the texas water resources institute. organizations: • texas water conservation association • sierra club, lone star chapter • texas alliance of groundwater districts • texas water infrastructure network commentary: 84th texas state legislature: summaries of water-related legislative action texas water journal, volume 6, number 1 citation: robbins d, steinbach sa, kramer k, schlessinger sr, fowler pl. 2015. 84th texas state legislature: summaries of water-related legislative action. texas water journal. 6(1):103-120. available from: https://doi.org/10.21423/twj.v6i1.7030. © 2015 dean robbins, stacey allison steinbach, ken kramer, sarah rountree schlessinger, perry l. fowler. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https:// creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v6i1.7030 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 6, number 1 104 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action terms used in paper short name or acronym descriptive name asr aquifer storage and recovery cmar construction manager-at-risk dfc(s) desired future condition(s) ercot electric reliability council of texas gcd(s) groundwater conservation district(s) hb house bill puc public utility commission of texas sb senate bill soah state office of administrative hearings swift state water implementation fund for texas tagd texas alliance of groundwater districts tceq texas commission on environmental quality tdlr texas department of licensing and regulation tds total dissolved solids twca texas water conservation association twdb texas water development board txwin texas water infrastructure network texas water journal, volume 6, number 1 10584th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action the “groundwater session” like the 83rd session, it was no surprise when the 84th legislature was inundated with water bills. this time, however, the main focus was on groundwater management rather than state water plan funding. with the latter issue largely addressed through legislative action and voter approval in 2013, legislators turned their attention to some long-standing groundwater policy issues this year. from the perspective of the texas water conservation association (twca), those groundwater bills and the river authority sunset bill comprised the bulk of high-priority tracked legislation that made it to the governor’s desk. session statistics in the house, the natural resources committee continued to hear most of the bills affecting twca members. though the committee had a number of familiar faces, both the chair, representative jim keffer, and vice-chair, representative trent ashby, were new to that committee’s leadership this session and provided a great opportunity for collaboration and new perspectives. other committee members included representatives dennis bonnen, dewayne burns, james frank, kyle kacal, tracy king, lyle larson, eddie lucio iii, poncho nevárez, and paul workman. similarly, freshman senator charles perry led the newly created agriculture, water, and rural affairs committee that addressed the bulk of the water bills considered this session. senator judith zaffirini served as vice-chair of the 7-member committee that also included senators brandon creighton, bob hall, juan “chuy” hinojosa, lois kolkhorst, and josé rodríguez. all told, legislators filed 6,276 house and senate bills this session, up more than 400 bills from the session before. of those, just over 20% passed, compared to a 24% passage rate during the 83rd. twca tracked over 350 bills this session, including 142 priority bills, numbers that are nearly identical to our tracked bill counts in 2013. thirty-four high-priority bills made it to the governor this year, and we have outlined 23 here in this article. for more information about twca and legislation that we tracked this session, visit twca’s website at www.twca.org. twca groundwater committee on the groundwater front, the beginning of the 84th felt like something of a “do over” from previous sessions, with the refiling of numerous bills that failed to pass in the 83rd or before. 84th legislative session wrap-up by dean robbins, stacey allison steinbach,texas water conservation association but the end of the 84th looked a lot different from the end of the 83rd: legislators passed more than 20 separate pieces of groundwater legislation this year but sent just 2 groundwater bills to the governor’s desk in 2013. one significant difference between the 2 sessions was the stakeholder work that occurred before the 2015 session. shortly after the close of the 83rd legislature, twca established a “groundwater committee” to address issues that were left on the table at sine die. more than 60 twca members, representing numerous stakeholder groups, joined the committee and began the arduous process of tackling controversial groundwater issues such as aquifer storage and recovery (asr), brackish groundwater management, long-term groundwater permitting, appeals of desired future conditions (dfcs), contested case hearings on groundwater permits, apprentice programs for well drillers and pump installers, the state auditor’s office review of groundwater conservation districts (gcds), and cleaning up a very fractured chapter 36 of the water code. the committee formed multiple subcommittees and drafting groups, and met frequently throughout 2013 and 2014, ultimately achieving consensus on 7 pieces of draft groundwater legislation. to reach consensus, 90% of the voting members had to support the draft—a noteworthy accomplishment considering the diversity of stakeholders on the committee. the committee and twca staff worked closely with house and senate leadership in an effort to move these bills through the legislative process, and 6 of them made it to the governor’s desk. summaries of those bills are included in the next section, with summaries of twca’s other high priority bills in the following section. twca groundwater committee bills house bill (hb) 655: aquifer storage and recovery (larson/perry) chapters 11 and 27, water code, are amended to streamline permitting requirements for aquifer storage and recovery (asr) projects, making it easier and more cost efficient to initiate an asr project. the bill gives the texas commission on environmental quality (tceq) exclusive jurisdiction over asr projects so long as the water produced by the project does not exceed the amount authorized for withdrawal by the tceq. withdrawals above the amount authorized by the agency will be subject to a gcd’s spacing, production, and permitting rules and fees, as applicable. all wells will continue to be subject to gcd registration requirements. the bill also clarifies that a surface water right amendment is not needed to store appropriated surface water in an asr http://www.twca.org texas water journal, volume 6, number 1 106 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action project prior to beneficial use, an important amendment as the prior language was a significant hindrance to asr projects. finally, the bill outlines water quality and quantity considerations that must be made by the tceq, as well as reporting and monitoring requirements that must be followed by project developers. hb 930: tdlr bill (miller/perry) chapters 1901 and 1902, occupations code, are amended to authorize the texas department of licensing and regulation (tdlr) to reinstate apprentice programs for water well drillers and pump installers. tdlr abandoned earlier versions of these programs in 2012 after it determined the agency lacked the requisite statutory authority to implement them. hb 1221: sellers’ disclosure bill (lucio iii/estes) chapter 5, property code, is amended to require a seller of residential property to disclose whether any portion of the property is located in a gcd or a subsidence district. hb 2179: contested case hearings bill (lucio iii/ perry) chapter 36, water code, is amended to streamline and clarify permit hearings processes before gcds. hb 2767: chapter 36 clean up bill (keffer/perry) chapter 36, water code, is amended throughout to make corrective changes and clarifications necessitated by the many amendments made to the chapter over the past decade. senate bill (sb) 854: permitting bill (zaffirini/lucio iii) chapter 36, water code, is amended to require a gcd to automatically renew a production permit provided that prescribed conditions are met and no conditions have changed. if the holder of a permit requests a change that requires an amendment, the existing permit remains in effect until the amendment process is completed. a gcd may initiate an amendment to a permit in accordance with the gcd’s rules. other bills of interest hb 30: brackish groundwater (larson/perry) chapter 16, water code, is amended to require the texas water development board (twdb) to further study the development of brackish groundwater, including the identification and designation of brackish groundwater production zones that can be used to significantly reduce the use of fresh groundwater. the twdb must determine amounts of brackish groundwater that may be produced in a zone over a 30and 50-year period. certain areas are excluded from study. studies must be completed by 2022. regional planning groups must identify opportunities for and the benefits of developing largescale desalination facilities for seawater or brackish groundwater in designated zones. hb 200: appeal of desired future conditions (keffer/ perry) chapter 36, water code, is amended to define “best available science;” to add “in order to protect property rights, balance the development and conservation of groundwater to meet the needs of this state, and use the best available science in the development of groundwater” to the purposes of the chapter; to limit a district’s recovery of attorneys fees to those issues on which the district prevails; to establish a contested case hearing process for the appeal of a dfc via a hearing at the state office of administrative hearings (soah); and to repeal the process for appeal of a dfc to the twdb. hb 1232: texas water development board mapping (lucio iii/estes) the twdb, not later than december 31, 2016, must conduct a study of the hydrology and geology of confined and unconfined aquifers in texas to determine quality and quantity, whether those aquifers are tributary or non-tributary, their contributions to surface water, and their contributions to other aquifers. hb 1378: financial reporting of debt information (flynn/bettencourt) chapter 140, local government code, is amended to require political subdivisions to annually compile and report certain comprehensive financial information. the information must either be posted on the political subdivision’s website or provided to the comptroller for posting. alternatives are provided for a municipality with a population of less than 15,000 or a county with a population of less than 35,000. a district as defined by section 49.001, water code, satisfies the requirements if the district complies with the requirements in chapter 49, subchapter g, relating to audit reports, affidavits of financial dormancy, and annual financial reports, and submits the financial documents to the comptroller. hb 1665: notice to property owners along impoundments (bonnen/kolkhorst) chapter 5, property code, is amended to require notice of water level fluctuations to purchasers of residential or commercial property adjoining an impoundment with a capacity of at least 5,000 acre feet. hb 1902: graywater regulation (howard/zaffirini) the health and safety code and the water code are amended to add a definition of “alternative on-site water” texas water journal, volume 6, number 1 10784th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action and to expand tceq’s authority to adopt and implement minimum standards for the indoor and outdoor use and reuse of treated graywater and alternative on-site water. hb 1919: invasive species (phillips/estes) chapter 66, parks and wildlife code, is amended to exempt certain water transfers by a political subdivision from prohibitions and permitting requirements associated with the transfer of invasive species into water of this state. hb 2031: marine seawater desalination (lucio iii/ hinojosa) the bill amends chapter 11, water code, to exempt the diversion and use of marine seawater with total dissolved solids (tds) of more than 10,000 milligrams/liter from permitting requirements. the tceq is directed to permit by rule bed and banks authorizations for the movement of marine seawater. chapter 16, water code, is amended to further encourage marine seawater desalination projects. a new chapter 18, water code, is added to provide authorization to political subdivisions for marine seawater projects, to further define the jurisdiction of state agencies over these projects, and to require streamlined permitting processes for them. the health and safety code is amended to streamline tceq approvals of desalination projects providing potable water. hb 3357: notice of political subdivision meetings (lucio iii/eltife) the government code is amended to authorize a political subdivision to post notice of a meeting on its website as an alternative to the requirement to provide notice to the county clerk. hb 4097: seawater desalination projects (hunter/ kolkhorst) the health and safety code is amended to require the tceq to adopt rules for the use of desalinated seawater for non-potable uses. the utilities code is amended to require a study of infrastructure needs for the transmission of desalinated seawater and the demand response potential of seawater desalination projects. chapter 11, water code, is amended to authorize diversions of water from the gulf of mexico for industrial purposes without notice or an opportunity for a contested case hearing. water availability requirements are also waived, and the tceq may include environmental flows provisions. chapter 26, water code, is amended to establish procedures for the issuance of permits to dispose of brine into the gulf of mexico from the desalination of seawater as part of an industrial process. chapter 27, water code, is amended to authorize a general permit for an injection well for the disposal of brine produced by the desalination of seawater. sb 523: sunset review of river authorities (birdwell/ keffer) chapter 325, government code, is amended to subject 18 entities listed in the legislation to a limited review under the texas sunset act. the entities may not be abolished. each entity must pay the cost incurred by the sunset commission in performing a review. a political subdivision reviewed by the commission under this bill may not be required to conduct a management audit by the tceq. conforming amendments are made to various chapters of the special district local laws code and a schedule for review is established. sb 695: coastal barrier system study (taylor/faircloth) a joint interim committee is established to study the feasibility and desirability of creating and maintaining a coastal barrier system to prevent storm surge damage. sb 709: environmental permitting procedures (fraser/ morrison) chapter 2003, government code, is amended for certain tceq-contested cases referred to soah, the bill limits issues that may be considered and establishes timelines for completion of the proceeding. it also establishes that the applicant’s filing, the executive director’s preliminary decision, and any other supporting documentation establish a prima facie demonstration that the draft permit meets all state and federal requirements and issuance of the permit, if consistent with the draft, would protect human health and safety, the environment, and physical property. criteria for rebutting such a demonstration are provided. the legislation applies to applications under chapters 26 & 27, water code, and to chapter 361, health and safety code. related changes are made to chapter 5, water code. sb 912: wastewater spill reporting exemption (eltife/crownover) chapter 26, water code, is amended to exempt from reporting by local governments certain accidental spills of wastewater that have a volume of 1,000 gallons or less. sb 1148: economic regulation of water and sewer service (watson/geren) numerous changes are made to chapter 13, water code, relating to the water and wastewater rate jurisdiction of the public utility commission (puc). changes relate to disclosure by a municipally owned utility, required notices, time lines for rate cases, and procedures for emergency orders. sb 1267: administrative procedure act (estes/clardy) this bill makes comprehensive changes to procedures for contested case hearings at soah. texas water journal, volume 6, number 1 108 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action sb 1812: eminent domain database (kolkhorst/geren) chapter 2206, government code, is amended to require the comptroller to create and make accessible on an internet website an eminent domain database for public and private entities authorized to exercise the power of eminent domain. the database must be updated at least annually. not later than february 1 of each year, these entities must provide prescribed information to the comptroller. penalties are established for non-compliance. texas water journal, volume 6, number 1 10984th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action long-time observers of the texas legislature have noted that when state legislators tackle a major public policy issue in 1 legislative session, they rarely put that issue back on the front burner in the next regular session. such was the case with water in the 84th texas legislature. after proposing major new state funding for water projects in 2013, approved by the voters as a state constitutional amendment, the legislature in 2015 did not make water resources a priority topic. important water bills were enacted, but they represented an evolution, not a revolution, in state water policy. furthermore, while texas is making progress on water conservation and efficiency—and some new bills add to that progress, water development continues to be the major impetus for water legislation, and water suppliers and economic interests seeking to gain from new water projects continue to play a prime role in the politics of water. nevertheless, these development interests were not totally successful in 2015. an informal alliance among rural interests, east texas legislators, “tea party” conservatives, and environmental groups, for example, stopped the infamous water “gridzilla” proposal for turning texas into a statewide plumbing system. groundwater and aquifer storage and recovery (asr) in the 2015 session the water topic that generated the most attention and largest number of water bills passed was groundwater management. a number of bills addressed issues left unresolved at the end of the 2013 session, including major subjects such as brackish groundwater development, aquifer storage and recovery (asr), and groundwater district operations and processes. there is an ongoing tension between the statutory declaration made several years ago that “groundwater districts are the preferred means of groundwater management” and the unwillingness of many legislators to give districts the powers, financial resources, and freedom to carry out their mission effectively. certainly there are legitimate questions about whether single-county districts that only manage parts of an aquifer (the largest number of districts in the state) are the best way to oversee these vital water sources. however, the legislature took reasonable steps a decade ago to establish a balance between a heavy reliance on single-county districts and the need for aquifer-wide management by creating the joint planning process for districts overlying the same aquifer. debate over that process aside, the fact is that groundwater districts have had to fight hard to maintain existing authority in recent legislative sessions from a disparate group of interests, including groundwater marketers, some urban water utilities, oil and gas companies, and some landowners asserting absolute rights of groundwater ownership. that continued to be the case in 2015, although some conflict was ameliorated by a negotiating process conducted under the auspices of the texas water conservation association (twca) during the interim following the 2013 session. that process produced a number of draft groundwater bills that were enacted into law in 2015, along with some other legislation that, with some exceptions, reflected compromises among the interests. several groundwater bills dealt primarily with groundwater conservation district (gcd) operations and processes. these included: • house bill (hb) 200 made changes to the process by which groundwater districts determine desired future conditions (dfcs) for aquifers under their management and set out detailed procedures for challenges to those dfcs • hb 2179 set out in more detail the process for contested case hearings on applications for permits issued by groundwater districts and the specific manner in which the administrative law judge conducting a hearing and the district board interacts • hb 2767 made a number of updates and minor changes to chapter 36 of the texas water code (which governs most groundwater districts) but also established detailed procedures for an “affected person” to challenge failure of a groundwater district to take a number of actions to protect the groundwater sources for which it is responsible, including failure to adopt or update dfcs • senate bill (sb) 854 established a requirement that operating permits issued by a groundwater district be automatically renewed, subject to certain conditions, but allowed a district to initiate amendments to such operating permits these bills taken together seem to indicate a desire by legislative leaders to be more “directive” in determining how gcds should operate. on the one hand, this limits the flexibility of the districts. on the other hand, the additional specifics may lessen some controversies over groundwater district actions (or in some cases inaction) because certain procedures and powers have been clarified. however, continued pressure for groundwater development likely means that fights over groundwater use will continue or intensify. that situation was evident in the legislative fight over whether and how to bring certain portions of the trinity aquifer (primarily in hays county) under management by a groundwater district. the threat of development of a here-tofore unregulated part of the trinity eventually resulted—after last-minute legislative drama—in the barton springs-edwards aquifer conservation district in southern travis and hays sierra club: evolution, not revolution, in water policy by ken kramer, water resources chair, lone star chapter, sierra club texas water journal, volume 6, number 1 110 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action counties being given (through hb 3405) jurisdiction over the part of the trinity aquifer within its territory. another fight over groundwater management manifested itself in hb 2647—legislation that, although compromised during the process, sought to restrict the ability of groundwater districts to limit groundwater production used for power generation or mining. in a somewhat surprising move, the governor vetoed that legislation on the grounds that allowing the state to give priority to 1 class of groundwater users might abridge the rights of other groundwater users and that any such decisions should be made at the local level based on sound science and public input. although there were other groundwater bills, probably the 2 most important bills related to this water resource enacted in 2015 were hb 30 and hb 655. the bills focus respectively on 2 water supply options: brackish groundwater development and asr. texas has abundant brackish groundwater sources, according to texas water development board (twdb) estimates. however, it is not always clear how and where those brackish groundwater sources may be developed and used without, for example, affecting freshwater sources or having other impacts. hb 30 will move the state forward in being able to make those determinations. the legislation, among other things, requires the twdb, working together with groundwater districts and stakeholders, to identify and designate brackish groundwater “production zones” in certain parts of the state that are most appropriate for development of that resource. specific areas of focus for research to make those initial determinations, as noted in hb 30, are the portion of the carrizo-wilcox aquifer between the colorado river and the rio grande, the gulf coast aquifer, the blaine aquifer, and the rustler aquifer. one of the most positive things about the passage of hb 30 was the fact that an appropriation of $2 million to the twdb for brackish groundwater studies became effective with the enactment of this new law. in a testament to the remaining political strength of groundwater districts at the capitol, initial provisions of hb 30 that would have limited the authority of groundwater districts to manage brackish groundwater were dropped before passage of the bill. the power of groundwater districts was diminished somewhat, however, by the passage of hb 655—the “asr bill.” asr, where either surface water or groundwater is injected into an aquifer for storage and withdrawal later when needed, is getting increased attention as a water supply option, spurred by a successful asr project undertaken by the san antonio water system. asr, where feasible, has major advantages over storage of water in surface water reservoirs in texas, where high evaporation rates and eventual sedimentation result in major water loss. the thrust of hb 655 was to streamline the process for review and approval of asr projects, including the elimination of outmoded requirements in the permitting process at the texas commission on environmental quality (tceq). a potential complication with hb 655 is that it eliminated any authority for groundwater districts to govern injection or withdrawal of water from aquifer formations under their jurisdiction with the exception of limited circumstances in which the amount of water withdrawn from an aquifer exceeds the volume of water injected. approval of injection of water will be within tceq’s jurisdiction, although a groundwater district might provide input to that permitting process. implementation of hb 655 will need to be monitored to see that asr projects are properly vetted. seawater desalination while brackish groundwater development and asr have been getting a lot of “buzz,” perhaps the holy grail of water developers is the prospect of an “unlimited supply” of seawater off the texas coast. many people see seawater desalination as “drought-proof ” (as long as one ignores the water requirements for electric power generation for the desalination). but a clear framework for permitting seawater desalination has not been in place. moreover, concerns about the power requirements of energy-intensive desalination and the impacts of disposal of the concentrates left after desalination and related cost issues have tempered enthusiasm for seawater desalination. two bills that passed the legislature in 2015 seek to facilitate seawater desalination. one bill, hb 4097, dealt primarily with desalination of seawater for industrial water use. some of its provisions, however, call for the public utility commission (puc) in cooperation with the electric reliability council of texas (ercot) to conduct studies on electrical power issues affecting seawater desalination in general. one study is to evaluate whether “existing [electric power] transmission and distribution planning processes are sufficient to provide adequate infrastructure for seawater desalination projects.” a second study is to determine “the potential for seawater desalination projects to participate in the existing demand response opportunities in the ercot market.” with regard to authorizing seawater desalination projects for industrial water use, hb 4097 makes changes to chapter 11 of the texas water code that differentiate requirements for such projects depending upon the location of the diversion of seawater to be desalinated. if the point of diversion of seawater is less than 3 miles seaward of the texas coast or the seawater diverted contains a total dissolved solids (tds) concentration of less than 20,000 milligrams per liter, then the project must obtain a permit from the tceq for the diversion. that permit application is subject to most of the general provisions of chapter 11, including the opportunity for a contested case hearing on the permit. if the point of diversion is 3 or more miles seaward of the coast or the seawater diverted has a tds of less than 20,000 milligrams per liter, then the seawatexas water journal, volume 6, number 1 11184th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action ter desalination project is not required to obtain a permit for diversion from the tceq. hb 4097 also authorizes the tceq to require either individual or general permits for the discharge into the gulf of mexico (within the territorial waters of the state) of brine and other concentrates from a seawater desalination facility that produces water for industrial use. the bill also authorizes the tceq to allow disposal of concentrate from seawater desalination into an injection well. hb 2031 takes a somewhat different approach on seawater desalination (termed “marine seawater”). this legislation creates a new chapter 18 of the water code that outlines alternative processes that a seawater desalination project may use instead of the usual processes in chapter 11 and chapter 26 respectively for obtaining tceq authorization for diversion of water and discharge of concentrate. chapter 18 specifically prohibits diversion or discharge into a bay or estuary and requires the tceq to prescribe by rule reasonable measures to minimize impingement and entrainment of marine species during the diversion of seawater. the new chapter 18 has the same “bright lines” as in hb 4097, however, for determining whether a seawater desalination project must obtain a permit from the tceq for a diversion—the not-less-than 3 miles seaward or a tds concentration of less than 20,000 milligrams per liter. only within those parameters is a permit required. an interesting aspect of hb 2031 is the requirement that the texas parks and wildlife department and the general land office jointly “conduct a study to identify zones in the gulf of mexico that are appropriate for the diversion of marine seawater, taking into account the need to protect marine organisms.” this joint study is to be completed and a report submitted to the tceq by september 1, 2018. the report is to include recommended diversion zones, and the tceq is tasked, based on that report, to designate by rule appropriate diversion zones by september 1, 2020. seawater desalination projects authorized after that time, whether by permit or not, must locate their diversions within those designated zones. prior to that time, a seawater desalination project developer is required to consult with the texas parks and wildlife department and the general land office on appropriate diversion points. hb 2031 provides parallel requirements for the location of discharges of concentrates, and discharge zones may be the same as or overlap diversion zones. whether this new legislation actually jump starts seawater desalination projects remains to be seen. many municipal water suppliers are wary of pursuing such projects because of the costs, although the guadalupe-blanco river authority has now obtained funding from the twdb for a feasibility study of a proposed project. some observers believe that seawater desalination for industrial water use, especially in the corpus christi area, is more likely in the near term than municipal projects. the bottom line is that the legislature has established a clearer road map for the authorization of such projects, but it is not clear how many people are going to start down that road. water conservation and reuse water conservation and reuse were not major topics in the 2015 legislative session. two positive but relatively minor pieces of legislation related to water were enacted: • sb 551 specifically authorizes the state water conservation advisory council to make recommendations for legislation to advance water conservation (there had been disagreement about whether or not the council had such authority) • sb 1356 establishes a sales tax “holiday” for the purchase of water-conserving products. similar to the annual sales tax holiday for energy efficient products, any water-conserving products, as defined in the bill, purchased during the 3-day memorial day weekend are exempt from payment of sales tax water conservation did receive some attention in hb 1— the appropriations bill—although not all of the attention was positive. approximately $3.5 million was appropriated to the twdb for “water conservation education and assistance” for fy 2016, and $2.5 million was appropriated to the agency for that purpose for fy 2017. rider 26 to the twdb appropriations specifies that $1.125 million each year out of those amounts shall be used to meet the municipal water conservation goals of the 2012 state water plan. the rider further notes that these funds are to be used by the agency “to develop and manage a provider contract to deliver the most cost effective and accurate process by which to measure water conservation statewide.” this appropriation has not been made in the past. one water conservation item in the fy 2016/fy 2017 appropriations bill did not make it past the governor. rider 20 to the twdb appropriations directed $1 million out of the line item for water conservation education and assistance for fy 2016 to be earmarked for “water conservation education grants,” a competitive grant program for water conservation education groups that was first funded in the 2014-2015 biennium. governor abbott vetoed that rider, saying that activities supported by this funding were duplicative of other water conservation education (an argument panned by water conservation advocates). at this time the validity of the governor’s veto of this and other riders has been called into question by the legislative budget board executive director, and the fate of these grants is unclear. what is clear, however, is that there is legislative interest in encouraging and expanding the use of graywater and “alternative on-site water,” forms of water “reuse.” graywater has been defined in the texas water code as “wastewater from texas water journal, volume 6, number 1 112 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action clothes-washing machines, showers, bathtubs, hand-washing lavatories, and sinks that are not used for disposal of hazardous or toxic ingredients.” graywater use has been slowly increasing but primarily for lawn, garden, and golf course irrigation. a bill enacted into law in the 2015 session—hb 1902— expands the potential use of graywater by requiring the tceq to adopt by new standards for both indoor and outdoor use of this source, including for toilet and urinal flushing. the legislation further requires the tceq to adopt new standards for “alternate on-site water”—defined as “rainwater, air-conditioner condensate, foundation drain water, storm water, cooling tower blowdown, swimming pool backwash and drain water, reverse osmosis reject water, or any other source of water considered appropriate by” the tceq. this legislation could prove to be significant in the long term depending upon what standards are adopted and how strongly the use of graywater and alternate on-site water is encouraged. the water “gridzilla” perhaps the most controversial water legislation of the session was the proposed state water grid—a massive system to move water around texas (with the possible importation of water into texas from other states). the sierra club labeled this monstrous water concept a water “gridzilla.” the proposal came in the form of 2 companion bills introduced in the house and the senate: hb 3298 and sb 1907. as introduced, the legislation would have directed the twdb to do the following: • conduct a study of “the establishment of a water grid, including an integrated network of pipelines, pumping stations, reservoirs, and other works for the conveyance of water between river basins, water sources, and areas of water use in the state;” • connect the establishment, construction, operation and management of the water grid to the state water planning process; • evaluate alternative methods for ownership, construction, operation, maintenance, control, and financing of the water grid; • identify and evaluate methods to fund the establishment of a water grid; and • evaluate methods of incorporating existing water conveyance infrastructure into a grid. it is important to note that the legislation did not propose a study of whether a water grid was needed or even a good idea; the proposal was to study how to create, fund, and operate it. there was a foregone conclusion on the part of the proposal backers, which included energy interests seeking to benefit from the production and sale of power to move large volumes of water around the state, that a water grid should be pursued. the water “gridzilla,” however, was opposed by environmentalists, many rural and east texas interests, private property rights advocates, and many fiscal conservatives for a variety of reasons: • texas already has an extensive water planning process, costing millions of dollars, which looks at local or regional water transfers where they are needed and make sense; a state water grid is unnecessary to consider with these more targeted and reasonable water transactions. • the twdb is already working expeditiously to implement the new state water implementation fund for texas (swift) to provide financial assistance for water projects in the regional and state water plans; requiring the agency to focus on a state water grid (including yet another revolving fund to finance it) would only distract it from implementing swift. • if the twdb is to be directed to do a water study, what texas really needs is a study of how much more the state might gain from expanding water efficiency and water conservation measures to minimize the need for additional water infrastructure and all the financial, environmental, and social costs that accompany some of that infrastructure. • the current situation in california, which has had a system of massive water movements for decades, shows the folly of depending on a water grid in times of drought and also demonstrates the negative impacts of such large-scale water transfers on areas where the water comes from. • private property rights are likely to be trampled by a massive water grid that would take private lands for the building of surface water reservoirs and would potentially deplete aquifers that rural areas depend on for their economic vitality. • the proposed water grid makes no accommodation to the need to maintain river flows and freshwater inflows to the state’s highly productive bays and estuaries, which are important not only environmentally but also economically to millions of texans. hb 3298 did actually pass the house, with a somewhat surprising large vote in favor, perhaps aided by the assertion that “it’s only a study.” for environmentalists, it was disconcerting to see that despite the controversy over this proposal, there was little discussion of it on the house floor, and many usually reliable pro-environmental legislators in the house voted for the state water gridzilla. the main opposition to hb 3298 came from tea party conservatives and east texas legislators. in part the outcome on the house floor may have reflected the fact that the bill came to the floor fairly late in the session as house members were trying to move as many of their bills to the senate as possible. some observers expected the bill to die in the senate anyway. texas water journal, volume 6, number 1 11384th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action indeed, hb 3298 was pretty much dead on arrival in the senate; the bill never even got out of committee despite being carried by the committee chair. the senate version of water gridzilla, sb 1907, had earlier been voted out of committee but never had enough votes to be brought up on the senate floor—thanks to opposition from both liberal democrats and conservative republicans. a later attempt to add water gridzilla language to another senate bill on the house floor eventually faltered, and the monster was finally declared dead for the session. as anyone who follows horror movies knows, however, monsters do not always stay dead. a state water gridzilla proposal is likely to be resurrected—a testimony to the tenacity of water development interests with grandiose ideas going all the way back to at least the 1968 texas water plan. that plan proposed bringing water from the mississippi river to pipe it around our state for the manifest destiny of texas. the proposal was defeated at the polls by a coalition of environmentalists and fiscal conservatives. almost 50 years later, some things in texas water politics have not changed. the struggle continues between those whose primary focus, for economic or other reasons, is to develop massive “new” water supplies and those who take a more comprehensive view that emphasizes water efficiency and management and meeting the water needs of both people and the environment. stay tuned for the next episode of “texas water politics” in the 85th texas legislature. texas water journal, volume 6, number 1 114 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action the 84th texas legislature, regular session saw the introduction of more than 6,000 house and senate bills, of which 1,323 were passed into law and 41 were vetoed by governor greg abbott. of these, the texas alliance of groundwater districts (tagd) monitored over 300 bills by way of bimonthly tracking reports to its membership, and of which over 120 were identified as high priority groundwater bills. regular tagd legislative committee meetings were held throughout session to vote on and discuss those bills and to determine tagd’s position on them. statistically, both the house and senate saw an increase in the number of bills filed this year. as such, it was an accurately predicted busy but overall positive groundwater session. tagd’s legislative committee showed active engagement throughout, providing expert testimony when necessary and working collaboratively with other stakeholder groups such as the texas water conservation association (twca) groundwater consensus committee. tagd’s membership at large carried well this session’s particular interest in and focus on groundwater conservation districts (gcds) and can expect a number of signed bills to directly affect daily operations, permitting processes, and regional planning efforts. the 84th legislative session also saw a number of local gcd bills, with the creation of 2 new gcds, the annexation of the barton springs-edwards aquifer conservation district as well as local election and fee setting bills. gcd administration and operations a number of positive operational housekeeping bills were passed this session. two of these provide for the use of gcd websites as being in reasonable compliance with requests under the public information act (hb 685) as well as public meeting posting requirements (hb 3357). estes’ senate bill (sb) 1267 similarly addresses the administrative procedure act, defining the requirements for posting notice of a hearing in a contested case. keffer’s house bill (hb) 2767 achieved tagd and twca consensus support, serving as a chapter 36 clean-up bill and providing clarification of terminology. permitting from a groundwater permitting perspective, the passage of 3 bills in particular should be noted. hb 2179 cleans up the existing permit-hearing process in chapter 36 of the water code, further defining the boundaries of board action as it relates to contested case hearings and preliminary hearings. sb 854 positively streamlines gcd operations by allowing for the automatic renewal of an operating permit without a hearing, provided certain requirements are met. the passage of hb 655 provides definition of an aquifer storage and recovery (asr) project and clarification on its permitting process. the bill states that while asr wells are required to be registered with a gcd and subject to regular well registration fees, the texas commission on environmental quality (tceq) holds exclusive jurisdiction over its permitting. hb 655 requires the tceq to limit the recoverable amount of water from the project to the total amount injected, requiring further limitation if it finds unrecoverable losses will occur. the bill further defines that should the project produce more water than the amount authorized for withdrawal by the tceq, a gcd’s spacing production, permitting rules and fees will apply to the withdrawals above the amount authorized. regional planning much attention was given to the subject of interstate cooperation and the perception of heterogeneous groundwater management. on a state level, hb 163 addresses interstate cooperation and regional water issues by amending chapter 8 of the water code, laying out the conditions for the water commission created to advise the governor and the legislature and renaming it the southwestern states water commission. hb 30 similarly addresses regional water planning by requiring the inclusion of large-scale desalination facilities in regional water plans and expanding the definition of desalination to include both seawater and brackish groundwater. perhaps the most significant in regional planning, however, is the passage of hb 200, which revises the desired future conditions (dfcs) appeals process. as part of its revision, hb 200 adds a contested case hearing process for the appeal of a dfc via a state office of administrative hearings (soah) hearing and allows a petitioner to appeal a district’s final decision to a local district court. gcd boards responding to the increasing pressure placed on district board members, the passage of hb 3163 will positively affect gcd boards and their decision-making process. hb 3163 states that a district board member acting in their individual capacity is immune from suit and liability for actions taken texas alliance of groundwater districts legislative summary 84th texas legislature, regular session by sarah rountree schlessinger, executive director, texas alliance of groundwater districts texas water journal, volume 6, number 1 11584th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action on behalf of the board. further, hb 3163 determines the attempt to bring suit against a board member for those actions as constituting coercion of a public official. local elections the 84th legislative session also saw the passage of a number of local election bills (i.e. hb 1819, sb 363, and sb 2030). benefiting further housekeeping and financial savings for gcds, fraser’s sb 733 extends the deadline for a political subdivision to change its election date to the uniform election date to december 31, 2016. new gcds hb 2407 filed without signature: effective immediately relating to the creation of the comal trinity groundwater conservation district. hb 3405 filed without signature: effective immediately relating to the territory and authority of the barton springs/ edwards aquifer conservation district to regulate certain wells for the production of groundwater. hb 4207 filed without signature: effective 9/1/15 relating to the creation of the aransas county groundwater conservation district. drillers, real estate, and research beyond bills directly affecting gcd operations, a number of significant groundwater bills saw success this session. hb 930 amends the occupations code by authorizing the texas department of licensing and registration (tdlr) to reinstate the apprentice driller and apprentice pump installer program. the passage of this bill and restoration of tdlr’s programs will help protect texas aquifers and compliment gcd efforts by ensuring that water well drillers and pump installers receive proper guidance. similarly, hb 1221’s amendment of the texas property code will compliment gcd involvement in local management by requiring sellers of residential real property to include gcd information as a disclosure form provided to potential buyers. at the state level, the passage of hb 1232 will benefit groundwater management by requiring the twdb to conduct a study to define the quality and quantity of groundwater and to produce a map showing the area and water quality of aquifer by december 31, 2016. vetoed bills hb 2647: vetoed relating to a limitation on the authority to curtail groundwater production from wells used for power generation or mining. governor abbott’s objections to hb 2647 are expressed in his june 20, 2015 proclamation, in which he states that hb 2647 “eliminates local discretion by mandating the preferential treatment of certain types of groundwater use over other important uses.” governor abbott’s veto is significant in its protection of gcds’ pursuits to implement management strategies that treat all users equitably and its recognition of the benefit of local groundwater management that responds to local needs and concerns. looking ahead looking ahead, we expect to see substantial change in texas water policy leadership. shortly after the session closed, long-time water policy champions senator fraser and representative keffer announced that they would not be seeking reelection, followed closely by an announcement of retirement from the texas water development board (twdb) chairman rubenstein. tagd intends to participate in the inheritance of their institutional knowledge that has carried the development of texas water legislation. with the adjournment of the 84th texas legislature on monday, june 1, 2015, tagd provided its membership with a final tracking report of a total of 40 bills. governor abbott had until sunday, june 21, 2015 to sign or veto bills. of those 40, the following bills were passed: passed bills hb 23 signed: effective 9/1/2015 relating to disclosure of certain relationships with local government officers and vendors. hb 30 signed: effective 6/19/2015 relating to the development of brackish groundwater. hb 40 signed: effective immediately relating to the express preemption of regulation of oil and gas operations and the exclusive jurisdiction of those operations by the state. hb 163 signed: effective 9/1/2015 relating to interstate cooperation to address regional water issues. http://www.bseacd.org/publications/spotlights/hb-3405-annexation/ http://gov.texas.gov/files/press-office/veto_hb2647_06202015.pdf texas water journal, volume 6, number 1 116 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action hb 200 signed: effective 9/1/15 relating to the regulation of groundwater. hb 280 signed: effective 9/1/2015 relating to the information required to be posted by the twdb on the board’s internet website regarding the use of the state water implementation fund for texas. hb 655 signed: effective immediately relating to the storage and recovery of water in aquifers. hb 685 signed: effective 9/1/2015 relating to the production of public information available on the website of a political subdivision of this state. hb 930 signed: effective 9/1/2015 relating to water well drillers and pump installers. hb 1221 signed: effective 1/1/16 relating to seller’s disclosures in connection with residential real property subject to groundwater regulation. hb 1232 signed: effective immediately relating to a study by the twdb regarding the mapping of groundwater in confined and unconfined aquifers. hb 1378 signed: effective 1/1/16 relating to annual financial reporting of debt information. hb 1421 signed: effective immediately relating to fees charged by the coastal plains groundwater conservation district. hb 1819 filed without signature: effective immediately relating to the date for the election of directors of the hill country underground water conservation district. hb 2031 signed: effective immediately relating to the development and production of marine seawater desalination, integrated marine seawater desalination, and facilities for the storage, conveyance, and delivery of desalinated marine seawater. hb 2154 signed: see remarks for effective date relating to the functions and operation of the state office of administrative hearings. hb 2179 signed: effective immediately relating to hearings that concern the issuance of permits by a groundwater conservation district. hb 2230 signed: effective 9/1/15 relating to the authority of the tceq to authorize an injection well used for oil and gas waste disposal to be used for the disposal of nonhazardous brine. hb 2407 filed without signature: effective immediately relating to the creation of the comal trinity groundwater conservation district. hb 2767 signed: effective immediately relating to the powers, duties, and administration of groundwater conservation districts. hb 3163 signed: effective immediately relating to filing suit against board members of groundwater conservation districts. hb 3357 signed: effective 9/1/15 relating to permitted methods for certain political subdivisions to post notice of a meeting. hb 3405 filed without signature: effective immediately relating to the territory and authority of the barton springs / edwards aquifer conservation district to regulate certain wells for the production of groundwater. hb 3858 signed: effective immediately relating to fees charged by the coastal bend groundwater conservation district. hb 4097 signed: effective immediately relating to seawater desalination projects. hb 4112 signed: effective immediately relating to the rights of an owner of groundwater. hb 4207 filed without signature: effective 9/1/15 relating to the creation of the aransas county groundwater conservation district. sb 363 signed: effective 9/1/15 relating to election dates for directors of the bandera county river authority and groundwater district. sb 374 signed: effective 9/1/15 relating to requiring state agencies to participate in the federal electronic verification of employment authorization program, or e verify. sb 551 signed: effective 9/1/15 relating to the duty of the water conservation advisory texas water journal, volume 6, number 1 11784th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action council to submit a report and recommendations regarding water conservation in this state. sb 733 signed: effective immediately relating to the authority of certain political subdivisions to change the date of their general elections. sb 854 signed: effective 9/1/15 relating to the renewal or amendment of certain permits issued by groundwater conservation districts . sb 991 signed: effective immediately relating to a requirement that the general land office and the twdb conduct a study regarding the use of wind and solar power to develop and desalinate brackish groundwater. sb 1101 signed: effective 9/1/15 relating to the authority to determine the supply of groundwater in certain regional water plans. sb 1267 signed: effective 9/1/15 relating to contested cases conducted under the administrative procedure act. sb 1336 signed: effective 9/1/15 relating to the construction of laws and election dates of certain groundwater conservation districts. sb 1812 signed: effective immediately relating to transparency in the reporting of eminent domain authority and the creation of an eminent domain database. sb 2030 signed: effective 9/1/15 relating to the election date of the north plains groundwater conservation district. sb 2049 signed: effective 9/1/15 relating to qualifications of members of the board of directors of the lone star groundwater conservation district. texas water journal, volume 6, number 1 118 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action the texas water infrastructure network (txwin) is a 501 c6 non-profit trade association founded in september, 2013 to represent the interests of general contractors, subcontractors, service suppliers, and equipment and materials suppliers and manufacturers involved in the planning and construction of water infrastructure projects. txwin is the only statewide association specifically focused on construction issues and advocacy in the texas water infrastructure market. txwin’s primary focus is to provide our advocacy and resources for our membership in active partnership with owners, legislators, regulatory bodies and other industry organizations to ensure a healthy and competitive construction market place that promotes value for public dollars invested in water infrastructure projects. txwin entered the 2015 texas legislative session with a narrow focus on promoting specific contracting reforms and supporting a broader legislative agenda to promote fair and ethical contracting, reduced regulatory burdens, and responsible policy in the promotion of texas water infrastructure projects. txwin tracked over 350 bills throughout the course of the session, and the following legislation is of particular interest for governmental entities and others involved in the finance, construction, and design of water infrastructure projects. while there are still many issues in the contracting realm that need to be addressed, overall this was a very positive session for the promotion of the txwin legislative agenda, which, in turn, should benefit all facets of the broader market including owners and the public. txwin looks forward in the 2017 session to working closely with the owner and design professional community in addition to legislators and regulators to address a number of contracting and procurement issues in the promotion of a healthy and competitive texas construction market. txwin-supported legislation that passed house bill (hb) 23 (davis/nelson) relating to disclosure of certain relationships with local government officers and vendors. txwin supported this local ethics and contracting legislation, which increases disclosure and reporting requirements for local government officials and employees who may influence in the contract selection process, and also includes disclosure requirements for vendors and other entities seeking to enter contracts with political subdivisions. hb 23 expands definitions of what constitutes “conflicts of interest” providing criminal penalties for failure to disclose gifts including travel and meals. this may be 1 of the most important bills to pass this session to ensure that there is transparency on the local level regarding those who seek to influence local contracting processes. hb 2475 (geren/eltife) relating to the establishment of the center for alternative finance and procurement within the texas facilities commission and to public and private partnerships. txwin supported legislation that clarifies rules and procedures and promotes transparency for public-private partnerships including application of government code 2269 for alternative project delivery contracting and procurement process. hb 2634 (kuempel/zaffirini) relating to the construction manager-at-risk used by a governmental entity. txwin supported this contracting reform legislation that reforms the construction manager-at-risk (cmar) project delivery method and contracting process. current public works contracting law for cmar in gov. code 2269.251 calls for separate contracts for design and construction but failed to expressly ensure that said contracts were awarded to separate entities per industry best practices, allowing qualifications to be established which favored related “construction” entities of design firms thus undermining the competitive process. hb 2634 amends the law by prohibiting related entities from serving as designer and construction manager-at-risk. for example, an integrated engineering firm may not serve as both the designer and construction manager, or general contractor. this change in the law eliminates potential conflicts of interest and misuse of the cmar method as de-facto design-build without appropriate safeguards where qualifications might be crafted which undermine the competitive process for procuring the cmar contractor. hb 2634 not only ensures the integrity of the competitive process but also ensures the appropriate use of the cmar procurement and project delivery method, eliminating potential conflicts of interest that undermine protections for public owners. this may be the most significant contracting legislation of the session with respect to the design and construction of water infrastructure projects. texas water infrastructure network summary of legislation impacting the texas water infrastructure market in the 84th texas state legislature by perry l. fowler, executive director, texas water infrastructure network http://txwin.us8.list-manage.com/track/click?u=f6ba7901abef282e7f17912ca&id=038a2a9173&e=39c4e0d5bd http://txwin.us8.list-manage2.com/track/click?u=f6ba7901abef282e7f17912ca&id=32ce02f31d&e=39c4e0d5bd http://txwin.us8.list-manage1.com/track/click?u=f6ba7901abef282e7f17912ca&id=a5158fde8f&e=39c4e0d5bd texas water journal, volume 6, number 1 11984th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action hcr 96 (hunter) requesting the speaker of the house of representatives and the lieutenant governor to create a joint interim committee to study the issue of advertising public notices. several bills were introduced this session with the goal of reducing costs, making public notices more accessible to the public, and providing additional flexibility to political subdivisions through the use of electronic means. this concurrent resolution assures the issue will be discussed and evaluated in the interim. senate bill (sb) 20 (nelson/price) relating to state agency contracting. omnibus state contracting reform bill. although this legislation will not affect financial assistance from the twdb or locally administered funds, txwin will monitor the implementation of this legislation, which is intended to promote fair and ethical contracting reforms for direct state contracting and purchasing including additional review authority for large contracts and training for state agency purchasing personnel. sb 709 (fraser/morrison) relating to environmental permitting procedures for applications filed with the texas commission on environmental quality. this legislation expedites and streamlines tceq permitting process. other legislation of interest that passed sb 1081 relating to the disclosure of certain information under a consolidated insurance program. hb 2049 indemnification and duties of engineers and architects under certain governmental contracts. this legislation removes from the obligations of architects and engineers to defend local governments and limits their obligation to repay local governments for liability from negligence or fault. the bill also allows local governments to be insured on the architect’s or engineer’s general liability policy and establishes a standard of care for architects and engineers to perform services. other significant contracting and related legislation that did not pass hb 1007 relating to the purchase of iron, steel, and manufactured goods made in the united states for certain state, state-aided, and governmental entity construction projects. this legislation would have applied u.s. iron, steel and manufactured good requirements to all state and local public construction contracts adding increased costs, regulatory burdens and unnecessary liability for contractors. these types of policies diminish local control and fail to recognize the global supply chain that is particularly important with regard to highly complex technologies used in water and wastewater treatment plants. sb 1337 relating to the authority of the twdb to provide financial assistance to political subdivisions for water supply projects. this legislation would have expanded twdb flexibility for financial assistance programs. unfortunately, an amendment expanding “buy american” requirements was added to the legislation on the floor of the house that would have expanded application of requirements for u.s. iron, steel materials and manufactured goods to swift funded projects thus increasing costs, regulatory burdens and constraining choices of financial assistance recipients. hb 3687 relating to design-build procedures for civil works projects. this legislation would have added 1-step design-build authority for civil works construction projects, creating a subjective procurement process without cost considerations that would have seriously impacted the ability to determine project costs and conduct competitive procurements. the bill also sought to remove all current population and project limits. without additional safeguards to ensure fair competition in the evaluation of design-build qualifications and additional procurement safeguards txwin will not support expansion of current design-build authority. hb 3688 relating to the process for the selection of construction managers-at-risk used by governmental entities. this legislation would have completely gutted the cmar process allowing it to be used as de facto design build without any appropriate safeguards or rules.  hb 3939 relating to the requirements for construction projects for certain public works projects. this retainage reform legislation would have required retainage to be placed in an interest-bearing account for public works construction projects, and prohibited retainage in excess of 5% without consent of the prime contractor. hb 3939 also would have eliminated the practice of “hidden retainage” by prohibiting withholding of payments on additional items in http://txwin.us8.list-manage1.com/track/click?u=f6ba7901abef282e7f17912ca&id=fad90e896b&e=39c4e0d5bd http://txwin.us8.list-manage.com/track/click?u=f6ba7901abef282e7f17912ca&id=5f348fbf9b&e=39c4e0d5bd http://txwin.us8.list-manage1.com/track/click?u=f6ba7901abef282e7f17912ca&id=08bdf24b43&e=39c4e0d5bd http://txwin.us8.list-manage.com/track/click?u=f6ba7901abef282e7f17912ca&id=557c359e1b&e=39c4e0d5bd http://txwin.us8.list-manage.com/track/click?u=f6ba7901abef282e7f17912ca&id=1a4febb2fa&e=39c4e0d5bd http://txwin.us8.list-manage.com/track/click?u=f6ba7901abef282e7f17912ca&id=83c8d1d068&e=39c4e0d5bd http://txwin.us8.list-manage1.com/track/click?u=f6ba7901abef282e7f17912ca&id=c06fbc6ce3&e=39c4e0d5bd http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=84r&bill=hb3939 texas water journal, volume 6, number 1 120 84th texas state legislature: summaries of water-related legislative action 84th texas state legislature: summaries of water-related legislative action the schedule of values or contract general conditions. the legislation also prohibited the practice of withholding retainage for non-allocated project funds and withholding of retainage during the warranty period. the legislation also established a trigger for release of retainage once facilities were capable of being used for their intended purpose. txwin looks forward to working with the owner community in the interim to address retainage issues in the hope of reaching consensus on reforms that will bring more fairness to the process. an evaluation of urban landscape water use in texas texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 4, number 2 2013 texas water journal http://texaswaterjournal.org volume 4, number 2 2013 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: as texas continues to face water challenges and drought, many communities are seeking to conserve water in various sectors, including lawn and landscape water use. ©jose manuel gelpi diaz, crestock http://texaswaterjournal.org http://texaswaterjournal.org an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas texas water resources institute texas water journal volume 4, number 2, pages 14–27 abstract: irrigated agriculture is the largest user of water in texas, followed by urban-municipal uses, which has landscape irrigation as its largest component. data from various sources were used to estimate the extent of the state’s urban landscaped area and its associated water use. the statewide area in golf courses is estimated at 115,000 acres, while 1,608,399 acres are ascribed to managed landscapes and lawns. while the total annual water use by golf courses is estimated at 0.364 million acre-feet, the volume projected for the landscape sector ranges from a low of 1.898 million acre-feet to a high of 4.021 million acre-feet. the sum of water use by golf courses with the low-end estimate for landscapes would represent 46.6% of the total use within the urban/municipal water sector and 12.6% of the total annual demand by all activities in texas during 2010. this effectively positions urban irrigation as the state’s third largest water user, after agricultural irrigation and other urban uses. strategies and practices that can significantly conserve (reduce) water use for urban landscape irrigation include water-conserving native and adaptive plant materials, weatherand sensor-guided irrigation, deficit irrigation practices, and use of alternative (saline/brackish, reclaimed, and graywater) water sources. keywords: landscapes, lawns, irrigation, ornamental plants, water use and conservation raul i. cabrera1*, kevin l. wagner2, benjamin wherley3 an evaluation of urban landscape water use in texas 1 texas a&m agrilife research, 1619 garner field road, uvalde, texas 78801 2 texas water resources institute, 1500 research parkway, college station, texas 77843 3 department of soil and crop sciences, texas a&m university, college station, texas 77843 *corresponding author: r-cabrera@tamu.edu texas water journal, volume 4, number 2 citation: cabrera ri, wagner kl, wherley b. 2013. an evaluation of urban landscape water use in texas. texas water journal. 4(2):14-27. available from: https://doi.org/10.21423/twj.v4i2.6992. © 2013 raul i. cabrera, kevin l. wagner, benjamin wherley. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v4i2.6992 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 4, number 2 15an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas short name or acronym descriptive name crop coefficients kc evapotranspiration et reference evapotranspiration eto soil moisture sensors sms terms used in paper texas water journal, volume 4, number 2 16 an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas introduction landscape plantings, containing grass, plants, trees and associated hardscape components, are an essential component of the urban environment and provide an array of economic, environmental, human health, and psycho-social benefits (frank 2003, roberts and roberts 1987). some examples of these benefits include enhancing the real estate value/appraisal of residential and commercial properties, reducing the energy consumption (heating, cooling) and costs of these properties, attracting and positively influencing consumer attitudes and spending, reducing stress at home and work, promoting exercise activities, reducing air, water and noise pollution, minimizing soil erosion, etc. landscaping activities are a component of the ornamental horticulture industry, also known as the “green industry,” which is a significant sector of texas agriculture. green-industry components include production activities by greenhouse, nursery and sod growers, and other services and goods provided by florist shops and retail garden centers, in addition to landscaping and tree care/maintenance activities. the total economic contributions of all green industry activities in texas for 2011 were estimated at $17.97 billion in output, plus $10.7 billion in value added and the industry provided employment for 200,303 people (palma and hall 2013). information from the 2012 state water plan indicates that the total projected annual water demand by all activities in texas during 2010 accounted for about 18 million acre-feet (twdb 2012). according to the water plan, 27% of water demand was attributed to municipal uses, which includes landscape irrigation, and 56% to agricultural irrigation, which includes ornamental crop (nursery-greenhouse) and sod production (figure 1). while there is specific information available on irrigated agriculture, including the production sectors of the green industry (nursery, greenhouse and sod production), there is very limited data available on the extent of the actual or projected water use by the urban landscape sector. the severe drought experienced by texas since 2011 has brought a devastating effect to irrigated agriculture. according to texas a&m agrilife extension service economists, during 2011 the drought resulted in an overall loss of $7.62 billion to the state’s agriculture, distinguishing it as the costliest drought on record (fannin 2012). while it might be difficult to estimate what fraction of the total economic losses is attributed to green industry activities, the drought-related loss of 5.6 million trees in urban landscaped areas, representing up to 10% of the state’s urban forest (smith and riley 2012), provides an insight on the serious effects of the drought on this industry. in comparison, drought-related losses of trees in the state’s natural forests amounted to 301 million trees for the same year, accounting for an average 6.2% mortality across the state (texas a&m forest service 2012). across the state, many cities and municipalities have also enacted restrictive ordinances on urban landscape irrigation in an effort to conserve water as surface and groundwater supplies dwindle due to the ongoing drought (twdb 2012). as of june 24, 2013, the texas commission on environmental quality (tceq) reported that 972 (20.8 %) of the state’s 4,665 community water systems were under voluntary or mandatory use restrictions, and 30 other public water systems were at risk of running out of water within 45 to 180 days (tceq 2013). population growth in texas, largely to be observed in urban areas, is expected to increase 82% in the next 5 decades, from 25.4 million in 2010 to an expected 46.3 million in 2060. likewise, demand for municipal water over the same period is also expected to increase by 71.4%, from 4.9 million acre-feet in 2010 to 8.4 million acre-feet in 2060 (twdb 2012). while there is quite a bit of information and track record on the projected water use by agricultural irrigation, until recently there has been limited information on water use by urban landscape irrigation. a recent analysis of metered water use across selected texas cities, from 2004 through 2011, has shown that about 31% of single-family residential annual water consumption is dedicated to outdoor purposes, mostly landscape irrigation (hermitte and mace 2012). the objective of this report is to provide a global assessment of the status of urban landscape water use in texas to provide baseline information that can be used to gauge the current demands of this sector, and to consider some management practices and alternatives that can significantly contribute to water conservation in landscape irrigation activities. acreage and water use in irrigated agronomic and ornamental crop commodities based on recent reports, in texas there are 6.17 million acres of irrigated crops, mostly agronomic (cotton, corn, etc.), forage, and vegetables, with an estimated water use of 9.5 million acre-feet (nass 2009; turner et al. 2011; wagner 2012). these figures yield an average annual irrigation rate of 18.5 inches (table 1). within the irrigated acreage figures for texas, only 59,212 acres were used in the production of ornamental horticulture crops and sod in 2007 (nass 2009). within these commodities, sod production had the greatest acreage, 36,805 acres (62% of the total; figure 2), followed by nursery crops with 18,230 acres (31% of total). the combined area devoted to floriculture crops and propagative plant materials accounted for 4,177 acres (7% of the total). most of the acreage devoted to nursery crops and sod is for outdoor (field) production, and texas water journal, volume 4, number 2 17an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas protected structures (greenhouses) accounted only for 2% of the total (1,266 acres). while the area devoted to ornamental crop and sod production is minuscule compared to other irrigated crops in texas (table 1), the intensity of their management and productivity are associated with the highest reported irrigation rates, which approach 84 inches per year (bailey et al. 1999, fare et al. 1992, warsaw et al. 2009), resulting in a potential statewide annual water use of 0.414 million acre-feet for this green industry sector. golf course area and water use golfing is a significant activity within the green industry. according to golf-related organizations (lone star golf course superintendents association; texas turfgrass association), there are approximately 1,000 public and private golf courses in texas. according to a recent survey (throssell et al. 2009), the average golf course size in the southern united states is 115 acres, thus producing an estimated total golf course area of 115,000 acres for texas. the annual irrigation rates for texas golf courses average 38 inches, ranging from 29 inches in eastern part of the state to 47 inches in the western region (duble 2013, haydu and hodges 2002, throssell et al. 2009). this yields a potential total water use of up to 0.364 million acre-feet per year for the golf industry (table 1). estimating area in statewide urban landscapes data from the us census bureau (2012; 2013b) show that in 2013 texas had 7,675,050 single family (detached) housing units, each having a median lot size of 0.36 acres. earlier estimates of the average lawn size indicated that for texas it was 0.175 acres (vinlove and torla 1995). for this report a more conservative area of 0.15 acres (6,534 square feet) of mixed landscaped area (turf plus plants and trees) is employed, giving a total of 1,151,258 acres for all the single residential housing units in the state. a conservative 1-acre of landscaped area was assigned to each of the additional 96,948 multi-unit housing structures (apartment complexes with an estimated average of 25 units for each). we conducted a quick survey of 12 multiunit housing structures in college station, texas, and found that their irrigated landscapes ranged from 1.5–8.2 acres, with a median value of 3.3 acres. our chosen value of 1-acre of landscaped area to all the statewide multi-unit housing structures might be considered a bit conservative, but we believed it might be more representative. adding the landscaped area of multi-unit housing with the area calculated for the single residential units, the total residential landscape area in texas is 1,248,206 acres. this estimate is about 9% greater than the 1,145,242 acres of total home lawn area estimated for texas by vinlove and torla in 1995, where they used a 16.7% larger lawn area per lot, although there were 42.8% fewer single residential housing units at the time. the 0.15 acres (6,534 square feet) home lawn/landscape area used for the present report is considered to better represent the more compact urban lot sizes where the bulk of the new housing construction has taken place in the last 2 decades (van lare and arigoni 2006, us census bureau 2012). furthermore, in some of the drier south and western urban areas of texas (i.e. el paso), there have been aggressive policies and incentives to significantly reduce the size of residential lawns and landscapes as figure 2. relative distribution of the area devoted to the production of ornamental commodities and sod in texas (from data in 2007 census of agriculture; nass 2009). figure 1. relative water demand projected in 2010 for various activities in texas (drawn from data in the 2012 state water plan; twdb 2012). texas water journal, volume 4, number 2 18 an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas part of their urban water conservation efforts and measures (epa 2009). for the estimation of municipal lawns and landscapes (including municipal/city parks, cemeteries, street medians and urban right-of-ways), data from the us census bureau (2013b) was employed to generate a list of texas cities with more than 1,000 inhabitants (976 cities, accounting for 77.1% of the state’s population). for those with >70,000 inhabitants (a total of 47), information on total park and managed municipal landscaped areas was obtained from their parks and recreation departments (official websites) and the trust for public land (2012). an analysis of these data showed that the average ratio of population to municipal park and landscape acreage was 106:1 (persons: acre) for cities with 200,000 to 2.1 million (i.e. houston) inhabitants, and 136:1 for cities with 70,000 to 200,000 inhabitants, which were in between the national guideline ratios of 53:1 and 167:1 proposed by the national recreation and park association (2012). these cities account for 49.1% of the state’s population and their combined municipal parks, cemeteries and landscaped areas amounted to 175,635 acres. a sliding scale of ratios (people: municipal landscaped area) of 150:1 to 350:1 was used for the rest of the cities in 6 population categories (50,000–70,000, etc. down to 1,000–2,000), which added 34,176 more acres, for a grand total of 209,811 acres for all the municipal (city) landscaped areas in texas. not all municipal parks and grounds are actually irrigated, and for the estimation of water use in this report, we are assuming that only one-half are, thus yielding an adjusted area of 104,906 acres. this figure does not include any other landscaped areas managed by other local, state or federal entities within these cities. according to data from the economic census (us census bureau 2013a), in texas there were 172,841 business establishments with 20 to 500+ employees. using information on the total number and size of each business firm (3 classes: 20–99, 100–499 and >500 employees) and multiplied by estimated landscaped areas for each (0.1, 1.0 and 2.0 acres, respectively for each business size class), this yielded an estimated statewide business (commercial) landscaped area of 228,776 acres. educational institutions in the state also have managed landscaped areas. the texas education agency listed 8,322 public and private schools (k-12) in 2009, and assigning an estimated 3 acres of lawns/landscapes for each, this adds an area of 24,966 acres. a similar calculation was done for higher education institutions, with 103 listed in 2009 (texas higher education coordinating board), and assigning a landscaped area of 15 acres per institution, it adds 1,545 acres. altogether, 26,511 acres of lawns/landscapes were estimated in the education sector across the state. the sum of all the areas calculated for all urban landscapes (residential, municipal, business, and educational) in the state amounts to 1,608,399 acres (table 1). the distribution of the combined area for all urban landscapes and golf courses, which together add to a grand total of 1,723,399 acres, is shown in figure 3. a recent study of satellite photography evaluated the relationships between impervious and vegetated surfaces across figure 3. distribution of the urban landscape (and lawn) area in texas, including golf courses. table 1. estimated area, average irrigation rate and total water use by irrigated agriculture and green industry activities in texas. commodity area (acres) average annual irrigation rate feet (inches) estimated total annual water use (million acre-feet) irrigated agriculture 6,170,000 1.54 (18.5”) 9.502 green industry activities nursery-greenhouse-sod 59,212 7.00 (84.0”) 0.414 golf courses 115,000 3.17 (38.0”) 0.364 lawns/landscapes* 1,608,399 high 2.50 (30.0”) low 1.18 (14.2”) high 4.021 low 1.898 *includes landscaped areas in residential, municipal, commercial (business) and educational sectors. see figure 3 for its distribution and table 2 for estimation of irrigation rates. texas water journal, volume 4, number 2 19an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas the country, estimating that texas had at least 2,505,154 acres of urban residential, municipal, institutional, and commercial lawns/landscapes, including golf courses (milesi et al. 2005). expectedly, these areas were concentrated in urban areas (figure 4), particularly in the triangle contained within the metropolitan boundaries between dallas-fort worth, san antonio, and houston, where more than 75% of the texas population reside (neuman and bright 2008). the total landscape and golf course area estimated for texas in the present report corresponds to 68.8% of the area modeled by milesi et al. (2005), a difference attributed to a potential overestimation by the indirect approach used by these latter authors. their modeling approach employed a 1-kilometer (0.621 mile) spatial resolution from satellite photography. in addition, for the development of the relationships between the proportions of constructed surfaces (roads, parking lots, buildings) versus the proportion of vegetated (turfgrasses and plants/trees) and other (undeveloped) surfaces, they employed a very limited number of high-resolution aerial photographs for the entire united states. these photographs, 80 in total, were collected along development transects distributed across only 13 major urban centers, and it is unknown how many were used to represent texas. their predictive model on the relationship between fractional urban impervious and vegetated areas, in fact, showed a moderate determination coefficient of r2 = 0.69, and as such we infer that the total urban landscape area for texas calculated by our approach is effectively and conservatively within the low boundaries of the area modeled by milesi et al. (2005). we acknowledge that the use of satellite imagery and associated analytical tools will become the preferred and more efficient avenues to evaluate the extent and dynamics of urban landscape areas and their water use, compared to the use of data from census and other sources (with their intrinsic limitations) and the need for educated assumptions to fill in the gaps. water use in urban landscapes the estimation of the total water used by all the landscaped areas in the residential, municipal, commercial, and educational sectors across the state can be challenging, as both recommended and actual irrigation rates can vary widely across the state depending on the types of turfgrasses and landscape plants/trees used, the soil types, weather (including temperature, relative humidity, rainfall, etc.), and the habits and perceptions of homeowners and landscaper/irrigation operators. information from some of the largest cities and municipal water suppliers in texas, namely dallas, austin, and san antonio (austin water utility 2013; dallas water utilities 2013a, 2013b; saws 2013c), along with several research and educational sources (duble 2013), suggest weekly irrigation rates of 0.75 inch to 1 inch during the summer months, tapered in spring and fall and basically zero in the winter. integrated over a year, these irrigation values approach up to 30 inches. this rate coincides with the average difference of 29.7 inches between historical annual precipitation and reference evapotranspiration (eto) values for 21 cities across the state (table 2). this average differential value represents the potential supplemental irrigation demanded if it was desired to meet 100% of eto in each of these locations. current recommendations, followed by licensed irrigators, employ crop coefficients (kc), ranging from 0.4 to 0.7 kc to calculate the actual irrigation replacement rates depending on location, the palette of plant and turfgrass materials, and other factors like stress and water quality (pannkuk et al. 2010, wherley 2011, white et al. 2004). the multiplication of a high average irrigation rate of 30 inches by the estimated total landscaped area of 1.608 million acres would yield a high total statewide water use of 4.021 million acre-feet per year for the landscape sector (table 1). actual urban landscape water use in recent years, however, might be significantly less according to a study of single-family residential water usage between 2004 and 2011 in cities across texas (hermitte and mace 2012). analyses of metered water consumption data and patterns for single-family residences in these cities indicated that their estimated outdoor water usage, mostly devoted to lawns and landscapes, averaged an annual irrigation rate equivalent to 14.2 inches (table 2). multiplying this irrigation rate by the previously calculated landscaped area produces a total of 1.898 million acre-feet per year (table figure 4. geographical distribution of the turf and tree surface area (i.e. urban landscapes) in texas, estimated from relationships between impervious and vegetated surfaces in high-resolution satellite photography tiles (illustration adapted from milesi et al. 2005). texas water journal, volume 4, number 2 20 an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas 1), which might be considered a more realistic or conservative estimate of landscape water use in texas. adding the water use estimated for golf courses, the total annual urban irrigation (i.e. landscapes plus golf courses) is 2.262 million acre-feet per year, representing about 46.6% of the use within the municipal water sector, and 12.6 % of the total projected annual demand by all activities in texas during 2010 (figure 1; twdb 2012). with these calculations, urban irrigation is effectively positioned as the state’s third largest water user, after agricultural irrigation and other urban (inhome and municipal) uses. opportunities for water conservation in urban landscapes there are a number of strategies, tools, alternatives, and management practices that can significantly reduce (conserve) water usage in urban landscape irrigation. use of water-conserving landscape plants and suitable designs for each ecogeographical region (i.e. soil and climate) have been predominantly promoted as foundational components of water conservation. there are published and online listings of resource-efficient plants (e.g. earthkind® plants), total annual a cities precipitation (inches) eto (inches) difference (inches) b metered residential outdoor water use (inches/year) c abilene 23.7 58.7 -35.0 -amarillo 19.8 55.5 -35.7 20.9 austin 33.2 57.5 -24.4 13.0 brownsville 25.6 56.2 -30.6 -college station 39.4 56.3 -17.0 19.2 corpus christi 30.3 55.7 -25.4 9.7 dallas/ft. worth 34.8 55.9 -21.0 18.3 del rio 17.8 61.0 -43.3 -el paso 8.6 79.3 -70.7 15.4 galveston 41.9 53.6 -11.7 -houston 47.7 54.9 7.2 5.4 lubbock 18.5 59.1 -40.6 14.1 midland 14.2 64.8 -50.6 17.4 port arthur 56.3 52.7 3.7 -san angelo 19.2 71.3 -52.1 -san antonio 30.1 58.2 -28.2 9.8 uvalde 23.4 59.9 -36.5 19.3 victoria 39.2 57.0 -17.9 7.6 waco 32.3 53.2 -20.9 14.4 weslaco 25.4 54.1 -28.7 -wichita falls 27.9 58.6 -30.6 14.4 average 29.0 58.7 -29.7 14.2 a annualized data from texas et network (2013). data based on historical climate records averaged over the 31 to 99 years of available information for each location. b difference between precipitation and eto, representing potential supplemental irrigation if desired to meet 100% eto. current recommendations, however, call for irrigation using crop coefficients (kc) adequate to each location and landscape species. c calculated from data presented by hermitte and mace (2012) for the 2004–2011 period. it is presumed that most of this outdoor water use is devoted to lawn and landscape irrigation. table 2. average annual precipitation and reference evapotranspiration (eto), their difference, and metered residential outdoor water in several texas cities. texas water journal, volume 4, number 2 21an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas trees, and turfgrass species, both native and adapted, that can be targeted to specific regions, and even zip codes, within the state (hipp et al. 1993, texas a&m agrilife extension service 2013, twdb 2010, welsh and welch 2001). several utilities, water districts, and municipalities in texas promote, and even have ordinances about, the use of these plants through rebates and incentives, providing listings of preferred, approved, and non-acceptable species (city of austin 2012, kolenc 2011, saws 2013b, texas a&m agrilife extension service 2013). although limited information on actual water use or requirements by most of the recommended resource-efficient plants and grasses is available, we endorse the principle that the use of properly chosen native and adaptive species to each region (i.e. soil and climate) should ensure their survival and ornamental performance within the limits of the expected average precipitation with little-to-no supplemental irrigation. this contention improves on the principles and practices of xeriscaping (welsh and welch 2001) and earthkind® landscaping (texas agrilife extension service 2010), which technically include recommendations for efficient irrigation, as well as wet zones within a landscape (baxter 2010). despite any past and present misconceptions that these water-saving landscaping plant palettes are mostly about desert plants (such as cactus and succulents), gravel, and rocks (phipps 2013), there is a large array of the above mentioned resourceand water-use efficient plants to choose for each ecogeographical region and soil type. with proper design and maintenance (including soil conditioning and mulching), these plants should provide aesthetically pleasing and environment-friendly landscapes with minimal requirements or needs for supplemental irrigation. landscape irrigation applications and scheduling based on climatological (i.e. eto) and soil moisture conditions have been investigated and promoted as viable practices that could lead to significant water conservation (pannkuk et al. 2010, dukes 2012). these concepts have led to the technological development of irrigation systems run by smart irrigation controllers based on evapotranspiration (et) or soil moisture sensors, which in principle suggest the potential for significant water savings compared to the traditional time-based controllers and calendar-based irrigation schedules (davis and dukes 2012). the use of et-based controllers has been shown, however, to result in over/under irrigation applications under both deficit irrigation and well-watered conditions (devitt et al. 2008, mayer et al. 2009, swanson and fipps 2012). results from a detailed 3-year evaluation study of et-based controllers in texas indicate that most of the available units still have issues with programming using an adequate number of parameters specific to each zone (burns 2011, swanson and fipps 2012). improper calculation of et and insufficient accounting for rainfall are among the main factors that cause for these controllers to over/under irrigate with respect to eto, and these issues seem to be exacerbated by variable and erratic weather patterns. based on results for 2011, the researchers found that controllers with on-site sensors generally performed better and more often irrigated closer to the recommendations of the texaset network than those that had eto information sent to the controller (swanson and fipps 2012). similar evaluations of et-based controllers under wetter florida conditions has found that several of them can match irrigation application with seasonal demand and in particular reduce irrigation in the winter when plant demands are dramatically reduced (davis and dukes 2012). on the other hand, when et controllers were applied to sites irrigating at levels less than plant demand, they actually increased irrigation. a major observation of both the florida and the texas studies was that a proper accounting for rainfall was a challenge for most of the evaluated et controllers. regarding landscape irrigation based on soil moisture sensors (sms), a recent literature review (dukes 2012) points out that its evaluation and demonstration of landscape irrigation has been very limited in comparison to et controllers. these sms require specific knowledge of the water-holding capacities of the soil(s) in each irrigation zone. most by-pass sms systems rely on a single sensor to control an entire irrigation system, requiring proper setting of the minimum moisture threshold that triggers irrigation and the run time cycles that will not exceed the water-holding capacities of the soil. the other sms irrigation system, on-demand control, consists of a stand-alone controller and multiple soil moisture sensors, a set-up that completely replaces the timer. as such, this system requires careful setting of the high and low soil moisture limits so that irrigation occurs only within those limits. expectedly, both sms systems require careful and proper placement of the sensor(s) in representative area(s) of the landscape. rain sensors, also known as rain switches, are devices that interrupt the communication between timers or smart controllers in response to rainfall, stopping unneeded irrigation and conserving water (dukes 2012, meeks et al. 2012). while significant water savings have been attributed to these sensors, ranging from 10% during dry conditions to ~30% in rainy conditions in humid climates, their overall performance can be erratic, and they often need to be replaced annually (meeks et al. 2012). a new generation of improved rain sensors suppress scheduled irrigation cycles based on forecast conditions, promising higher water savings compared to conventional rain sensors that will only suppress an irrigation cycle if a specific amount of rain has fallen. these forecasting rain sensors, like the idd™ (irrigation decision device from vepo llc), rely entirely in systematically transmitted forecasting information, via fm radio signal, by the manufacturer, requiring registration, annual fees, and completion of specific certification courses. texas water journal, volume 4, number 2 22 an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas any drawbacks of smart irrigation controllers and rain sensors, which are becoming more efficient in each generation (burns 2011, swanson and fipps 2012), can be overcome by proper and specific design of the irrigation system to the site, soil, plant materials, and their hydrozoning, and a thorough follow-up and fine-tuning after installation (dukes 2012). incorporation of landscape crop coefficients to et-based irrigation, effectively a deficit irrigation protocol, is a refinement that offers the potential for additional water savings while maintaining the aesthetic quality and function of ornamental plants and amenity turfgrasses (wherley 2011). the development of these coefficients for mixed landscape plantings has, however, been found challenging in recent studies, particularly when combining traditional (exotic, introduced) and native species (pannkuk et al. 2010). the only source of public, free of charge, and readily available (online) information on reference et and plant/crop across the state is the texas et network (2013). while this effort is gratefully acknowledged, the number of weather stations supplying information to this network is very small, and they are sparsely located, limiting their potential use and benefits across large areas of the state. the california cimis network (cimis 2013) is an outstanding example of an et and irrigation online network that has effectively partnered a land-grant university and a state water agency, and which has achieved extensive benefits in water conservation efforts in a state with robust agricultural and urban sectors. considering that agricultural and urban landscape irrigation are the first and third, respectively, largest users of water in texas, it is imperative to promote the expansion of this et network through adequate funding for suitable equipment and personnel. the same recommendation goes for the support and funding of projects and efforts to develop plant and crop coefficients (single and mixed plantings) for ornamental plants and turfgrasses recommended for water-conserving landscapes in texas. currently a team of horticulturists, agronomists, agricultural engineers, and extension personnel representing several texas a&m university campus, agencies and centers, are proposing these efforts. entities include texas a&m agrilife research, the texas a&m agrilife extension service, texas water resources institute, water conservation and technology center, texas a&m engineering experiment station, texas center for applied technology, along with collaborating partners from other state and municipal water-related agencies. another viable option to conserve potable water in urban environments is the use of alternative waters to irrigate landscape plantings, including saline (brackish) water, reclaimed water, condensate water, and graywater. brackish groundwater, whether it is from naturally saline aquifers (twdb 2013) or those affected by coastal saltwater intrusion (capuano and lindsay 2004), is abundant in texas, with an estimated volume of more than 2.7 billion acre-feet (twdb 2013). the twdb states that groundwater containing an electrical conductivity of up to 4.7 decisiemens per meter (3,000 milligrams per liter of total dissolved salts) could be employed for irrigation in those locations or dwellings where it is readily available. this salinity level, however, surpasses the maximum level of 1.0– 1.5 decisiemens per meter recommended for most landscape plants, in addition to high concentrations of specific ions, sodium, chloride, and boron in particular, that are particularly toxic to a good number of these (cabrera 2009, duncan et al. 2009, farnham et al. 1985). the aesthetics and performance of plants irrigated with such waters suffer significantly, more severely affecting woody shrubs and trees (cabrera 2009), with foliage showing scorching, chlorosis, and necrosis leading to their eventual death (niu and cabrera 2010, miyamoto and white 2002). turfgrasses and other annual plants, however, tend to be more tolerant of waters with higher concentrations of total soluble salts and these specific ions (duncan et al. 2009, niu and cabrera 2010). a judicious blending of some brackish and reclaimed waters with other high quality water sources can effectively be used to grow and maintain ornamental plants and crops, as highlighted by a successful commercial greenhouse operation in south texas (reed 1996). municipal reclaimed water has been considered a viable alternative for landscape irrigation. depending on the degree of water treatment for reclaimed waters, however, they could have similar drawbacks as brackish water, with relatively high levels of total salinity and undesirable specific ions (duncan et al. 2009, miyamoto et al. 2001). the quality of the reclaimed water produced by the san antonio water system in 2012 and 2013 is fairly good, with an average salinity of 1.1 decisiemens per meter, 180 milligrams per liter of alkalinity, 145 milligrams per liter of chlorides and 98 milligrams per liter of sodium. all these levels were slightly to moderately higher than those recommended for woody ornamental shrubs and trees, but still adequate for most annuals and turfgrasses (cabrera 2009, duncan et al. 2009, farnham et al. 1985). availability and supply of reclaimed water is unfortunately limited, as procedures regarding collection (of original raw sewage), treatment, and subsequent distribution are tightly regulated and require a separate pipeline system that only certain end-users can effectively have access to (saws 2013a). depending on the ultimate quality of reclaimed water, its use in landscape irrigation might require the use of modified sprinkler systems or drippers that minimize the potential contact with plants to reduce salt scorching (miyamoto and white 2002). these irrigation precautions are also required to minimize the risk of inadvertent human exposure to the recycled water, due to concerns with pathogenic microorganisms and other chemicals that could still be present in undesirable concentrations (duncan et al. 2009, saws 2006, toor and lusk 2011). texas water journal, volume 4, number 2 23an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas the successful use of saline (brackish) and reclaimed waters requires a judicious use of salt-tolerant plant and grass species, appropriate irrigation systems and techniques, leaching requirements, and shortand long-term management of urban soils and their associated watershed to minimize the accumulation of salt build-up and undesirable effects on the overall urban ecosystem (duncan et al. 2009, farnham et al. 1985, miyamoto and white 2002). condensate water from air-conditioning systems is a potential source for outdoor irrigation (guz 2005), particularly in sites with a relatively large indoor footprint versus landscape footprint, offering the possibility of letting them be “off the potable water grid” for landscape irrigation. the quality of condensates can actually be really good and require minimal treatment for storage and/or immediate use. condensate recovery systems in san antonio have worked so well that it recently became the first city to require all new commercial buildings to design drain lines so that condensate capture is practical (guz 2005). there are still design and engineering issues being addressed for their successful and cost-effective implementation, and in the case of landscape irrigation applications, these include storage, treatment (like chlorine injection to prevent bacterial growth), and hook-up to irrigation system. an additional alternative water source that has potential for landscape irrigation is graywater, which in the strictest sense is defined as residential wastewater from laundry, showers, and bathtubs (cabrera and leskovar 2013). graywater constitutes up to 60% of the total wastewater from a household, and might yield up to 30,000 gallons per year for an average family of 4 members (roesner et al. 2006). the volume generated by clothes washing machines represents about one-half of the total graywater produced by a household, which could potentially provide up to 4 inches to 5 inches of irrigation for an average-sized lawn/landscape. the routing of the drain hose from washing machines to a simple drip irrigation set-up would be a relatively inexpensive option to reuse this graywater compared to plumbing retrofits to reroute, capture, and use graywater effluent from bathtubs and showers. this washing machine graywater reuse could represent a substantial saving of potable water supplies if coupled with a well-designed low-pressure drip irrigation system and with use of native and adaptive (resource-efficient) plant materials. another feature of this simplified scenario would be the ability to reroute or reconnect the washing machine effluents back to the sewer system when not needed due to rainfall or low et. among the concerns that discourage an extensive and permitted use of graywater for landscape irrigation is a lack of documented knowledge (scientific and technical) on the shortand longterm effects of graywater on plants and soils. furthermore, and as with reclaimed water, there is the imperative need to identify its associated pathogenic organisms and chemicals that might be of concern for public/human health, in addition to the irrigation equipment considerations and practices needed to successfully manage and apply graywater (cabrera and leskovar 2013, roesner et al. 2006). concluding remarks population and economic growth, competition and environmental changes (i.e. drought) are putting tremendous pressures in the overall water balance (demand-availability) for texas today and in the decades ahead. while the agricultural sector has been the largest user of texas water resources, the increased growth and economic development in the state’s urban sector are shifting water use and allocation patterns, and concomitantly highlighting our limited knowledge on the actual water use efficiency by this latter sector and the documented improvements in the former. we believe the information and analysis provided in the present report makes a convincing argument for increased focus and funding to address current knowledge gaps and for the development of practices and recommendations that significantly enhance water conservation and use efficiency in urban activities, particularly landscape irrigation. a remarkable urban water conservation effort is that realized by the san antonio water system over the last 2 decades, basically using about the same amount of water that it used in 1984, despite a 67% increase in population — or dropping the per capita water use by ~40%, from 222 to 136 gallons (atencio 2013, postel 2011). because peak demand during dry periods is a growing challenge as supplies are curtailed, the updated san antonio water system water management plan (2012) puts particular emphasis on water conservation efforts, most of them targeted to significant reductions in landscape irrigation. while these efforts and programs certainly provide examples to study and emulate by other municipalities across the state, nevertheless, we contend that sound research-based results and outreach education efforts are still sorely needed to help these entities achieve their urban water use efficiency and conservation goals. we need studies, pilot and demonstrative projects, that provide refinements on, and ultimately integrate, the combined use of native and adaptive plants and mixed landscape crop coefficients suitable to specific ecogeographical regions, smart irrigation technologies and management of alternative water sources. multidisciplinary, intraand inter-institutional efforts and collaborations between research/educational institutions with local and state water-related agencies should expedite the generation of this knowledge, along with practical applications and solutions. texas water journal, volume 4, number 2 24 an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas references atencio d. 2013. san antonio sets example for water conservation in texas. texas green report [internet]. austin (texas): lone star chapter of sierra club; [cited 2013 may 5]. available from: 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[saws] san antonio water system. 2012. water management plan. san antonio (texas): san antonio water system. 49 p. http://hortbusiness.ifas.ufl.edu/pubs/eir02-4r.pdf http://hortbusiness.ifas.ufl.edu/pubs/eir02-4r.pdf http://www.elpasotimes.com/living/ci_18307450 http://www.elpasotimes.com/living/ci_18307450 http://www.lsgcsa.org/ http://www.aquacraft.com/node/32 http://www.agcensus.usda.gov/publications/2007/full_report/ http://www.agcensus.usda.gov/publications/2007/full_report/ http://www.nrpa.org/uploadedfiles/nrpa.org/publications_and_research/research/papers/parks-rec-underserved-areas.pdf http://www.nrpa.org/uploadedfiles/nrpa.org/publications_and_research/research/papers/parks-rec-underserved-areas.pdf http://www.nrpa.org/uploadedfiles/nrpa.org/publications_and_research/research/papers/parks-rec-underserved-areas.pdf http://www.gardeningknowhow.com/special/xeriscape/the-truth-about-xeriscaping-common-misconceptions-exposed.htm http://www.gardeningknowhow.com/special/xeriscape/the-truth-about-xeriscaping-common-misconceptions-exposed.htm http://www.gardeningknowhow.com/special/xeriscape/the-truth-about-xeriscaping-common-misconceptions-exposed.htm http://newswatch.nationalgeographic.com/2011/07/14/conservation-in-san-antonio-is-saving-more-than-water/ http://newswatch.nationalgeographic.com/2011/07/14/conservation-in-san-antonio-is-saving-more-than-water/ http://newswatch.nationalgeographic.com/2011/07/14/conservation-in-san-antonio-is-saving-more-than-water/ texas water journal, volume 4, number 2 26 an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas [saws] san antonio water system. 2013a. irrigational & industrial recycled water [internet]. san antonio (texas): san antonio water system; [cited 2013 april 5]. available from: http://www.saws.org/your_water/waterresources/projects/recycled.cfm [saws] san antonio water system. 2013b. saws approved plant list: add amazing color, texture and even shade to your water-wise landscape [internet]. san antonio (texas): san antonio water system; [cited 2013 april 30]. available from: http://www.saws.org/conservation/outdoor/plants/index.cfm [saws] san antonio water system. 2013c. watering efficiently [internet]. san antonio (texas): san antonio water system; [cited 2013 june 24]. available from: http://www.saws.org/conservation/outdoor/watering.cfm smith p, riley g. 2012. drought takes toll on urban forest. tnla green texas nursery and landscape association. april 2012 issue, p. 27-28. swanson c, fipps g. 2012. evaluation of smart irrigation controllers: year 2011 results. college station (texas): texas water resources institute. technical report: tr-428. 29 p. [tceq] texas commission on environmental quality. 2013. map of water systems under water use restriction [internet]. austin (texas): texas commission on environmental quality; [cited 2013 june 24]. available from: http:// www.tceq.texas.gov/drinkingwater/trot/location.html texas et network. 2013. [internet]. college station (texas): texas a&m agrilife extension, irrigation technology program; [cited 2013 february 4]. http://texaset.tamu. edu/ texas turfgrass association [internet]. college station (texas): texas turfgrass association. available from: http:// texasturf.com/ texas agrilife extension service. 2010. earth-kind® landscaping: water conservation [internet]. college station (texas): texas agrilife extension service; [cited 2013 march 28]. 5 p. available from: h t t p : / / a g g i e h o r t i c u l t u r e . t a m u . e d u / e a r t h k i n d / files/2010/10/waterconservation.pdf texas a&m agrilife extension service. 2013. texas urban landscape guide [internet]. college station (texas): texas a&m agrilife extension service in cooperation with texas nursery & landscape association and the texas water development board; [cited 2013 march 28]. available from: http://urbanlandscapeguide.tamu.edu/ texas a&m forest service. 2012. texas a&m forest service survey shows 301 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march 28]. 2p. available from: http://www.twdb. texas.gov/publications/shells/desal_brackish.pdf the trust for public land. 2012. acres of parkland by city and agency [internet]. san francisco (california): the trust for public land; [cited 2012 april 27]. available from: http://cityparksurvey.tpl.org/reports/report_display.asp?rid=2 throssell cs, lyman gt, johnson me, stacey ga, brown cd. 2009. golf course environmental profile measures water use, source, cost, quality, and management and conservation strategies. applied turfgrass science [internet]. doi:10.1094/ats-2009-0129-01-rs toor gs, lusk m. 2011. reclaimed water use in the landscape: constituents of concern in reclaimed water. gainesville (florida): university of florida, institute of food and agricultural sciences, florida cooperative extension service, 8 p. document sl338. turner cg, mcafee k, pandey s, sunley a. 2011. irrigation metering and water use estimates: a comparative analysis, 1999–2007. austin (texas): texas water development board. 147 p. report 378. united states census bureau. 2012. statistical abstract of the united states: 2012. the national data book [internet]. washington dc: united states census bureau; [cited 2012 may 1]. construction & housing, section 20, p. 961-1006. available from: http://www.census.gov/prod/ 2011pubs/12statab/construct.pdf united states census bureau. 2013a. 2007 economic census [internet]. washington dc: united states census bureau; [cited 2013 february 15]. available from: http:// www.census.gov/econ/susb/data/susb2007.html united states census bureau. 2013b. texas, state & county quick facts [internet]. washington dc: united states census bureau; [cited 2013 march 13]. available from: http://quickfacts.census.gov/qfd/states/48000.html http://www.saws.org/your_water/waterresources/projects/recycled.cfm http://www.saws.org/your_water/waterresources/projects/recycled.cfm http://www.saws.org/conservation/outdoor/plants/index.cfm http://www.saws.org/conservation/outdoor/plants/index.cfm http://www.saws.org/conservation/outdoor/watering.cfm http://www.tceq.texas.gov/drinkingwater/trot/location.html http://www.tceq.texas.gov/drinkingwater/trot/location.html http://texaset.tamu.edu/ http://texaset.tamu.edu/ http://texasturf.com/ http://texasturf.com/ http://aggie-horticulture.tamu.edu/earthkind/files/2010/10/waterconservation.pdf http://aggie-horticulture.tamu.edu/earthkind/files/2010/10/waterconservation.pdf http://urbanlandscapeguide.tamu.edu/ http://texasforestservice.tamu.edu/main/popup.aspx?id=16509 http://texasforestservice.tamu.edu/main/popup.aspx?id=16509 http://www.thecb.state.tx.us/ http://www.twdb.texas.gov/publications/brochures/conservation/doc/waterguide.pdf http://www.twdb.texas.gov/publications/brochures/conservation/doc/waterguide.pdf http://www.twdb.texas.gov/publications/brochures/conservation/doc/waterguide.pdf http://www.twdb.state.tx.us/publications/state_water_plan/2012/00.pdf http://www.twdb.state.tx.us/publications/state_water_plan/2012/00.pdf http://www.twdb.texas.gov/publications/shells/desal_brackish.pdf http://www.twdb.texas.gov/publications/shells/desal_brackish.pdf http://cityparksurvey.tpl.org/reports/report_display.asp?rid=2 http://cityparksurvey.tpl.org/reports/report_display.asp?rid=2 http://www.census.gov/prod/2011pubs/12statab/construct.pdf http://www.census.gov/prod/2011pubs/12statab/construct.pdf http://quickfacts.census.gov/qfd/states/48000.html texas water journal, volume 4, number 2 27an evaluation of urban landscape water use in texas an evaluation of urban landscape water use in texas van lare p, arigoni d. 2006. growing toward more efficient water use: linking development, infrastructure, and drinking water policies. washington dc: environmental protection agency, development, community, and environment division. 39 p. epa 230-r-06-001. vinlove fk, torla rf. 1995. comparative estimations of u.s. home lawn area. journal of turfgrass management 1:83– 97. wagner kl. 2012. status and trends of irrigated agriculture in texas. a special report by the texas water resources institute, texas a&m university. college station (texas): texas water resources institute. 6 p. educational material em-115. warsaw al, fernandez rt, cregg bm, andresen ja. 2009. water conservation, growth and water use efficiency of container-grown woody ornamentals irrigated based on daily water use. hortscience 44(5):1308–1318. welsh df, welch wc. 2001. xeriscape™: landscape water conservation. college station (texas): texas agricultural extension service, texas a&m university system. 16 p. publication b-1584. wherley b. 2011. turfgrass growth, quality, and reflective heat load in response to deficit irrigation practices. in: labedzki l., editor, evapotranspiration [internet]. manhattan (new york): intech. available from: http://www.intechopen. com/books/evapotranspiration/turfgrass-growth-quality-and-reflective-heat-load-in-response-to-deficit-irrigation-practices. doi: 10.5772/15064. white rh, havlak r, nations j, pannkuk tr, thomas j, chalmers d, dewey d. 2004. how much water is enough? using pet to develop water budgets for residential landscapes. college station (texas): texas water resources institute, texas a&m university. 8 p. technical report tr-271. http://www.intechopen.com/books/evapotranspiration/turfgrass-growth-quality-and-reflective-heat-load-in-response-to-deficit-irrigation-practices http://www.intechopen.com/books/evapotranspiration/turfgrass-growth-quality-and-reflective-heat-load-in-response-to-deficit-irrigation-practices http://www.intechopen.com/books/evapotranspiration/turfgrass-growth-quality-and-reflective-heat-load-in-response-to-deficit-irrigation-practices http://www.intechopen.com/books/evapotranspiration/turfgrass-growth-quality-and-reflective-heat-load-in-response-to-deficit-irrigation-practices oilfield water infrastructure connectivity: the case for a ‘hydrovascular’ network in the permian basin texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 11 number 1 | 2020 https://www.texaswaterjournal.org volume 11, number 1 2020 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineer-ing, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. rosario sanchez, ph.d. texas water resources institute managing editor chantal cough-schulze texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. trinity university editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university cover photo: tres palacios river at fm 1468 near clemville, texas. ©2019 ed rhodes, twri. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. https://twj-ojs-tdl.tdl.org/twj/index.php/twj/support https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water journal, volume 11, number 1 texas water resources institute texas water journal volume 11, number 1, february 25, 2020 pages 15-31 abstract: the current phase of oilfield water infrastructure buildout in the permian basin generally emphasizes each operator or midstream provider building its own water transportation and disposal systems. accordingly, the overall market is balkanized and inefficient compared to the performance a more interconnected system could achieve. a hydrovascular grid in the permian basin could lower oil and gas production costs, conserve scarce freshwater by promoting greater recycling and reuse of produced water, help mitigate seismicity risks, and facilitate movement of produced water at large scale for use outside the oilfield. this paper assesses the barriers to such integration. it concludes by offering a set of practical ideas to overcome these barriers and help transform oilfield water into a resource for west texas and southeast new mexico. keywords: hydrovascular grid, oilfield, produced water, market, infrastructure oilfield water infrastructure connectivity: the case for a ‘hydrovascular’ network in the permian basin 1 baker institute for public policy, rice university * corresponding author: gbc3@rice.edu ** note: the opinions and ideas expressed in this piece are those of the author alone and do not represent the views or positions of the baker institute or rice university. *** disclosure statement: mr. collins holds a membership interest in cactus water services, llc. this relationship is covered by a rice university conflict of interest management and monitoring plan. citation: collins g. 2020. oilfield water infrastructure connectivity: the case for a ‘hydrovascular’ network in the permian basin. texas water journal. 11(1):15-31. available from: https://doi.org/10.21423/twj.v11i1.7102. © 2020 gabriel collins. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/. gabriel collins1, *, **, *** mailto:gbc3%40rice.edu?subject= https://doi.org/10.21423/twj.v11i1.7102 https://creativecommons.org/licenses/by/4.0/ texas water journal, volume 11, number 1 oilfield water infrastructure connectivity:16 terms used in paper acronym descriptive term aomd(s) area(s) of market dominance bpd barrels per day capex capital expenditures e&p exploration and production ebitda earnings before interest, taxes, depletion, and amortization libor london inter-bank offered rate roce return on capital employed swd(s) saltwater disposal well(s) tds total dissolved solids introduction the permian basin now accounts for nearly 5% of global oil production. to unlock this hydrocarbon bounty, oil companies in the permian basin of new mexico and texas used about 5 million barrels per day (bpd) of water for hydrologic fracturing frack water as of q4 2018. this approaches the average annual municipal water demand of san antonio (gorzell et al. 2018). on the produced water side—analogous to wastewater in cities—the permian basin is even larger. average daily total water injection volumes are more than twice the volume of wastewater houston (texas’s largest city and the united states’ fourth-largest) treated on an average day in 2018 (brown and riggans 2018). the volume of produced water from unconventional wells alone could reach 35 million bpd within the next decade (addison 2019). to accommodate water volume growth and help facilitate continued robust oil and gas production activity in the permian basin, water services providers must be able to economically manage the resulting tsunami. a more interconnected hydrovascular grid in the permian basin oilfield can help facilitate economically and hydrologically optimal water management solutions and turn oilfield water from a waste into a true resource for the region. the hydrovascular grid concept “we would create a hydrovascular market, where we would have major arterials to convey water throughout the state. for us to develop this and to develop new water—whether it be desalination or reclaimed water or bring water from out of state—all of that needs to be looked at from a 50,000-foot view,” (schladen 2015). the idea of large-scale, highly connected water infrastructure to link regions of plenty to regions of scarcity in texas dates to the 2015 legislative session. house bill 3298 called for the texas water development board to study the potential for developing a water market and conveyance network that would eventually become a hydrovascular grid spanning multiple regions statewide (2015). the bill did not become law and the issue has, legislatively speaking, lain dormant for 4 years and running (h.b. 3298 . . . 2015). municipal water grids are challenging to interconnect for a range of reasons, including politics and quality concerns stemming from the fact that humans drink the water being transferred across systems. the oilfield water space offers much better near-term potential for creating a regional hydrovascular grid, and the ongoing scale-up and consolidation of water midstream systems in the permian basin could potentially create a partial hydrovascular grid in that region within 3–5 years (collins 2019b). pressing needs for larger-scale water solutions, coupled with a market ecosystem that would be driven primarily by commercial interests, creates an environment where systems that are consolidating now for market reasons could be strategically linked together to facilitate wheeling of oilfield water within the permian basin. consolidation in turn can facilitate optimal utilization of disposal well and recycling capacity and, potentially, the construction of larger-scale infrastructure that allows water to be moved outside the permian basin to the mutual economic and hydrological benefit of multiple stakeholders. the core hypothesis underlying the emergence of a permian basin hydrovascular grid is that the oilfield water market in the delaware and midland basins will gradually coalesce into several large areas of market dominance (aomds) as texas water journal, volume 11, number 1 17the case for a ‘hydrovascular’ network in the permian basin water midstream firms and their exploration and production (e&p) customers consolidate. the emergence of these broad aomds—akin to the watershed feeding a river system—opens the opportunity for optimized pipeline connectivity between the various oilfield watersheds that will, economics permitting, allow wheeling and movement of water in a manner that is largely impossible at present. the areas of market dominance may also add a self-fulfilling prophecy dimension because they could offer appealing scale to large strategic buyers who possess the financial incentives, operational know how, and finances to further stitch up the permian basin oilfield water space. figure 1 shows two snapshots of how prospective consolidators are beginning to emerge amidst the fragmentation that has characterized oilfield water management in the permian basin for much of the past several years. one possible outcome is that the largest midstreams such as kinder morgan or plains all-american pipeline could conceivably add water to their extensive existing crude, gas, and products midstream portfolios.1 it is also possible that the biggest existing players in the permian basin oilfield water space at present could bulk up even further and seek to dominate the permian basin moving forward. ngl energy partners, which has made a strategic decision to focus on the northern delaware basin, appears to be substantially de-emphasizing its traditional hydrocarbon midstream businesses and bulking up instead on permian basin water assets. for ngl, water services accounted for 29% of firmwide earnings before interest, taxes, depletion, and amortization (ebitda) in fiscal year 2018, but this proportion rises to roughly 50% of the firm’s projected fiscal year 2020 ebitda (ngl energy partners lp 2019). 1 see, for instance wethe d. 21 june 2019. dirty water holds biggest promise for pipeline companies, jefferies says. bloomberg. available from: https://www.bloomberg.com/news/articles/2019-06-21/dirty-water-holdsbiggest-promise-for-pipelines-jefferies-says. among the “pure play” water midstream firms, waterbridge stands out for its fast-moving and big-dollar mergers and acquisitions activity. data for the company’s publicly reported transactions suggests that in the central and southern delaware basin, it has spent close to $700 million on acquisitions since february 2018 (collins 2019a). this is almost certainly a significant underestimate, since it includes neither the 2017 purchase of enwater nor the 100,000 series-a1 preferred units transferred to concho as part of a december 2018 purchase of produced water assets and acreage dedication (waterbridge 2017; concho resources inc. 2019). including the potential value of these two items could reasonably drive waterbridge’s delaware basin entry cost to date as high as $800 to $850 million. motivations for promoting greater connectivity between permian basin water systems before delving into the challenges—many of them substantial—that a permian basin hydrovascular grid would face, it is worth considering what is at stake as operators in the permian basin search for high-volume, economically advantaged, and stable water solutions. a more integrated set of water handling networks can help oil and gas producers rationalize investment plans and shift water-related capital investments off their balance sheets. investors increasingly demand capital spending discipline, while companies must offset the high natural rate of decline in horizontal wells while also trying to grow production (matthews and elliott 2019). in such an environment, spending $5–6 million dollars to drill, complete, and equip a shallow disposal well and as much as $10 million for a deep devonian/ ellenburger disposal well plus additional investment in water pipelines becomes tougher to justify. figure 1. the case for oilfield water interconnectivity. source: ngl energy partners lp 2019, rattler midstream 2019, author’s analysis. https://www.bloomberg.com/news/articles/2019-06-21/dirty-water-holds-biggest-promise-for-pipelines-jefferies-says https://www.bloomberg.com/news/articles/2019-06-21/dirty-water-holds-biggest-promise-for-pipelines-jefferies-says texas water journal, volume 11, number 1 oilfield water infrastructure connectivity:18 the case worsens when one considers proprietary water networks’ generally low average utilization rates and that the funds invested in them could otherwise have been used to drill oil and gas wells. low utilization rates affect the return on capital employed (roce) and help illustrate the potential balance sheet consequences of investing funds in self-operated water systems rather than drilling oil and gas wells. roce gives a directional sense as to how management may elect to deploy capital on projects, especially in a “live within cashflow” environment such as the one e&ps now must operate in. commercial water systems may well be able to meet the 15% roce threshold that the most competitive permian basin-focused e&p companies can reap from oil and gas production investments. but most firms will likely fall short of that mark unless their system is optimally utilized and/or they operate in an area where a quasi-monopoly water services provider is charging high prices that create incentives to invest in proprietary water systems on the basis that avoided costs are effectively an economic gain that delivers a form of return on investment. legacy investments in proprietary water infrastructure are tempting monetization targets at present in part because recent comparable transactions suggest a higher roce on dollars invested in saltwater disposal wells (swds) and pipelines than for dollars sunk into oil and gas wellbores. water management is also not a core competency or management focus for most oil and gas operators, even though it is operationally critical. broadly speaking, investors are likely to cast a jaundiced eye on additional water system investments that could have gone to oil and gas development. to that end, the more publicly traded midstream names there are with meaningful water exposure, the more pressure investors will likely exert on e&ps to focus capital expenditures (capex) on their core business and not plough money into midstream operations (for interested readers, the author can share specific details of selected oil and gas producers’ water divestiture transactions and some of the likely reasoning behind them). treating water assets as truly commercial systems that are substantively open to third-party commercial volumes sets the stage for a more efficient marketplace. but perhaps the biggest challenge to creating a more interlinked set of permian basin oilfield water infrastructure comes from the need to reconcile capital providers’ expectations with evolving market realities. consider the example of jagged peak energy and felix water, who have water systems in ward and winkler counties that substantially overlap one another (figure 2). each company has invested sizeable sums of capital. jagged peak reports spending $89 million on water infrastructure as of june 30 2019 (jagged peak energy 2019). felix water does not disclose total capex, but with 22 operating swds and 190 miles of produced water pipelines (felix water n.d.), the figure 2. jagged peak and felix water delaware basin pipeline systems. source: felix water n.d., jagged peak energy 2019, company reports, author’s analysis. texas water journal, volume 11, number 1 19the case for a ‘hydrovascular’ network in the permian basin author estimates it has likely spent more than $150 million (assuming $6 million per swd and a 4-inch weighted average pipeline diameter at $35,000 per inch-mile). as such, the combined cost of the two systems could exceed $250 million. yet the actual texas railroad commission data on water received by the saltwater disposal wells in each system (a proxy for overall flows) suggest that both networks are highly underutilized, with average capacity utilization rates in the neighborhood of 40% over the past 2 years (figure 3). capital might have been better deployed building shared infrastructure that connects more producers, with the balance saved either deployed to build a water system with even greater geographical coverage or spun back to shareholders or used to drill oil and gas wells. it bears noting that each of the companies in this example aggressively expanded system capacity between the second quarter of 2017 and the second quarter of 2019, suggesting a temporal overlap that would have offered an ideal window for building infrastructure more collaboratively and thus optimizing capacity investments. to frame the potential savings in terms of what the capital could have done, consider that 30-inch hdpe pipe likely costs about $1 million per mile installed (assuming $35,000 per inch-mile total installation cost), based on the author’s conversations with industry experts. thus, a delaware swd completed with surface facilities is, in capex terms, equal to about 6 miles of large-diameter pipe and a devonian swd worth closer to 10 miles of large diameter pipe linking one system to another. optimizing capex becomes especially important if the permian basin is transitioning into a production regime where activity remains substantial, but production of oil and gas (and by extension, water) grows more slowly. the new normal for annual output growth could be net increases on the order of 200 thousand bpd, as opposed to the heady days of 2017 and 2018 where oil production increased by 733 thousand bpd and 1 million bpd, respectively (calculated using oil production changed from january to december in 2017 and 2018; drilling productivity report 2013–2019). the output slowdown could stem from at least two core factors, and both matter for water midstream development strategies. first, some analysts suggest that the rate of increase in well productivity may be slowing.2 second, operators are encountering what appear to be hard physical limits on how closely wells can be spaced without adversely affecting each other’s productivity.3 this means that at a given price level, operators are likely to drill fewer wells in a given block of acreage than might have been the case previously. lower density development means water midstream companies may need to cover larger physical footprints to achieve a given volume and returns profile. consider, for instance, wolfcamp a horizontal wells with 1.5 million barrels of expected lifetime water production. spacing of 440 feet between wells (an aggressive number) would suggest 12 wells per section 2 for an example of the bullish view, see rystad says permian well productivity is just fine. 2019 aug 5. journal of petroleum technology. available from: https://www.spe.org/en/jpt/jpt-article-detail/?art=5802. for a bearish view, see analytics firm: permian fracturing work underreported by 21% in 2018. 2019 jul 24. journal of petroleum technology. available from: https://www.spe.org/en/jpt/jpt-article-detail/?art=5763. 3 see, for instance concho resources. 2019 1 aug. investors: sec filings (2019, quarterly). available from: https://ir.concho.com/investors/ financial-reports/sec-filings/default.aspx. copy on file with author. as well as olson b. 2019 jul 4. a fracking experiment fails to pump as predicted. the wall street journal. available from: https://www.wsj.com/articles/a-frackingexperiment-fails-to-pump-as-predicted-11562232601. figure 3. capacity utilization of jagged peak and felix water systems. volume throughput: green line, vertical axis; capacity utilization: red line, horizontal axis. source: texas railroad commission 2019, author’s analysis. https://www.spe.org/en/jpt/jpt-article-detail/?art=5763 https://www.wsj.com/articles/a-fracking-experiment-fails-to-pump-as-predicted-11562232601 https://www.wsj.com/articles/a-fracking-experiment-fails-to-pump-as-predicted-11562232601 texas water journal, volume 11, number 1 oilfield water infrastructure connectivity:20 to drill disposal wells and actually install the infrastructure can be more than twice as long. the ability to dynamically share capacity across systems can help developers rightsize systems to maximize capital efficiency. unexpected peaks could be routed into other networked water systems, thus reducing the need to overbuild capacity on the front end and risk stranding capital if development slows or does not occur at the rate or scale originally planned. capacity sharing also would help water management firms mitigate risk from commodity price shifts that cause drilling and completion activity to decrease, potentially leaving them with a high capital mortgage on underutilized assets. this risk is more pronounced than commonly acknowledged because the water flows from unconventional wells broadly mimic the wells’ oil and gas production curves—heavily frontloaded with a material portion of total lifetime water volume coming in the first 2–3 years of well life (figure 4). being able to wheel water around a larger network might also allow water midstream operators to offer more flexible contract structures to operators by reducing the dependence on any single operator as an anchor customer of the infrastructure. the degree to which this remains true in practice in a given area will depend on the ultimate market concentration that results as e&p operators continue to consolidate. could be drilled in that bench, implying the opportunity for a midstream firm to gather 18 million barrels of lifetime produced water from that single 640-acre section. but conservative spacing of 1,320 feet between wells (4 wells per section per bench) now being tested by multiple permian basin operators would chop that cumulative water total down to 6 million barrels (jagged peak energy 2019; laredo petroleum 2019).4 this would force the midstream firm to potentially amass three times as much dedicated acreage to obtain the same volume of water it had expected before. needing more acreage to obtain a given produced water volume also exposes water midstream companies to a higher degree of geological risk, as reservoirs can vary dramatically across a tract. this also reinforces how interconnectivity between systems that allows water midstream management teams to potentially minimize their upfront capital investments and adopt a “wait and see” attitude for future capacity additions can enhance capital efficiency, profitability, and reduce investor risk. interconnectivity can also help water midstream firms more effectively manage temporal risk—namely, the fact that oil and gas wells can be drilled, completed, and brought to sales in 2–5 months, while the time needed to obtain permits 4 see, for instance jagged peak energy 2019 and laredo petroleum 2019. figure 4. permian basin unconventional wells’ water production is frontloaded just like oil and gas output is. source: new mexico oil conservation division 2019, author’s analysis. texas water journal, volume 11, number 1 21the case for a ‘hydrovascular’ network in the permian basin other benefits of greater oilfield water infrastructure connectivity an oilfield water hydrovascular grid also yields a number of other benefits beyond capital efficiency, including enhancements to social license to operate, as well as the use of produced water in creative, nontraditional ways outside of the oilfield. water movement plays an outsize role in oilfield safety issues, which in turn directly influence firms’ social license to operate. the author’s modelling of a prototypical delaware basin horizontal well with a 2-mile lateral suggests that the combined lifetime mass of inputs used to drill and complete the well and the fluids produced from it exceeds 400 thousand metric tons (figure 5). of that total, over 325 thousand metric tons, or nearly the mass of the empire state building, comes from water (collins 2018b). note here that mass is used instead of volume because mass is what ultimately destroys roads and causes many of the water-driven social impacts currently seen across the oilfield. significant amounts of water still move by truck in the permian basin. one key end result of this is a road death rate in the core permian basin counties of texas that is on par with that of russia, one of the world’s most dangerous industrialized countries to drive in (collins 2018a). water movement in trucks also inflicts severe road damage that outstrips local governments’ ability to pay for repairs and, if left unchecked, could negate much of the benefit that planned road investments in the permian basin are otherwise poised to provide. broader interconnectivity between water pipeline systems can help take more trucks off the roads. improved connections between oilfield water systems can also help manage seismicity issues. seismic activity is emerging as a particular challenge in parts of the delaware basin, where the texas railroad commission has adopted a risk-based permitting approach that can dramatically increase the time needed to get a saltwater disposal well permit and can also lead to significant cutbacks in allowable daily injection volumes. if cutbacks were imposed after a developer had sunk capital into a disposal well network, the economic impacts could be severe at the project level (collins 2018d). thus, being able to weave multiple water networks together with pipelines could allow water services providers in seismically active areas to optimize their investments in tough to obtain disposal wells and allow diversion of water to other disposal wells if future seismic events prompted regulatory cutbacks to injection volumes. greater oilfield water system connectivity can also help promote produced water recycling and the conservation of precious local freshwater resources in the permian basin. consolidation figure 5. mass of inputs and outputs from drilling and completion of and production from a 2-mile lateral delaware basin oil well. source: fracfocus 2019, author’s analysis. texas water journal, volume 11, number 1 oilfield water infrastructure connectivity:22 of water systems and the creation of a broader hydrovascular grid will likely promote greater levels of water trading and recycling. system interconnections can facilitate swaps and dynamic trading of water volumes that will help make the oilfield water space more like the developed commodity markets seen in oil and gas midstream or electrical power (figure 6). both of these sectors are very capex and infrastructure-intensive, but oil and gas molecules and electrons are generally substantially more fungible than water molecules are in most of today’s permian basin water systems. consider the following illustrative example: e&p company a delivers water for disposal into midstream company a’s system at a charge of $0.70 per barrel, while e&p company b, which is hooked up to midstream company b’s pipeline system, needs water 15 miles away for a frac. midstream a is linked by a pipeline to midstream b and is operating near the capacity of its system, while midstream b is underutilized and has headroom to work with. midstream a can thus either allow midstream b to take a certain volume of water free of charge (because the reduction in swd operating cost increases its profits) or charge midstream b a reduced rate relative to freshwater or treated produced water prices in the area—say $0.15 per barrel—and also make an additional profit while avoiding disposal costs on the water sent out of system (figure 7). assume it costs midstream company a $0.20 per barrel to dispose of or recycle the water in the most expensive facilities in its system because the low-cost options are full. further assume that it costs $0.10 per barrel to pipe the raw produced water to midstream b’s system, and midstream b will pay $0.10 per barrel for delivered raw produced water. midstream a can thus make a net gain of $0.20 per barrel of water shipped to midstream b rather than using the highest cost marginal disposal wells available in its own system.5 such a future with pipeline-grade produced water that can be exchanged between systems with minimal to no additional treatment is already rapidly emerging and will only gain steam with further consolidation.6 solutions beyond the oilfield consolidation may also open the door for out-of-basin water movement at a scale far larger than what is seen today. largescale midstream infrastructure has the potential to enable creative new uses of water beyond disposal and recycling alone.7 this would likely require utility-scale systems with pipelines that could be 36 inches in diameter or larger. these ideas also presuppose two other developments: (1) a higher degree of interconnection between oilfield water handling footprints, 5 $0.10 is avoided cost pipeline shipping cost from sidestepping a’s highest cost disposal assets and $0.10 of the total comes from b’s actual payment for the raw produced water. 6 the idea of pipeline grade produced water comes from the natural gas industry, where gas must meet certain quality specifications in order to be considered of pipeline quality and be sold into commercial pipeline systems. see, for instance, foss mm. 2004. interstate natural gas—quality specifications & interchangeability. sugar land, tx: center for energy economics. available from: http://www.beg.utexas.edu/files/energyecon/ global-gas-and-lng/cee_interstate_natural_gas_quality_specifications_ and_interchangeability.pdf. 7 it is also important to start thinking now about repurposing part of the produced water stream, so that the practices and technologies have a better chance of being deployable at scale when oilfield recycling demand begins to slow in coming years as parts of the delaware and midland basins reach maturity. figure 6. how greater water infrastructure connectivity can facilitate more dynamic commercial and financial structures. http://www.beg.utexas.edu/files/energyecon/global-gas-and-lng/cee_interstate_natural_gas_quality_specifications_and_interchangeability.pdf http://www.beg.utexas.edu/files/energyecon/global-gas-and-lng/cee_interstate_natural_gas_quality_specifications_and_interchangeability.pdf http://www.beg.utexas.edu/files/energyecon/global-gas-and-lng/cee_interstate_natural_gas_quality_specifications_and_interchangeability.pdf texas water journal, volume 11, number 1 23the case for a ‘hydrovascular’ network in the permian basin which at this point in time are highly fragmented, and (2) lower-cost treatments that can provide “upgraded” produced water at scale. repurposing may eventually involve local agricultural use, as well as longer distance transport to cities or industrial consumers located far from the oilfield. for liability reasons, the initial agricultural uses of treated produced water are likely to focus on crops such as cotton and biofuel feedstocks (switchgrass or algae, for instance) that humans do not consume by taking into their bodies. the “non-consumption” distinction is made here to clarify that even certain non-food items such as hemp still yield outputs that humans introduce into their bodies. it is also essential to do substantially more research into the potential long-term impacts on soil of irrigating with various concentrations of produced water. possible agricultural uses at least one preliminary trial shows some promise. texas a&m university researchers and anadarko (now owned by oxy) conducted a pilot study near pecos, tx in 2015 that entailed irrigating cotton plots with a blend of freshwater and treated produced water (lewis 2015). while the study’s results were not peer-reviewed, in its particular case the data showed that cotton lint yields remained stable, and the use of the blended water suggested the potential for better managing soil salinity and potentially improving soil quality (lewis 2015). there is an urgent need for peer-reviewed scientific studies that span multiple crops and multiple growing seasons on the same land plots, and the plant science community is beginning to deliver these. at least two recent studies have irrigated spring wheat with blended produced water from the niobrara formation in the denver-julesburg basin of northeastern colorado. the first analysis irrigated wheat groups with fort collins, colorado municipal tap water, a 10% produced water/90% tap water blend, a 50% produced water/50% tap water blend, and a salinity control solution that incorporated sodium chloride to match the total dissolved solids (tds) content of the 50% produced water blend (sedlacko et al. 2019). wheat irrigated with both produced water blends suffered significant declines in plant size and grain yield relative even to the high salinity control solution, suggesting that chemical components of the produced water other than salinity were adversely impacting plant health (sedlacko et al. 2019). some members of the research group then conducted a follow-on study using the same water blends to investigate the impacts varying blends of produced water might have on spring wheat’s immune response to one bacterial pathogen and one fungal pathogen (miller et al. 2019). the research revealed that wheat irrigated with both produced water blends (10% and 50%) experienced figure 7. simple illustration of gains through trade facilitated by interconnectivity. texas water journal, volume 11, number 1 oilfield water infrastructure connectivity:24 significant immune system suppression relative to the tap water and high-salinity irrigated test groups. the researchers hypothesized that the physiological effects on the plants could be explained by both inorganic constituents such as boron and hydrocarbon-related organic compounds in the water (miller et al. 2019). as other scientists conduct similar analyses using waters derived from permian basin wells, more heavily treated produced water, and different crops, sector participants will be able to more clearly assess whether produced water indeed offers upside as an irrigation water source. if certain waters/crops prove tolerant of irrigation with produced water, a large and ongoing body of work on saline agriculture in other parts of the world potentially offers insights for farmers in the permian basin who might contemplate greater use of produced water as part of their irrigation water supply. the international center for biosaline agriculture (icba), based in the united arab emirates, is a global leader in developing a range of salt-tolerant crops, including quinoa, mustard, sesbania, safflower, triticale, and salicornia (icba 2018). these plant strains have generally not yet been commercialized but are sufficiently salt-tolerant that they can even be irrigated with seawater (approximately 35,000 mg/l tds), suggesting that they could utilize blended produced water if other chemical constituents in the water do not harm them. salicornia, a member of the beet and spinach family also known as glasswort, already has at least one variety that grows wild along the texas coast, and the species more broadly shows promise as a biofuel source (sea center texas 2019). in january 2019, the uae’s flagship airline, etihad airways, used salicornia-derived biojet fuel to successfully power a commercial flight on a boeing 787 from abu dhabi to amsterdam (etihad aviation group 2019). these experiences suggest that there may indeed be a range of non-food crops that could eventually be commercially grown in the permian basin with treated produced water as one of the core irrigation water sources. they also highlight a potential point of international engagement and a set of new development opportunities for farmers and water companies in the permian basin. logistics of moving water beyond the permian basin current state of the art for out-of-basin movement are the llano and rattlesnake pipeline systems operated by goodnight midstream (goodnight midstream 2019). yet with several hundred thousand bpd of capacity and movement beyond basin boundaries of perhaps 25 miles, these pipelines are smaller scale than what may ultimately be required to send water out of the basin, particularly if oil prices remain high enough that the tens of thousands of additional wells are developed. the next phase of beyond-basin water transportation could involve movements of 100 miles or more, with individual line capacities of 500 thousand barrels per dayor greater. as an example of what the capital investment and transportation economics for such a development could look like, consider the vista ridge pipeline.8 vista ridge is slated to enter service in 2020 and carry freshwater 142 miles from burleson county to the city of san antonio (san antonio water system 2019). the line will transport approximately 1 million bpd of water, making it broadly representative of the scale likely needed for many long-distance produced water transport projects to be economically viable (garney 2019b). the author acknowledges that vista ridge is a freshwater project and that transporting produced water is more challenging from a physical and chemical perspective and thus can cost significantly more than would be the case for freshwater projects. nonetheless, freshwater projects still provide useful illustrations of achievable physical scope and scale for future long-distance produced water movement projects. with respect to economic challenges, if future disposal constraints drove the costs of handling the marginal barrels of produced water near their source high enough, export projects would likely be able to overcome the higher cost burdens and still deliver economic returns. key challenges to building a permian basin oilfield hydrovascular grid challenge 1: capital providers’ return expectations diverge from underlying market realities the single toughest challenge for consolidating permian basin water systems will likely be the existing spreads between what many financial sponsors think their project is worth and what the market is likely to actually value the assets at. bid-ask differentials will be exacerbated by the fact that a large part of both the delaware and midland basins are now claimed under acreage dedications, many of which are now perfected to varying degree with actual built water infrastructure. in areas without duplicative development, the spread will likely be easier to manage. but in a situation such as that described earlier in this paper, with two adjacent systems each running at 40–50% of nameplate capacity and each developer having sunk large sums of capital into their respective projects, the exercise of trying to rationalize capacity in the face of sponsors who expect a two and a half times return on capital invested may prove impossible in the near-term, absent some type of 8 note that the vista ridge project transports water purchased under a long-term, price-stable agreement from a private developer for us in a public utility system. transactions conducted through an oilfield hydrovascular grid would be more analogous to spot and term-based merchant commodity transactions. furthermore, in an oilfield water context, the party purchasing or selling water is likely to move the molecules to market using its own infrastructure. texas water journal, volume 11, number 1 25the case for a ‘hydrovascular’ network in the permian basin financial distress situation that forces the parties to revise prior expectations (collins 2018c). challenge 2: incentivizing landowners to support a produced water market and freer movement of water across tract boundaries capital sponsors will not be the only vested interest that potentially has incentives to challenge consolidation. oilfield water rents have become a vital source of income to many permian basin landowners, particularly those in texas who control the surface rights (which groundwater runs with as a matter of law) but not the minerals. geographical distinctions matter greatly because unlike texas, where surface owners almost certainly legally own the produced water as a matter of law, new mexico now has specifically legislated that oil and gas operators own the produced water in that state and have the right to dispose, treat, sell, or transfer such water as they please.9 can texas landowners be incentivized to participate in a hydrovascular grid? there are strong strategic arguments for treating landowners as real stakeholders in water projects that may span multiple property boundaries. first, landowners will likely increasingly want to be paid in some way for any produced water that is clearly creating value for third parties that they are presently not sharing in. second, additional creative solutions are likely to find their way into water development agreements between landowners and midstream service providers. for instance, if produced water from multiple surface tracts is processed or disposed of at a central facility, landowners might seek a prorated distribution of a royalty, perhaps apportioned on the basis of surface acreage size or volumes derived from specific tracts (collins 2017b). indeed, the available texas case law strongly supports landowners’ ownership rights toproduced water, particularly if an operator seeks to use that water off-lease.10 the right to compensation will likely follow this affirmed ownership of private property. landowners are likely to take a strongly proprietary view of water as being theirs even if it is introduced into a pipeline system that may commingle water from hundreds of leases and many surface owners. complicating matters further, landowners with surface use agreements that require operators to prioritize the use of freshwater from the tract and dispose of pro9 chapter 70 nmsa 1978, section 4 (a)(1), the produced water act, which in relevant part states that “the working interest owners and operator shall have a possessory interest in the produced water, including the right to take possession of the produced water and to use, handle, dispose of, transfer, sell, convey, transport, recycle, reuse or treat the produced water and to obtain proceeds for any such uses.” 10 robinson v. robbins petroleum corp., 501 s.w.2d 865 (tex. 1973). duced water on-tract could conceivably believe that a broader hydrovascular grid threatens their income streams. the midland and delaware basins present different situations. midland basin landowners tend to hold smaller tracts, while the delaware basin is dominated by large landowners, who in some cases control more than 50,000 acres (larger than the city of midland’s area). smaller landowners could be offered a severance fee that makes the water property of the water infrastructure system operator, no further strings attached. those who were not willing to participate could be bypassed by infrastructure. larger landowners are more complicated because bypassing someone who controls 20 or more square miles may not be economically practicable. in cases where a system is connected to leases atop several surface tracts one possibility would be to introduce an inert tracer of some type into water leaving the tract boundaries at a specified concentration. at a monetization point downstream in the water system, the relative change in the concentration of the tracer could then be used to help determine what share of the revenue the landowner whose tract the water originally came from would be entitled to (figure 8). disparate tracts of land could also be unitized for produced water management purposes just as is currently done for oil and gas production. the devil will be in the economic details. it is very possible that some landowners may seek a severance fee so high it destroys the overall economics of a grid-style water project. in practice, landowners are likely to seek severance fees that reasonably approximate what they can currently get paid for water sent down disposal wells. but there is little guidance from publicly available data on potential severance fee rates, and royalty rates/fee structures negotiated in opaque private markets can vary widely. among other factors, the royalty rates historically paid by e&p operators and water midstream firms may be too high to allow the long-distance, cross-tract transfers that become possible with an interconnected hydrovascular grid. these rates arose in a period where the parties involved saw produced water as either a byproduct to be rid of as quickly as possible (e&ps in the pre-recycling era) or as a tolling market where the water should be moved the minimum necessary distance and then be disposed of (water midstreams). landowners talk to one another and anchor quickly on what are seen to be the prevailing market rates in a given area. thus, resetting produced water disposal rates is likely to be difficult unless injection disposal becomes regulatorily impossible or at least severely restricted in key parts of the permian basin. if such events transpire, the volume and price effects would ripple across the permian basin more broadly and could shift price setting power in water developers’ favor (in other words, “if i can’t dispose of the volumes i thought i could via the swd on your land, i’m no longer going to pay you $x per barrel. if you texas water journal, volume 11, number 1 oilfield water infrastructure connectivity:26 want the activity, the new price will have to be $0.8x or whatever is necessary to allow me, the developer, to unlock value.”). one of the few pieces of currently available produced water pricing data come from the agreement signed in january 2019 between university lands and ul water midstream, llc (composed of h2o midstream and layne water midstream). this agreement contains a royalty schedule for a range of water-related activities (figure 9). note that university lands is the largest single landowner in west texas, managing the surface and mineral interests of 2.1 million acres of land across 19 counties in west texas (university lands 2019). the university lands contract sheds some light on the rents sought by a party that is both an institutional landowner and also owns the mineral rights. however, a private, multigenerational ranch family (particularly one that does not control the mineral estate under their property) would likely find many of the royalty rates specified above to be unacceptably low. university land’s agreement also does not address the elephant in the room for a hydrovascular grid—what, if any, rent is to be paid for moving water into a pipeline system that would take it off-tract? if ul water midstream wants to move produced water into other water systems, it must execute an amendment “containing mutually agreeable terms for the allocation of revenue” associated with such a water movement (preferred water service provider agreement 2019). but no actual rates are set forth. challenge 3: building the permian basin-produced water marketplace if the number of discrete oilfield water networks in the permian basin continues to consolidate and become more tightly interlinked, the corresponding number of parties who could transact with each other also decreases. consequently, the emerging market will likely be a more condensed version of what currently exists—a “speed dial marketplace” where most participants either already actually know each other, or if not, are an introduction and a phone call away. the key market creation challenges will thus not be the need to bring buyers and sellers together in an “ebay” sense. rather, the five key challenges will be: (1) building supersized oilfield water infrastructure and (2) financing water infrastructure at larger scale, and for projects that are more predicated upon sharing than is presently the case, (3) ensuring a baseline set of water quality standards, (4) pricing water transferred between systems whose underlying capital and operating cost structures could be substantially different, and (5) managing legal liabilities associated with transferring water that may be extremely saline and contain leftover completion chemicals and other contaminants. physical construction challenges are likely to be highly surmountable. in 2012 and 2013, a consortium of water infrafigure 8. incentivizing texas landowners to buy in to a broader, more interconnected hydrovascular grid. texas water journal, volume 11, number 1 27the case for a ‘hydrovascular’ network in the permian basin structure-focused firms needed only 10 months to build a 60-mile, 48-inch diameter freshwater pipeline linking the t-bar ranch in winkler county to the city of midland, as well as emplace all of the necessary supporting infrastructure (garney 2019a). multiple of these same firms are currently working on the vista ridge project in central texas, which upon entering service in 2020 will be capable of moving 1 million bpd of water into the san antonio area. financing water infrastructure at a larger scale will require baseline cashflow assurances. in essence, can lenders be confident that the project will be able to service its debts? one wrinkle is that for out-of-basin projects done in conjunction with municipalities, project developers may be able to avail themselves of the municipal entities’ credit ratings (if strong) and secure more advantageously priced financing as a result. capital providers are interested in the space—witness waterbridge’s $1 billion term loan b announced in june 2019 (waterbridge 2019). however, the transaction also suggests that lenders are attaching a meaningful risk premium. the waterbridge term loan b priced at libor + 575 basis points, a total interest rate of nearly 8% (waterbridge 2019). debt issuances provide valuable insights into how the market currently perceives the risk profile of a water midstream firm. waterbridge, one of the permian basin’s water midstream titans, currently receives a long-term issue credit rating of b from s&p global (figure 10) (ac investment 2019). s&p explains a b rating as meaning the “obligor currently has the capacity to meet its financial commitments on the obligation. adverse business, financial, or economic conditions will likely impair the obligor’s capacity or willingness to meet its financial commitments on the obligation” (s&p global 2019). in other words, the firm’s financial condition is likely to remain in good shape in a stable macro environment, but if oil and gas prices decline and/or the company cannot secure stable long-term contracts to assure cashflows, such events can quickly threaten its financial health. the significant ratings disparity—and implications for cost of capital—between a large oilfield water firm like waterbridge and a local municipality (such as the city of midland) also help illustrate the attractiveness of public-private partnerships from the perspective of the lower-rated party who may need help financing infrastructure and other items. water quality issues will also likely pose challenges as produced water from different formations is commingled in water systems gathering from potentially hundreds of discrete leases. however, these operational and engineering challenges are likely to be overcome as the economic incentives for water infrastructure connectivity continue to grow. multiple examples of “raw” produced water being sold out of gathering lines as frac fluid feedstock, as well as the recent concho-solaris recycled water supply deal, make the author optimistic that market participants are already well on their way to hammering out the figure 9. university lands comprehensive water royalty schedule. source: preferred water service provider agreement 2019. texas water journal, volume 11, number 1 oilfield water infrastructure connectivity:28 water quality issues likely to be faced by more systematically connected water systems.11 how to price water as it moves across systems will be a substantial but surmountable challenge. crude oil pipeline systems already provide an excellent working example of how to differentially assess commodity movement charges over varying distances and producer commitment levels in a networked infrastructure ecosystem (figure 11). perhaps the most challenging part of the market design puzzle will be figuring out pricing and rent sharing across systems so that infrastructure owners and the original water owners (i.e. surface owners) can be sufficiently compensated to incentivize cross-system water movements. continued low oil prices will sharpen the discussion because the final economic structure 11 see, for instance cimarex’s use of “raw” untreated produced water from its swd system as feedstock for frac fluid and also concho resources inc. and solaris water midstream form joint venture for produced water management in the northern delaware basin. 2019 jul 31.solaris water midstream. available from: https://www.solarismidstream.com/news/concho-resources-inc-and-solaris-water-midstream-form-joint-venture-produced-water-management (solaris will provide concho with “blended reuse source water” derived from multiple operators on solaris’s gathering and disposal network). also needs to avoid overly burdening oil and gas producers with water-related operating costs. ideally, the structures developed will ultimately help e&p companies lock in lower water services costs that can endure through multiple commodity price cycles and help ensure that the permian basin remains globally competitive and can fulfill its formidable long-term productive potential. a final portion of the market puzzle is how legal liability will be treated. new mexico law appears to provide a clear and comprehensive set of incentives for the aggregation, treatment, and movement back to market of produced water, even across tract boundaries. the produced water act (house bill 546) passed in the 2019 new mexico legislative session clarifies e&p operators’ de facto ownership of the water, gives them and subsequent transferors the ability to transfer produced water with clean title, prohibits private parties from charging transit fees to entities moving water across surface lands owned by the state of new mexico, and makes agreements that mandate use of on-tract freshwater or that otherwise would restrict the use of recycled produced water void as against public policy.12 12 “fluid oil & gas waste act,” h.b. 546, https://nmlegis.gov/legislation/legislation?chamber=h&legtype=b&legno=546&year=19. figure 10. s&p global long-term issuer credit ratings, waterbridge vs. other selected corporates and an oilfield municipality. source: s&p global 2019, city of midland 2019. https://nmlegis.gov/legislation/legislation?chamber=h&legtype=b&legno=546&year=19 https://nmlegis.gov/legislation/legislation?chamber=h&legtype=b&legno=546&year=19 texas water journal, volume 11, number 1 29the case for a ‘hydrovascular’ network in the permian basin texas’s limited body of law on produced water has evolved very differently due to the predominantly private ownership of surface lands in the state, as well as the fact that surface owners in texas own all groundwater as a matter of law, including produced water (collins 2017a). the author is currently working on a follow-on deep dive analysis of produced water ownership law in texas, how it has developed, and how private property owners are likely to respond to recent legislation that allows e&p operators to attain ownership of produced water by capturing and recycling it. as such, the author will reserve further comment on texas-specific produced water legal issues until the publication of that analysis, noting only that the legal basis exists for building a permian basin-scale hydrovascular system, and that any future legislation is unlikely to derail this emerging trend. conclusions the emergence of a broader permian basin oilfield water hydrovascular grid faces several significant challenges. nonetheless, the burgeoning volumes of produced water in the permian basin, pressure to optimize capex in the face of commodity price uncertainty, e&ps’ need to manage water-related costs, and the ever-present prospect of drought are among the powerful incentives that will likely drive sector participants to develop creative solutions. oilfield activity evolves fast, and the services business supporting it—water management first and foremost—evolve with equal velocity. some of the solutions posited in this paper will come to pass, some will not, and many others we have not even thought of yet will be developed as entrepreneurs flock to the permian basin’s uniquely large oilfield water marketplace. as consolidation ripples through the oilfield water space, a fascinating ecosystem of mutually reinforcing academic, policy, investor, and producer interests will continue evolving and spinning off opportunities. figure 11. commodity logistics pricing at basin-wide level (case of crude oil). source: federal energy regulatory commission 2019, author’s analysis. texas water journal, volume 11, number 1 oilfield water infrastructure connectivity:30 references ac investment. 2019. waterbridge midstream operating llc assigned 'b' issuer credit rating and stable outlook; debt also rated. available from: https://www.ademcetinkaya. com/2019/05/waterbridge-midstream-operating-llc.html. addison b. 2019 oct 25. water production to increase to 35 million barrels per day. midland reporter-telegram. available from: https://www.mrt.com/business/oil/article/ water-production-to-increase-to-35-million-14563541. php. brown cb, riggans b (city of houston office of the city controller). 2018. houston comprehensive annual financial report 2018. p. 240. available from: https://www. houstontx.gov/controller/cafr.html. city of midland, texas. 2019. comprehensive annual financial report (fy 2018). available from: http://midlandtexas.gov/archive.aspx?amid=54. collins g. 2017a. oilfield produced water ownership in texas: balancing surface owners’ rights and mineral owners’ commercial objectives. baker institute for public policy. available from: https://www.bakerinstitute.org/media/ files/files/23bd889f/ces-pub-prodwatertx-020817.pdf. collins g. 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2018b collins 2018a collins 2018d lewis 2015 sedlacko et al. 2019 miller et al. 2019 icba 2018 sea center texas 2019 etihad aviation group 2019 goodnight midstream 2019 san antonio water system 2019 garney 2019b collins 2018c collins 2017b university lands 2019 preferred water service provider agreement 2019 garney 2019a waterbridge 2019 ac investment 2019 s&p global 2019 collins 2017a san antonio's edwards aquifer protection program: review and analysis texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute volume 9, number 1 2018 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. cover photo: sunrise over coastal bend bays & esturaries program land. © 2017 john reuthinger. see winning photos at wildlifeinfocus.org http://texaswaterjournal.org http://wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, march 13, 2018 pages 1-15 abstract: the city of san antonio’s edwards aquifer protection program utilizes land and conservation easement acquisitions to protect the quality and quantity of edwards aquifer recharge. this review considers four key components of its viability: (1) establishing the need for action, (2) choosing an appropriate strategy and funding source, (3) defining purchase guidelines, and (4) demonstrating the program’s impact. overall, the analysis concludes that the program has been well adapted to the city’s need to protect the recharge and contributing zones beyond its regulatory jurisdiction. as such, it may serve as a significant model for other cities, particularly in texas, where regulations may face legal and cultural resistance. the city has effectively educated the public on the value of this sales tax funded measure, even though some justification of its premises, such as inevitable development in western counties, remains subjective. a strong foundation is also evident, with a consistent focus on acquiring land that fits the original, narrow intent of the effort. an impediment to its continuation, however, may be the difficulty of presenting clear evidence of its success, a challenge for all policies designed to avert future harms to natural resources. keywords: edwards aquifer; edwards aquifer protection program; land acquisition; san antonio 1associate dean, college of public policy; associate professor, department of public administration, university of texas at san antonio *corresponding author: francine.romero@utsa.edu texas water journal, volume 9, number 1 san antonio’s edwards aquifer protection program: review and analysis francine sanders romero1,* citation: romero fs. san antonio's edwards aquifer protection program: review and analysis. texas water journal. 9(1):1-15. available from: https://doi.org/10.21423/twj.v9i1.7063. © 2018 francine sanders romero. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto: francine.romero@utsa.edu https://doi.org/10.21423/twj.v9i1.7063 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 9, number 1 san antonio’s edwards aquifer protection program2 terms used in paper short name or acronym descriptive name apo aquifer protection ordinance cab conservation advisory board city city of san antonio eaa edwards aquifer authority eapp edwards aquifer protection program epa environmental protection agency etj extraterritorial jurisdiction lap land acquisition program saws san antonio water system tceq texas commission on environmental quality tlgc texas local government code wqlap water quality land acquisition program introduction efforts to ensure sustainable management of the edwards aquifer attract interest from scholars and practitioners, who typically emphasize the regulation of water withdrawals.1 researchers have paid less attention to complementary strategies that protect supply rather than rationing demand, particularly by preserving the land where recharge occurs. this omission is likely because such efforts, at least on a large scale, have been relatively scarce. however, a land-based approach to water protection can play a key role in groundwater management, and a recent report from the texas farm and ranch lands program called it, “a low-cost, effective strategy for protecting texas’ water resources.”2 this review provides a summary and analysis of one significant effort in this regard, the city of san antonio’s edwards aquifer protection program (eapp). 1see robert l. gulley and jenna b. cantwell, the edwards aquifer water wars: the final chapter?, 4 texas water journal (2013), available at https:// journals.tdl.org/twj/index.php/twj/article/view/6423. todd h. votteler, raiders of the lost aquifer? or, the beginning of the end to fifty years of conflict over the texas edwards aquifer, 15 tulane environmental law review, 258335 (2002; 2004, revised). todd h. votteler, the little fish that roared: the endangered species act, state groundwater law, and private property rights collide over the texas edwards aquifer, 28 environmental law 845-879, (1998). 2texas a&m irnr, texas farm and ranch lands conservation program evaluation report (2016), available at http://www.txaglandtrust.org/pdfs/ tfrlcp%20eval%20report%2020161219_final.pdf. in place since 2000, $225 million has been spent through this program to preserve 146,075 acres in the edwards aquifer recharge and contributing zones.3 eapp employs a simple and indirect mechanism for water management—acquire land and/or conservation easements to protect the recharge potential of the edwards aquifer, thereby securing this critical regional water supply. identifying key elements of its success and considering those elements within the context of existing literature on natural resource protection can advance understanding of this approach to protecting groundwater. below, following a brief background section, this paper examines four components of the history and evolution of eapp: (1) establishing the need for action, (2) choosing an appropriate strategy and funding source, (3) defining purchase guidelines, and (4) demonstrating impact. san antonio and the edwards aquifer the origins and growth of the city of san antonio (city) are closely linked to its ready access to the san antonio segment of 3these figures represent a summary of expenditures and purchases after full spendout of the 2010 funds, and with the 2015 funds still to be accessed. see francine s. romero, aquifer protection visionary (2017), san antonio express-news (march 28, 2017), available at http://www.mysanantonio. com/opinion/commentary/article/a-milestone-in-edwards-recharge-protection-11034278.php. https://journals.tdl.org/twj/index.php/twj/article/view/6423 https://journals.tdl.org/twj/index.php/twj/article/view/6423 http://www.txaglandtrust.org/pdfs/tfrlcp%20eval%20report%2020161219_final.pdf http://www.txaglandtrust.org/pdfs/tfrlcp%20eval%20report%2020161219_final.pdf http://www.mysanantonio.com/opinion/commentary/article/a-milestone-in-edwards-recharge-protection-11034278.php http://www.mysanantonio.com/opinion/commentary/article/a-milestone-in-edwards-recharge-protection-11034278.php http://www.mysanantonio.com/opinion/commentary/article/a-milestone-in-edwards-recharge-protection-11034278.php texas water journal, volume 9, number 1 3san antonio’s edwards aquifer protection program the balcones fault zone edwards aquifer, but rapid growth in the region threatens the quality and quantity of that groundwater.4 as figure 1 illustrates, the process by which supply reaches the city begins when “surface water from springs and streams originating on the drainage area [also called the contributing or catchment zone] reaches the recharge zone where much of the flow sinks into the edwards limestone,” and then “flows down gradient to the artesian zone.”5 from there, it either naturally flows or is pumped to the surface. while variable, movement of groundwater through the aquifer is generally west to east. the recharge zone for san antonio’s artesian zone occurs in bexar, comal, hays, kinney, medina, and uvalde counties, with medina and uvalde counties effectively composing 70% of that zone.6 the drainage, or contributing zone, includes several counties, as illustrated in figure 1. 4sarah goodyear, hot, crowded and smart, next city (july 22, 2013), available at https://nextcity.org/features/view/hot-crowded-and-smart-sanantonio-water-system-drought; joe nick patoski, edwards aquifer authority has come a long way, san antonio express-news (september 25, 2016), available at http://www.mysanantonio.com/opinion/commentary/article/ edwards-aquifer-authority-has-come-a-long-way-9242337.php. 5edwards aquifer authority, about the edwards aquifer, available at http://www.edwardsaquifer.org/scientific-research-and-data/edwards-aquifer-overview. 6leslie lee, protect our land, protect our water, txh2o, texas water resources institute (2014) 2, available at http://twri.tamu.edu/publications/ txh2o/summer-2014/protect-our-land-protect-our-water/. u.s. dep’t of several governmental entities have regulatory authority over the edwards aquifer. some of their associated rules focus directly on water withdrawals, while others target pollutants and impervious cover that could threaten recharge quality and quantity. created by the texas legislature in 1993 in response to a u.s. district court ruling, the edwards aquifer authority (eaa) is a political subdivision of the state, whose mission is to “manage, enhance and protect the edwards aquifer.”7 as an eaa-authorized permit holder, the san antonio water system (saws) passes along its own eaa-mandated restrictions to its customers through limits on landscape watering and water waste runoff.8 at the federal level, the environmental protection agency (epa) classified the edwards as a sole source aquifer in 1975, a label that indicates it provides at least 50% of supply for its service area.9 per the safe drinking water act of 1974, this classification triggers review of federally funded development the interior, u.s. geological survey, recharge to and discharge from the edwards aquifer in the san antonio area, texas, 1997 2 (1998). 7see http://www.edwardsaquifer.org/. for a map of the eaa’s jurisdictional boundaries, mostly in the recharge and artesian zones, see http:// www.arcgis.com/home/webmap/viewer.html?webmap=aed0e4eddc794ec49d740a267d42560a&extent=-101.1491,28.3085,-96.6364,30.6845. 8see http://www.saws.org/conservation/droughtrestrictions/yearround.cfm. 9see https://www.epa.gov/dwssa/overview-drinking-water-sole-source-aquifer-program#what_is_ssa. figure 1: hydrogeology of the edwards aquifer figure 1. hydrogeology of the edwards aquifer. source: eckhardt, supra note 21. https://nextcity.org/features/view/hot-crowded-and-smart-san-antonio-water-system-drought https://nextcity.org/features/view/hot-crowded-and-smart-san-antonio-water-system-drought http://www.mysanantonio.com/opinion/commentary/article/edwards-aquifer-authority-has-come-a-long-way-9242337.php http://www.mysanantonio.com/opinion/commentary/article/edwards-aquifer-authority-has-come-a-long-way-9242337.php http://www.edwardsaquifer.org/scientific-research-and-data/edwards-aquifer-overview http://www.edwardsaquifer.org/scientific-research-and-data/edwards-aquifer-overview http://twri.tamu.edu/publications/txh2o/summer-2014/protect-our-land-protect-our-water/ http://twri.tamu.edu/publications/txh2o/summer-2014/protect-our-land-protect-our-water/ http://www.edwardsaquifer.org/ http://www.arcgis.com/home/webmap/viewer.html?webmap=aed0e4eddc794ec49d740a267d42560a&extent=-101.1491,28.3085,-96.6364,30.6845 http://www.arcgis.com/home/webmap/viewer.html?webmap=aed0e4eddc794ec49d740a267d42560a&extent=-101.1491,28.3085,-96.6364,30.6845 http://www.arcgis.com/home/webmap/viewer.html?webmap=aed0e4eddc794ec49d740a267d42560a&extent=-101.1491,28.3085,-96.6364,30.6845 http://www.saws.org/conservation/droughtrestrictions/yearround.cfm https://www.epa.gov/dwssa/overview-drinking-water-sole-source-aquifer-program#what_is_ssa https://www.epa.gov/dwssa/overview-drinking-water-sole-source-aquifer-program#what_is_ssa texas water journal, volume 9, number 1 san antonio’s edwards aquifer protection program4 establishing the need for action a key initial step in adopting any natural resource protection policy, especially one that requires voter endorsement, is for proponents to establish and promote a reliable narrative of its necessity. in an early piece on the topic of open space protection through voter-approved funding, danziger pointed out the importance of communicating this “urgency of need” to citizens.15 furthermore, the information presented must be clear and accurate. as steelman and asher caution, when advocates approach voters with “a calculated degree of manipulation,” the policy becomes suspect and any initial support will soon dissipate.16 in the case of the eapp, the first component of the narrative is simply the mechanics of the edwards aquifer flow to the san antonio pool. second is the threat to quality and quantity of aquifer recharge posed by increased development/impervious cover in those zones. third is the likelihood of substantial population growth in these key western counties. for the eapp to gain initial acceptance and continued support, the city’s leaders and other advocates had to communicate each of these effectively to citizens. the first component, premised on well-established hydrogeology of the aquifer, requires only elementary presentation through explanation or maps for any residents not already aware of this dynamic. proponents appear to have easily gained widespread public acceptance of these facts. as the nature conservancy texas state director laura huffman noted, central texas is “one of the few places in the country where you can say the word aquifer and people know what you’re talking about.”17 beginning in 2000 and continuing through subsequent ballot measures, the city has promoted this message to voters. for example, its “guide to 2015 sales tax propositions” brochure includes maps, explanations, and “fun facts” on edwards hydrogeology.18 elected officials, from mayor howard peak in 2000 to councilman ron nirenberg in 2015, 1. in 2015, $10 million was set aside for grants for innovative, demonstration projects for recharge enhancement in bexar county, available at http:// saprop1edwardsprojects.org/. the eapp and the linear creekways program share the 1/8 cent allotment, to reach their full funding amount, see http:// www.sanantonio.gov/finance/bfi/tax-rate-summary. 15burton danziger, control of urban sprawl or securing open space: regulation by condemnation or ordinance? 50 california law review 493 (1962). 16toddi a. steelman and william ascher, public involvement methods in natural resource policy making, 30 policy sciences 71-90 (1997). 17amy crawford, liquid assets, nature conservancy magazine (2017) at 54. 18see https://www.sanantonio.gov/portals/0/files/aquiferpark/edwardsinitiative_booklet-english.pdf. projects overlaying the recharge zone in order to limit contamination potential.10 the texas commission on environmental quality (tceq) implements similar, but separate, state rules on all projects over the edwards aquifer recharge zone.11 locally, the city enforces its own aquifer protection ordinance (apo) that governs levels of impervious cover for new construction in the recharge zone. as the apo is similar to the eapp, in that it focuses on limiting development per se, albeit by regulation, it is explained in further detail below. with one exception, prior to the eapp there had been no policy in place in this region to protect land from development through acquisition. that exception was the saws sensitive land acquisition program (lap), launched in 1997.12 the lap used a water supply fee to purchase land or easements in the recharge zone, in partnership with several land trusts. more than 9,000 acres were protected, with the last documented purchase in 2007.13 the eapp began in 2000 when city voters approved a 1/8 cent (.125 %) sales tax increase to raise $45 million for purchase and preservation of land in the edwards aquifer recharge and contributing zones. while the eapp would later expand its geographic range, the immediate impetus was the rapid development of recharge zone acreage in bexar county. since then, the eapp has been reauthorized and expanded in both scope and funding, with a new round of $90 million approved in 2005, $90 million in 2010, and $100 million in 2015, with expenditures ongoing from the 2015 fund.14 10congressman henry b. gonzalez, representing texas’s 20th congressional district, added the sole source aquifer amendment to the federal safe drinking water act. while the legislation never had a notable impact on limiting development over the edwards aquifer recharge zone, it helped spark a local conversation on the topic. see laura a. wimberley, establishing “sole source” protection, in char miller, editor, on the border: an environmental history of san antonio, pittsburgh university press (2001) 169-181. in 1976, gonzalez also introduced a failed bill “to appropriate $76 million to purchase the bexar county portion of the recharge zone.” see lanny sinkin, private profit over public good led to failure to protect aquifer recharge zone, the rivard report (june 8, 2012), available at https://therivardreport.com/private-profit-over-public-good-led-to-failure-to-protect-aquifer-recharge-zone/. 11in a confusing duplication of terms, the tceq program regulating potential pollutants reaching the aquifer has the same name, edwards aquifer protection program, as the city’s acquisition endeavor. see texas commission on environmental quality, edwards aquifer protection program, available at https://www.tceq.texas.gov/permitting/eapp/program.html. 12san antonio water system, water resource protection and compliance, available a: http://www.saws.org/environment/resourceprotcomp/aquifer_ protection/acquisition.cfm. 13san antonio water system, saws board approves conservation easement purchase in uvalde county, july 12, 2007, available at http://www.saws.org/ latest_news/newsdrill.cfm?news_id=451. 14san antonio city council first voted to place these measures on the ballot, after which they were approved by voters in a general election, in may (2000, 2005, 2015) or november (2010). the 2000 ballot measure was designated as proposition 3 and all subsequent measures as proposition http://saprop1edwardsprojects.org/ http://saprop1edwardsprojects.org/ http://www.sanantonio.gov/finance/bfi/tax-rate-summary http://www.sanantonio.gov/finance/bfi/tax-rate-summary https://www.sanantonio.gov/portals/0/files/aquiferpark/edwardsinitiative_booklet-english.pdf https://www.sanantonio.gov/portals/0/files/aquiferpark/edwardsinitiative_booklet-english.pdf https://therivardreport.com/private-profit-over-public-good-led-to-failure-to-protect-aquifer-recharge-zone/ https://therivardreport.com/private-profit-over-public-good-led-to-failure-to-protect-aquifer-recharge-zone/ https://www.tceq.texas.gov/permitting/eapp/program.html http://www.saws.org/environment/resourceprotcomp/aquifer_protection/acquisition.cfm http://www.saws.org/environment/resourceprotcomp/aquifer_protection/acquisition.cfm http://www.saws.org/latest_news/newsdrill.cfm?news_id=451 http://www.saws.org/latest_news/newsdrill.cfm?news_id=451 texas water journal, volume 9, number 1 5san antonio’s edwards aquifer protection program have also stressed the eapp’s significance through speeches and newspaper editorials.19 while basic aquifer dynamics found ready public acceptance, the next two components of the narrative were more ambiguous, beginning with the link between physical development and the recharge process. as crawford emphasized, it makes fiscal sense for cities to invest in upstream watershed protections in the form of some limit to construction and impervious cover. this may prevent expensive treatment fixes or potential supply shortages.20 nevertheless, in the absence of a looming crisis, the public may not embrace this strategy. furthermore, while the scientific community generally accepts the negative impact of development on recharge quality and quantity, there is no agreed upon trigger level at which impervious cover causes significant harm.21 this can make it difficult to justify spending public money to preclude any, or virtually any, development. san antonio did not face an urgent catalyst for action in this regard as, for example, new york city did in the 1990s. although new york city does not rely on an aquifer, its water supply originates in massive watersheds outside city limits, similar to the san antonio context. the federal safe drinking water act updates of 1986 required all municipal water originating from surface sources to be filtered, which for new york city would have required construction of expensive filtration systems (estimated at between $10 and $20 billion) for its catskill/delaware and croton watersheds. in order to avoid this burden, new york city instead received permission to initiate its lap in 1997. like the eapp, new york’s lap is based on acquiring land and conservation easements to prevent development-linked pollutants reaching the municipal water supply.22 while san antonio’s main water supplier, saws, also functions without filtration for edwards water, there have been 19see linda prendez, mayor sways officials, san antonio express-news (april 26, 2000), at 1h; ron nirenberg, aquifer protection needs to be renewed, san antonio express-news (may 17, 2014), at a15. 20crawford supra note 17, at 48. 21chester l. arnold and c. james gibbons, impervious surface coverage: the emergence of a key environmental indicator, 62 american planning association journal (1996) 246, report that degradation of streams first appears with 10% impervious cover, and at 30% is “so severe as to become almost unavoidable.” however, for the range in between those two endpoints, the point at which regulation is necessitated remains subjective. furthermore, the development community may resist any limits. also see david todd and jonathan ogren, the texas landscape project, texas a & m university press (2016) 219; gregg eckhardt, the edwards aquifer website, http://www. edwardsaquifer.net/faqs.html. 22see david soll, empire of water, cornell university press (2013). adam wisnieski, city’s watershed protection plan seeks difficult balance upstate, city limits (june 15, 2015) 3 (online), available at http://citylimits. org/2015/06/15/citys-watershed-protection-plan-seeks-difficult-balance-upstate/. no major alarms triggered by contamination and/or possible federal filtration requirements, although some observers have warned of this risk.23 drought periods, with the most recent in 2011, underscore the impact of significant impervious cover on recharge quantity, but public attention may wane when the drought ends. for city dwellers, the immediate impact of drought is more likely to be the landscape watering limits imposed by saws than fears of actually running out of water. as lindgren, et al. reported, “(a)lthough recurring droughts and floods have caused appreciable short-term fluctuations in water levels, long-term hydrographs (about 80 years) indicate no net decline (or rise) of water levels in the san antonio area.”24 finally, the third component of this narrative is that eapp acquisitions would serve as an essential, proactive bar to the impact of imminent growth in medina and uvalde counties in particular. since this premise is grounded partly on demographic projections, it has faced some resistance. in 2005, a san antonio express-news columnist suggested as much, opining that the eapp, “is dedicated to sucking $90 million from the wallets of consumers and using it to enrich back country land speculators,” implying these lands were becoming valuable solely because of the eapp’s interest, and that pending growth in the area was a myth.25 and, in 2017, councilman joe krier stated that his “constituents question the logic behind san antonio protecting land outside of the city and county limits,” because they are “skeptical that the land would ever be developed anyway.”26 there is, however, considerable media coverage of new residents moving to texas, with san antonio projected to gain 28% more residents by 2030.27 the texas demographic center estimates population increases of 53% in medina county and 35% in uvalde county by 2050.28 more immediate than these projections, residents can readily observe intensive 23robert rivard, the edwards aquifer comes under increasing threats, the rivard report (june 8, 2012). 24r.j. lindgren, a.r. dutton, s.d. hovorka, s.r.h. worthington, and scott painter, conceptualization and simulation of the edwards aquifer, san antonio region, texas, scientific investigations report 2004–5277, u.s. department of the interior, u.s. geological survey, available at https://pubs. usgs.gov/sir/2004/5277/pdf/sir2004-5277.pdf, 41-42. 25roddy l. stinson, don’t look now, but you are standing next to a bottomle$$ pit, san antonio express-news, (april 19, 2005) 3a. 26iris dimmick, council votes to protect 2,830 more acres over edwards aquifer, rivard report (march 30, 2017), available at https://therivardreport.com/council-votes-to-protect-2830-more-acres-over-edwards-aquifer/. 27robert rivard, check out san antonio (and all u.s. cities) in 2030, rivard report (january 22, 2015), available at https://therivardreport.com/ check-san-antonio-u-s-cities-2030/. 28texas demographic center, 2014 population projections data, available at http://osd.texas.gov/data/tpepp/projections/. http://www.edwardsaquifer.net/faqs.html http://www.edwardsaquifer.net/faqs.html http://citylimits.org/2015/06/15/citys-watershed-protection-plan-seeks-difficult-balance-upstate/ http://citylimits.org/2015/06/15/citys-watershed-protection-plan-seeks-difficult-balance-upstate/ http://citylimits.org/2015/06/15/citys-watershed-protection-plan-seeks-difficult-balance-upstate/ https://pubs.usgs.gov/sir/2004/5277/pdf/sir2004-5277.pdf https://pubs.usgs.gov/sir/2004/5277/pdf/sir2004-5277.pdf https://therivardreport.com/council-votes-to-protect-2830-more-acres-over-edwards-aquifer/ https://therivardreport.com/council-votes-to-protect-2830-more-acres-over-edwards-aquifer/ https://therivardreport.com/check-san-antonio-u-s-cities-2030/ https://therivardreport.com/check-san-antonio-u-s-cities-2030/ http://osd.texas.gov/data/tpepp/projections/ texas water journal, volume 9, number 1 san antonio’s edwards aquifer protection program6 growth already occurring in eastern medina county in particular as san antonio sprawls in a westward direction. while much of this growth may be at a less intense level than occurs within the city, even the spread of single-family homes on smaller ranchettes can exert significant impact on recharge by fragmenting and contaminating natural flow. overall, the foundational narrative establishing a need for the eapp was strong, with some aspects of the argument more objective than other aspects. most citizens and public officials either already understand, or can be easily educated on, edwards aquifer hydrology. on the other hand, the impact of development on recharge functions cannot be precisely demonstrated, and future growth in the western counties is not guaranteed, despite current trends. still, voters may pay less attention to the details of future growth and simply decide it makes sense to ensure preservation sooner rather than later. ultimately, the final vote counts indicate strong public agreement with the need for the eapp. support started out high and increased over time, with approval moving from 55% in both 2000 and 2005 to 66% in 2010 and 78% in 2015.29 a poll conducted by the nature conservancy early in 2015 revealed the strength of support for that round, indicating that 54% of voters were “definitely in favor,” and 24% “probably in favor,” even months before the vote. 30 choosing an appropriate strategy and funding source regulatory challenges given this substantial public backing for a land-based approach, the crucial next step was to identify a strategy that best fit the goal. preservation of any natural resource may occur via regulation, acquisition, or incentive-based tools, or some combination of those. generic regulatory approaches, where a particular practice is required or banned, are common. regulation is relatively inexpensive compared to both public acquisition and to policies that financially incentivize sustainable management of private land. because regulation only requires the price of enforcement, it can more efficiently protect resources. yet, a regulatory strategy may fall short of effectiveness. since some natural resources, such as aquifers, transcend political boundaries, there is likely no single entity (e.g., city or county) possessing jurisdiction for full control. furthermore, 29see bexar county elections department, election results (2000, 2005, 2010, 2015), https://www.bexar.org/2186/election-results. 30the nature conservancy, san antonio voter support for protecting water supply in the edwards aquifer and linear parks (2015), available at https://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/ texas/multimedia/san-antonio-voter-poll.pdf. inter-jurisdictional collaboration or coordination is difficult and uncommon. as lubell, et al. observed, “since common interests do not necessarily lead to common action, partnerships will not emerge automatically in response to potential benefits.”31 others (bengston, et al. 2003; steelman 2000) found these limitations constrain open space protection in particular.32 as noted above, various entities enforce numerous policies directly focused on edwards aquifer water, such as the withdrawal rules enforced by eaa and the pollutant controls overseen by tceq. other researchers have focused on the impact and challenges of those. here, however, i focus on the topic at hand—a strategy of protecting water supply indirectly, by limiting development of the land overlaying the recharge and contributing zones. in san antonio’s case, only one regulation targeting land development to protect groundwater has been successfully enacted.33 the 1995 apo controls impervious cover over the recharge zone, setting maximum levels by category/location of development. 34 however, several factors dilute this policy. first, illustrating the common mismatch of political and natural resource boundaries, it only applies within the relatively small area of the recharge zone that falls within the city limits or its extraterritorial jurisdiction (etj).35 (since the majority of recharge to the san antonio pool occurs in unincorporated areas of counties that lack zoning and most subdivision regulatory authority, county officials have virtually no power to limit development, even if inclined to do so.) second, even within its jurisdiction, the apo was constrained by state protection of vested rights in the development process, 31 mark lubell, mark schneider, john t. scholz and mihriye mete, watershed partnerships and the emergence of collective action institutions, 46 american journal of political science 148-163 (2002), at 159. 32 david n. bengston, jennifer fletcher, kristen c. nelson, public policies for managing urban growth, 69 landscape and urban planning 271-286 (2003). toddi a. steelman, innovation in land use governance and protection, 44 american behavioral scientist 579-597 (2000). see craig r. smith, institutional determinants of collaboration: an empirical study of county open-space protections, 7 journal of public administration research and theory 1-21 (2009), on the challenge of providing goods across generations. 33 courts struck down several prior efforts. in 1976, for example, a city referendum invalidated the requisite zoning granted to developers of a shopping mall over the recharge zone at the highway 281/1604 intersection, but the fourth court of texas appeals reversed that vote two years later. in 1978, san antonio city council approved an 18-month moratorium on all recharge zone construction, to allow for studies of its impact, but the ban was blocked by both federal and state courts. see eckhardt, supra note 21. 34see http://www.saws.org/environment/resourceprotcomp/aquifer_protection/ordinance.cfm. the apo is enforced by saws. 35texas state law grants large cities such as san antonio a five-mile etj beyond city limits where certain municipal development regulations apply. see http://www.statutes.legis.state.tx.us/docs/lg/htm/lg.42.htm. https://www.bexar.org/2186/election-results. https://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/texas/multimedia/san-antonio-voter-poll.pdf https://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/texas/multimedia/san-antonio-voter-poll.pdf http://www.saws.org/environment/resourceprotcomp/aquifer_protection/ordinance.cfm http://www.saws.org/environment/resourceprotcomp/aquifer_protection/ordinance.cfm http://www.statutes.legis.state.tx.us/docs/lg/htm/lg.42.html. texas water journal, volume 9, number 1 7san antonio’s edwards aquifer protection program per section 245 of the texas local government code (tlgc).36 donohue and sanders reported that 30% of recharge zone properties filed plans for development in advance of the apo’s passage, a strategy that released them from subsequent limits.37 finally, impervious cover is permitted at levels higher than scientists recommend, even given the disagreements on the precise point at which impervious cover threatens recharge quality and quantity. for example, within city limits, commercial developments (without vesting) may include up to 65% impervious cover over the recharge zone. another factor undermines the likelihood of vigorous enforcement of this and other potential regulatory efforts. although the vested rights doctrine has likely meant the avoidance of potential lawsuits, future legal challenges could determine that regulation of land to protect water supply is too far removed from a legitimate use of the police power. in the case of regulation, costs are borne primarily by the landowner, whose options for sale and development are now limited. therefore, it is at least arguable that land-based controls provide a public benefit that can be legally obtained only through the exercise of eminent domain and compensation to the owner.38 as eckhardt observed, “texas is a state that is very respectful of private property rights, and many will simply not accept the notion that land use and development should be regulated.”39 the acquisition option daniel press, an advocate of the superiority of acquisition strategies for land protection (for whatever underlying purpose), is skeptical of regulatory approaches. even at their strongest, he argued, they slow, rather than stop, development.40 in san antonio, the apo’s limitations demonstrate that point. however, the challenges of pursuing an acquisition-based strategy may also be substantial and surprisingly analogous to the barriers to regulation. for example, coordinating regional collaboration on land purchases can be difficult; that would require two entities identifying an appropriate funding source and agreeing on purchase guidelines. if a city is willing and able 36see http://www.statutes.legis.state.tx.us/docs/lg/htm/lg.245.htm. 37john m. donohue, jon q. sanders, sitting down at the table, in char miller, editor, on the border: an environmental history of san antonio, pittsburgh university press (2001) 182-195. also see “developers bypass aquifer limits”, john tedesco, san antonio express-news http://projects.expressnews.com/growth-and-the-aquifer. 38danziger, supra note 15 at 484. 39eckhardt, supra note 21. see http://www.legis.state.tx.us/billlookup/ text.aspx?legsess=85r&bill=sb1385 for sb 1385, proposed in the texas senate in 2017, regarding the mandatory use of conservation easements in lieu of municipal land regulations in certain cases. 40daniel press, saving open space, university of california press (2002) 14. to act unilaterally, it is at least possible to extend acquisition beyond its borders, unlike its confined regulatory jurisdiction. even that process can be tricky, however, since state restrictions on expenditures of public funds may constrain acquisition efforts as well. in fact, such a barrier occurred with the eapp, resulting in the city advocating for a change to state law to improve its acquisition strategy. at the inception of the program in 2000, section 334.001 of the tlgc provided just five options for a “venue” (using the state terminology) funded by a city-imposed sales tax. the one that best fit the city’s intent was for a “municipal parks and recreation system, since it at least allowed for land purchases.”41 however, another tlgc provision (331.001) limits parks purchases to “the county in which the municipality is situated,” thus restricting expenditures to bexar county and precluding acquisitions in the western counties.42 therefore, under the 2000 eapp, the city spent $45 million to buy about 6,500 acres, in fee-simple land purchases, classified as new parkland in order to comply with state law. these early acquisitions included some publicly accessible natural areas that remain in the municipal park inventory. these purchases, which were mostly completed by 2005, are illustrated in figure 2 and noted in the key as proposition 3 (2000) properties. the city later transferred some acquisitions, including parcels associated with the government canyon state natural area, to the texas parks and wildlife department. while the 2000 eapp averted development on substantial recharge acreage, the process was slow and expensive. it had become clear to proponents that a legislative change would allow the city to more efficiently employ the sales tax tool. this came with a 2004 amendment to the tlgc, advocated by a city-led lobbying effort, adding the following option to the list of allowable venues: “a watershed protection and preservation project; a recharge, recharge area, or recharge feature protection project; a conservation easement; or an open-space preservation program intended to protect water.”43 the city used this new opportunity to allocate tax funds “for conservation easements and open space preservation over the recharge and contributing zones.”44 subsequent eapp authorizations (2005, 2010, 2015) have been primarily expended on con41see texas local government code, http://www.statutes.legis.state.tx.us/ docs/lg/htm/lg.334.htm. 42texas local government code, http://www.statutes.legis.state.tx.us/ sotwdocs/lg/htm/lg.331.htm. even without that provision in place, it would be difficult to justify the purchase of parks in other counties, given the management expenses and decreased likelihood of use by city residents. 43texas local government code, supra note 41. 44edwards aquifer protection program & linear creekway parks development program, (presentation to san antonio city council, january 29, 2015, available at https://www.sanantonio.gov/portals/0/files/aquiferpark/ props1and2.pdf. http://www.statutes.legis.state.tx.us/docs/lg/htm/lg.245.html. http://projects.expressnews.com/growth-and-the-aquifer http://projects.expressnews.com/growth-and-the-aquifer http://www.legis.state.tx.us/billlookup/text.aspx?legsess=85r&bill=sb1385 http://www.legis.state.tx.us/billlookup/text.aspx?legsess=85r&bill=sb1385 http://www.statutes.legis.state.tx.us/docs/lg/htm/lg.334.htm http://www.statutes.legis.state.tx.us/docs/lg/htm/lg.334.htm http://www.statutes.legis.state.tx.us/sotwdocs/lg/htm/lg.331.htm http://www.statutes.legis.state.tx.us/sotwdocs/lg/htm/lg.331.htm https://www.sanantonio.gov/portals/0/files/aquiferpark/props1and2.pdf https://www.sanantonio.gov/portals/0/files/aquiferpark/props1and2.pdf texas water journal, volume 9, number 1 san antonio’s edwards aquifer protection program8 servation easements within the recharge zone in medina and uvalde counties, although six additional properties (representing about 800 acres) in bexar county have been purchased in fee-simple in these subsequent rounds.45 while the measure allows for contributing zone purchases, the recharge zone has remained the principal focus, a point i return to in the concluding section. according to bengston, et al.’s review of generic resource protection mechanisms, the use of conservation easements represents a transition from an acquisition to incentive-based mechanism. the city is not acquiring the property but providing the financial inducement for the owner to manage the land in a particular way.46 still, conservation easements do involve the sale of development rights to the city. whether the acquisition or incentive label is used, there are several benefits to the use of conservation easements over fee-simple acquisitions. for example, easements are considerably less expensive, there are 45lee, supra note 6. 46bengston, et al., supra note 32. fewer associated management obligations, and the city avoids the liability concerns that ownership entails.47 conservation easements also fit into the texas private property ethos, in that they operate on a willing buyer/willing seller model. the eapp does not utilize eminent domain, so landowners have complete discretion on whether to participate. interestingly, in her commentary on a very different issue (state law governing groundwater withdrawals in the absence of a groundwater conservation district such as eaa), puig-williams observed how that system “only affords the landowner the option to claim and use his property interest rather than preserve or conserve his property for future use.”48 conceptually, the eapp presents a markedly different opportunity, one 47while easements “grant no right of access to the general public . . . the city of san antonio, the edwards aquifer authority and their contractors must be allowed to enter the property, with prior landowner notification and approval, to conduct annual monitoring of the easement,” see www.sanantonio.gov/edwardsaquifer/conservationeasementfaqs. 48vanessa puig-williams, regulating unregulated groundwater in texas: how the state could conquer this final frontier, 7 texas water journal (2016) 92. https://journals.tdl.org/twj/index.php/twj/article/view/7039/pdf_19 figure 2.   figure 2. eapp purchases through 2005 and other protected acreage. source: city of san antonio edwards aquifer protection program. http://www.sanantonio.gov/edwardsaquifer/conservationeasementfaqs http://www.sanantonio.gov/edwardsaquifer/conservationeasementfaqs texas water journal, volume 9, number 1 9san antonio’s edwards aquifer protection program that rewards the property owner who seeks to use their land to conserve water resources.49 identifying funds acquisition options can offer a number of improvements over regulation in particular contexts. a primary barrier, however, is the funding mechanism. financing preservation through taxes or bond obligation effectively transfers the burden to citizens at large, versus particular landowners, when a municipality chooses acquisition over regulation. in san antonio, the 1/8 cent sales tax for the initial $45 million eapp funding was viable at its initiation in 2000, since there was still room for an additional 1/4 of a cent in the state mandated cap of 2% for municipalities.50 a voter-approved funding mechanism is a crucial foundation for future public acceptance, according to berry. he observed that, in the absence of citizen choice, “no value can be imputed to [the acquired good] that has any explanatory or ethical content.”51 beyond the initial identification of a funding source, land acquisition programs must also present a transparent pricing mechanism to justify that purchase value. as berry noted, the utility of open space, and therefore its objective value, can be difficult to estimate and defend to the public.52 however, since the eapp operates through purchase of land or conservation easements, pricing relies on traditional real estate appraisals but with a small twist for easements. an appraiser experienced with conducting conservation easement valuations in this region provides two property appraisals, reflecting the fair market value price with, and without, full development rights. typically, the forfeit of the full rights, and thus the price paid for the easement, is roughly in the range of 40% of the value with development rights. for example, a ranch valued at $10 million with full development rights, might appraise at $6 million with the loss of virtually all development options. therefore, 49for a useful discussion of the link between conservative stewardship and eapp, see rancher todd figg’s comments in the san antonio portion of the documentary, water blues/green solutions, produced by penn state public media, http://www.waterblues.org/themes/san-antonio/san-antonio-segment. 50 texas levies a state sales tax of 6.25%, allowing cities to add an additional 2% for some combination of general funds and authorized projects. the 2% ceiling for the city of san antonio was reached in 2012, with approval of a 1/8 cent increase through 2020, for the pre-k4sa program. thus, the 2015 eapp renewal occurred within a different context, in which any newly proposed uses for sales tax funds could have succeeded only by being chosen instead of eapp, although no serious contenders emerged. in addition to the eapp, creekways, and pre-k for sa allocations, the city sales tax includes 1% for the general fund and .75% for transportation projects. 51david berry, preservation of open space and the concept of value, 35 american journal of economics and sociology (1976) 113-124, at 115. 52berry, ibid. the city through the eapp would pay $4 million to the owner for the extinguishment of those rights, memorialized through the conservation easement.53 as daniels pointed out in his general review of easement strategies, however, appraisal processes that include projections of lost development value can be controversial. the public may believe that estimate is unrealistically inflated or may argue that the owner should not profit from the “windfall” price, since they did not earn it.54 returning to the high levels of support at the polls, however, it would be surprising that citizens would support the eapp so strongly only to later question the prices paid to protect the land. indeed, there is no evidence of these sorts of reservations emerging. another potential source of contention comes from the other side of this purchase price equation. the “lost” development value, for which the owner is compensated through the price of the easement, is also lost to local property tax rolls. citizens and officials in the areas of acquisition could protest that these transactions, by removing land from development (and value from property tax appraisals), are constraining the future tax base. in fact, new york city’s lap program has encountered notable resistance from upstate communities for this reason. in response, new york city pays $157 million a year in property taxes on land acquired in the catskill/delaware watershed to cover the lost development value, although even that has not alleviated complaints.55 while eapp easements similarly preclude significant development in perpetuity, san antonio has avoided any such backlash from the western counties. bringing this full circle, the acquisition mechanism matches up well with san antonio’s geographic/legal context. as daniels noted, the choice of any policy demanding significant financial resources (such as acquisition or incentives) always begs the question of why the goal was not achieved by the cheaper (at least for the government) means of regulation. specifically concerning land preservation, he suggested that citizens will always ask why the municipality did not use zoning or some other relatively economical regulation to keep the land in its natural state, encumbering the landowner’s development options rather than paying for them.56 however, the fact that most of the recharge zone is beyond the city’s regulatory jurisdiction 53more precisely, these perpetual easements normally restrict development to ½ of 1% impervious cover. most allow “limited development rights, such as building a small number of additional homes on the land,” while “no-development zones are included in agreements for properties that contain extra-sensitive features, such as sinkholes, streams or springs.” see lee, supra note 6. 54thomas l. daniels, the purchase of development rights: preserving agricultural land and open space, 57 journal of the american planning association (1991) 421-431. 55wisnieski, supra note 22, 2 (online). 56daniels, ibid note 54. http://www.waterblues.org/themes/san-antonio/san-antonio-segment http://www.waterblues.org/themes/san-antonio/san-antonio-segment texas water journal, volume 9, number 1 san antonio’s edwards aquifer protection program10 renders this question largely moot, and the choice between regulation and acquisition mechanisms is averted. defining purchase guidelines once a governmental entity has identified a mechanism and funding source, the next challenge for any acquisition program is developing clear guidelines that align spending with goals. as danziger argued, “absent economic and utilitarian considerations, the planner is left with little or no objective standard or discipline,” leading to a “highly questionable” use of public funds.57 land preservation programs in general can be susceptible to imprecision in prioritization, as a number of valid but subjective targets, such as protecting scenic views or preserving farmland can guide purchases. when programs concentrate on acquiring land or development rights to sustain recharge to a particular aquifer, however, developing parcel identification and prioritization methodology tightly bound to the narrow goal should be relatively straightforward. for the eapp, the change in state law allowing use of the sales tax for conservation easements in the western counties was an important step toward ensuring the policy’s goal of significant recharge protection. nevertheless, it does not alone guarantee that the city will only pursue appropriate lands in those counties. to support that outcome, the eapp first employs a geographic information systems (gis) model that ranks all land in the target area through four data layers, applied down to the 1-meter level. the model was developed by a scientific evaluation team “consisting of aquifer experts convened to prioritize undeveloped properties based on their environmental characteristics in order to achieve maximum value for voter-approved dollars.”58 fifty percent of the model score is determined by best available information regarding the presence of caves, faults, sinkholes, and other recharge features. biological cover contributes another potential 20%, awarding higher scores for vegetation associated with greater recharge potential. the final 30% is evenly split between property size and adjacency to similarly protected lands (whether through eapp, conservation easements held by other entities or public ownership). the first two factors, permeability and vegetative cover, ensure prioritization of properties with the strongest links to recharge quality and quantity. the edwards aquifer recharge zone presents some variation in its recharge potential that is considered by these factors. the second two factors, size and adjacency, contribute to building an integrated system of protection, especially in regard to safeguarding entire watersheds from development in an efficient manner. this is accomplished 57danziger, supra note15, at 484 and 486. 58city of san antonio, edwards aquifer protection program, available at www.sanantonio.gov/edwardsaquifer/about. through the acquisition of contiguous easements on large swaths of land. beyond reviewing a parcel’s rank in the model, the next step for assessment is a site visit to gather additional evidence. through an inter-local agreement, the city cooperates with eaa staff to provide detailed geologic reports from these in-person inspections, particularly highlighting observable karst geology such as caves and sinkholes, some of which the model may not have captured. the reports grade each parcel, indicating relative value for quality and quantity of aquifer recharge. all of these factors work toward ensuring that appropriate properties are considered by the conservation advisory board (cab), which serves as the initial recommending group, and then by the san antonio city council for final decision on acquisition. furthermore, these procedures enable both bodies to prioritize available land. either cab or the city council, however, is free to decline purchase for other reasons. typically, this might involve a property owner insisting on a price above fair market value or asking for too much flexibility for future development. another scenario would involve the perception that development is unlikely to occur even in the absence of a conservation easement, for example if the land lacks road frontage or is particularly remote or rugged. overall, guidelines that fully reflect the goals of the eapp provide a foundation for recommended purchases. even when acquisitions may fulfill some other purpose, such as preservation of a historic ranch or endangered species habitat, the city expends funds only upon evidence of recharge integrity.59 while opponents could assail any such ranking model as based on questionable science, no criticisms of that sort of have emerged for the eapp. probably the most likely threat to the program using the model to maximum efficiency is the human factor limitation, i.e., when the property owner of a significant parcel simply is not interested in participation. demonstrating impact general efficiency while eapp’s decision rules and strategies appear well defined and feasible to implement, the next step toward determining success is whether the property protections are in fact 59these sorts of multi-purpose purchases may still raise questions about dilution of the program’s goals. the most controversial in this regard was use of funds for the bracken bat cave in 2014. see mark reagan, bracken bat cave would save more than bats, sa current, (october 14, 2014), available at https://www.sacurrent.com/sanantonio/bracken-bat-cave-wouldsave-more-than-bats/content?oid=2326588. iris dimmick, city acts to protect bracken cave’s bat colony, rivard report (october 16, 2014), available at https://therivardreport.com/bracken-bat-cave-protected-by-conservation-easement/. http://www.sanantonio.gov/edwardsaquifer/about https://www.sacurrent.com/sanantonio/bracken-bat-cave-would-save-more-than-bats/content?oid=2326588 https://www.sacurrent.com/sanantonio/bracken-bat-cave-would-save-more-than-bats/content?oid=2326588 https://therivardreport.com/bracken-bat-cave-protected-by-conservation-easement/ https://therivardreport.com/bracken-bat-cave-protected-by-conservation-easement/ texas water journal, volume 9, number 1 11san antonio’s edwards aquifer protection program achieving expectations. there are a number of ways to approach assessment, making this an intricate task. i present a rudimentary first step in table 1, through a comparison of the eapp to new york city’s lap and austin’s water quality land acquisition program (wqlap). there are several implications, and limitations, to this simple comparison. most obviously, the eapp has protected more acres, and at a lower average price, than the other two programs, indicating an efficient model of land acquisition. the comparison programs are analogous in that both use a strategy of purchasing land to protect water quality and quantity. as noted above, new york city is protecting surface water and not groundwater but is similarly targeting private lands outside of city limits. austin’s wqlap, like eapp, focuses on recharge and contributing lands, with its emphasis on the barton springs segment of the edwards aquifer recharge and contributing zones. however, the comparison is somewhat unbalanced, as the three programs have important differences. for example, the city of san antonio has spent most of the eapp funds on less costly conservation easements, with only about 5% of total expenditures for fee-simple land purchases. in comparison, about 35% of austin’s wqlap properties are fee-simple. new york city’s lap includes roughly 65% fee-simple lands and has encountered another unique problem, in which “the city’s buying presence has created more competition for land, causing prices to rise.”60 since municipalities are unlikely to pay more than fair market value for fee-simple land or conservation easements, the price per acre indicated on table 1 simply reflects lower market values in eapp’s area of interest, as well as greater ease in acquiring conservation easements over fee-simple purchase. still, this simple comparison indicates the eapp as a comparably efficient use of public funds. 60wisnieski, supra note 22; new york city department of environmental protection, long-term acquisition plan, 2012-2022 available at http:// www.nyc.gov/html/dep/pdf/resources/lt_plan_final.pdf. another important indicator of conformity with eapp’s programmatic goal success is the geographic distribution of fee-simple and conservation easement purchases. this tracks roughly proportional to recharge location. about 67% of protected parcels are in uvalde county, which provides the highest percentage of recharge to the san antonio pool, 24% in medina (second highest contributor to san antonio pool), and 7% in bexar (lowest contributor of the three counties to san antonio pool).61 as figure 3 shows, indicating all eapp purchases through 2015, identified as proposition 3 and proposition 1 properties in the key, there is also a pattern of securing blocks within particular watersheds, such as the blanco creek and frio river watersheds, rather than assembling a disjointed patchwork of protected land. a final indicant of fiscal efficiency is purchases where the city leveraged eapp funds with other resources. although limited, there are some examples of this occurring. in 2016, the city expended over $5 million from the eapp for fee-simple purchase of a 165-acre portion of the classen-steubing ranch, a parcel with unusually high recharge capacity and imminent 61the exact breakdown of recharge to the san antonio pool is difficult to ascertain, partly because of yearly variation and partly depending on the source. the eaa reports recharge from five counties: uvalde, medina, bexar, kinney, comal, and hays, but it is not clear that all flows to the san antonio pool. see edwards aquifer authority hydrologic data report for 2006, available at http://www.edwardsaquifer.org/documents/2007_hamilton-etal_2006hydrologicdata.pdf. about 37% of that reported recharge occurs in comal, hays and kinney counties. per an email to the author from geary schindel, (chief technical officer, aquifer management services, eaa) on july 21, 2017, “comal and hays counties are down gradient of the city’s water supply; kinney county distribution is very small and probably not worth considering. most of that water discharges at the san felipe springs.” by eliminating comal, hays, and kinney counties from eaa figures, a very rough estimate is that uvalde county provides about 56.7%, medina county 27.5%, and bexar county 15.7% of recharge to the san antonio pool. city program year started spent so far (millions of dollars) acres protected price per acre (average) austina water quality protection land 1998 $143 28,308 $5,051 new yorkb land acquisition program 1997 $438 135,149 $3,240 san antonio eapp 2000 $225 146,075 $1,540 acity of austin, austin water, water quality protection land website http://www.austintexas.gov/department/water-quality-protection-land; 2014 annual report, available at http://www.austintexas.gov/edims/document.cfm?id=240099. also see asher price, austin’s water quality protection land purchases, austin american-statesman (october 15, 2012). it is difficult to find comprehensive and up to date information on austin’s program in one place, and the numbers from different sources vary a bit from each other. b wisnieski, supra note 22. table 1. comparison of urban land acquisition programs. http://www.nyc.gov/html/dep/pdf/resources/lt_plan_final.pdf http://www.nyc.gov/html/dep/pdf/resources/lt_plan_final.pdf http://www.edwardsaquifer.org/documents/2007_hamilton-etal_2006hydrologicdata.pdf http://www.edwardsaquifer.org/documents/2007_hamilton-etal_2006hydrologicdata.pdf http://www.austintexas.gov/department/water-quality-protection-land http://www.austintexas.gov/department/water-quality-protection-land http://www.austintexas.gov/edims/document.cfm?id=240099 texas water journal, volume 9, number 1 san antonio’s edwards aquifer protection program12 development threat.62 however, the seller would agree to that transaction only if the city purchased the entire property, which included an additional 39 acres. the city council therefore combined program funds with an option to buy the remaining piece for parkland from a pending bond election.63 in 2015, the city secured a matching grant from the u.s. department of agriculture natural resources conservation service’s agricultural conservation easement program to pur62josh baugh, part of land deal’s funding ok’d, san antonio express-news (june 17, 2016) a3. 63see city council agenda item/map, available at https://sanantonio.legistar.com/legislationdetail.aspx?id=2746971&guid=81f9 c d f 3 a d 4 2 4 2 8 4 a 9 b 4 3 0 f f 8 5 1 5 1 f 7 f & f u l l te x t = 1 ; https://sanantonio.legistar.com/view.ashx?m=f&id=4490679&guid=b2c9cd6a-1bc7-4591-86c3-a82f0a6833db. chase an easement appraised at almost $7 million on rancho blanco, a 1,100-acre property along the san geronimo creek watershed, and one of the few contributing zone properties targeted by eapp.64 with the federal grant covering almost $3 million of that price, the eapp’s portion was reduced to $4 million.65 in this case, the two programs have complementary 64se e m a p a t : h t t p s : / / s a n a n t o n i o . l e g i s t a r. c o m / v i e w. a s h x ? m = f & i d = 3 9 0 8 9 9 8 & g u i d = 4 f f 5 8 6 f 8 9 5 0 6 4 e d 1 b 3 0 9 a 2 c 3 2 7 e 6 f 1 3 b . 65see https://sanantonio.legistar.com/legislationdetail.aspx?id=2404049 &guid=7a1bb6db-a093-4642-9348-2d9efcea29c6&options=&search=&fulltext=1. figure 3.   figure 3. eapp purchases through 2015 and other protected acreage, with watersheds. source: city of san antonio edwards aquifer protection program. https://sanantonio.legistar.com/legislationdetail.aspx?id=2746971&guid=81f9cdf3-ad42-4284-a9b4-30ff85151f7f&fulltext=1 https://sanantonio.legistar.com/legislationdetail.aspx?id=2746971&guid=81f9cdf3-ad42-4284-a9b4-30ff85151f7f&fulltext=1 https://sanantonio.legistar.com/legislationdetail.aspx?id=2746971&guid=81f9cdf3-ad42-4284-a9b4-30ff85151f7f&fulltext=1 https://sanantonio.legistar.com/view.ashx?m=f&id=4490679&guid=b2c9cd6a-1bc7-4591-86c3-a82f0a6833db https://sanantonio.legistar.com/view.ashx?m=f&id=4490679&guid=b2c9cd6a-1bc7-4591-86c3-a82f0a6833db https://sanantonio.legistar.com/view.ashx?m=f&id=3908998&guid=4ff586f8-9506-4ed1-b309-a2c327e6f13b https://sanantonio.legistar.com/view.ashx?m=f&id=3908998&guid=4ff586f8-9506-4ed1-b309-a2c327e6f13b https://sanantonio.legistar.com/view.ashx?m=f&id=3908998&guid=4ff586f8-9506-4ed1-b309-a2c327e6f13b https://sanantonio.legistar.com/legislationdetail.aspx?id=2404049&guid=7a1bb6db-a093-4642-9348-2d9efcea29c6&options=&search=&fulltext=1 https://sanantonio.legistar.com/legislationdetail.aspx?id=2404049&guid=7a1bb6db-a093-4642-9348-2d9efcea29c6&options=&search=&fulltext=1 https://sanantonio.legistar.com/legislationdetail.aspx?id=2404049&guid=7a1bb6db-a093-4642-9348-2d9efcea29c6&options=&search=&fulltext=1 texas water journal, volume 9, number 1 13san antonio’s edwards aquifer protection program goals—recharge protection for the city and native grassland preservation for the u.s. department of agriculture.66 impact on recharge quality and quantity the full implication of all these indicants, however, is more difficult to estimate. an efficient record of land/conservation easement purchases, in the appropriate locations, is an instrumental measure that does not necessarily demonstrate impact on recharge quality and quantity. one of the inherent limitations of a preventive policy strategy, particularly one that safeguards land to ensure future water integrity, is adequately documenting success. as acknowledged by new york city’s department of environmental protection, in justifying its lap, “land acquisition is an anti-degradation tool that does not have any immediate impact on water quality. further, it is impossible to predict with certainty whether or how a property protected by lap might have been developed and how such development would have impacted water quality.”67 with that proviso in mind, additional evidence appears in an assessment report of the eapp produced by lmi in 2014, commissioned by the city.68 its conclusions on recharge quality and quantity impact are favorable but not conclusive, reflecting the difficulties in demonstrating effectiveness of preventive measures. the water quality section does little more than lay out the generic need for local efforts, beyond existing state and federal regulations, to prevent the intensified pollutants linked to residential expansion and commercial or industrial land uses. on this point, all the assessment report can do is to highlight the eapp as a means of potentially minimizing future contamination by protecting critical land from development. again, the preventive strategy eliminates possible evidence of what might have happened in the absence of eapp. the assessment report is more specific and detailed, however, on the importance of protecting lands directly along stream66see https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/ easements/acep/. 67soll, supra note 22, 193. also, see danziger, supra note 15, on the impossibility of presenting information on what would have occurred in the absence of any acquisition program. 68justin a. cleveland, et al., city of san antonio edwards aquifer protection program, office of eastpoint and real estate, assessment of the current status and long-term viability of the city’s edwards aquifer protection program, report atn30ti, lmi (2014), available at https://www.researchgate. net/publication/272023372_assessment_of_the_current_ s tat u s _ a n d _ lo n g t e r m _ v i a b i l i t y _ o f _ t h e _ c i t y ’ s _ edwards_aquifer_protection_program. lmi, originally known as logistics management institute, is a non-profit government contracting and consulting firm founded in 1961. its southwest region office is located in san antonio, see http://www.lmi.org/en/about-lmi/locations-directions-(1)/southwest-region/southwest-region. beds in the recharge zone, stating “management of activities that might degrade water quality in this area (such as urban development, contaminant storage, and industrial activities) is essential for protecting water quality.”69 it points out that the eapp had protected just 18.4% of recharge zone streams through 2013. the report’s authors highlight the role of streams in the contributing zone as well, focusing on the rapid contamination that could affect the edwards aquifer if pollutants entered these waters, and observing that the eapp has protected only 3.6% of contributing zone streambeds. while purchases since 2013 have likely resulted in additional protected land in these areas, this section of the assessment report points to both the potential benefits of the eapp and the limits on what it has achieved so far. in the water quantity section, the assessment report concludes that the eapp had already protected 51% of current annual saws withdrawals from the edwards aquifer for delivery to local customers. figure 4 represents an assessment of various eapp continuation options against saws-estimated future need. the red dot added to this chart emphasizes an important benchmark: the year (2030) in which enough supply would be secured through the eapp (assuming it is renewed at least at the $90 million level in 2020 and 2025) to meet the city’s projected 2060 demand for edwards aquifer water.70 this discussion of the dynamic between the eapp and recharge quantity links to the question of the extent to which impervious cover disrupts recharge volume. the assessment report operates on the premise that, in the absence of eapp protection, zero recharge would occur on these properties. this is an oversimplification; allowing development to proceed unabated, while lowering recharge volume, would likely not reduce it to zero. still, purchases/conservation easements are the only way to ensure an absence of disruption to the natural recharge process. conclusions and going forward this review of the eapp has explicated key components of its creation and implementation. overall, the need for the eapp appeared well documented and accepted by voters, although some aspects of that narrative are more subjective. the acquisition mechanism adapts well to the hydrogeology of the edwards aquifer, given that the city has limited options for regulation. purchase guidelines focus squarely on the goal of recharge protection. finally, while there are challenges to documenting impact, the eapp presents a record of efficient69cleveland, ibid, at 3-1. 70this projection is based on saws 2012 water management plan, which already included the development of several non-edwards aquifer sources, but preceded adoption of the vista ridge regional water supply project. cleveland, ibid, at 4-2. https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/easements/acep/ https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/easements/acep/ https://www.researchgate.net/publication/272023372_assessment_of_the_current_status_and_longterm_viability_of_the_city's_edwards_aquifer_protection_program https://www.researchgate.net/publication/272023372_assessment_of_the_current_status_and_longterm_viability_of_the_city's_edwards_aquifer_protection_program https://www.researchgate.net/publication/272023372_assessment_of_the_current_status_and_longterm_viability_of_the_city's_edwards_aquifer_protection_program https://www.researchgate.net/publication/272023372_assessment_of_the_current_status_and_longterm_viability_of_the_city's_edwards_aquifer_protection_program http://www.lmi.org/en/about-lmi/locations-directions-(1)/southwest-region/southwest-region http://www.lmi.org/en/about-lmi/locations-directions-(1)/southwest-region/southwest-region texas water journal, volume 9, number 1 san antonio’s edwards aquifer protection program14 ly spending funds to meet the overall goal. this section now describes how particular programmatic components may evolve. ironically, the region’s rapid population growth, a key pillar of the eapp’s justification, could represent a threat to its continuation going forward. this is largely a matter of perception, linked to the declining share of san antonio’s total water supply that comes from the edwards aquifer. in its 2017 water management plan, saws shows that the aquifer’s share of water provided to customers has dropped from 70% of total supply in 2000 to 42% (drought year)/60% (average year) in 2017. furthermore, edwards aquifer water will represent only 31% (drought year)/52% (average year) by 2070, the result of a diversification initiative, including such endeavors as the carrizo aquifer water project, h2oaks desalination plant, and the vista ridge regional water supply project. however, it is important to keep these projections in perspective. the declining percentage is not a function of the city using less edwards aquifer water, but rather the result of increasing population requiring a larger supply, in turn diminishing the aquifer’s proportional share. the management plan declares that “the edwards aquifer has been, and will continue to remain, the cornerstone of san antonio’s water supply,” suggesting that the full saws-permitted annual edwards withdrawals will still be necessary.71 71available at http://www.saws.org/your_water/waterresources/2017_ wmp/docs/20171107_saws-2017-water-management-plan.pdf (17) in sum, these new water sources might weaken but never eliminate justification for edwards recharge protection. rather, the major challenge to the eapp moving forward will more likely be competition for that limited sales tax with exhaustion of the current $100 million funding pool, probably in 2020. at that point, other funding priorities could present a challenge to securing additional funds for eapp. this is where another possible limitation of eapp emerges, again concerning its justification. while each funding phase met its goal through the efficient expenditure of allocated funds to protect sensitive land, challengers could highlight the absence of a clearly defined, ultimate endpoint. in the extreme, that endpoint could be when the city has acquired easements on all undeveloped recharge zone land and perhaps even extending to the contributing zone. that goal is clearly unrealistic, but may present an opportunity to prioritize certain property types even further, such as focusing on land adjacent to river and streambeds. the question of whether the eapp should move toward similar protections of contributing zone acreage remains unsettled. given the basic flowpath from contributing to recharge zone, the former may warrant significant protection, and the authorizing language for eapp allows purchases in both zones. nevertheless, that would involve a great deal more funding and years of effort. while “recent research clearly highlights figure 4. estimated link between continuation of program and future demand. source: cleveland, supra note 70, 4-7. figure 4 – estimated link between continuation of program and future demand source – cleveland, supra note 70, 4-7 http://www.saws.org/your_water/waterresources/2017_wmp/docs/20171107_saws-2017-water-management-plan.pdf http://www.saws.org/your_water/waterresources/2017_wmp/docs/20171107_saws-2017-water-management-plan.pdf texas water journal, volume 9, number 1 15san antonio’s edwards aquifer protection program the importance of the contributing zone to recharge,” it is too extensive for the eapp feasibly to protect its entirety.72 in short, shifting priorities and emerging competition for the sales tax will challenge eapp advocates to specify how much is enough, if asking voters to endorse another renewal.73 relatedly, defining indicators of success for the eapp may inherently be its most vulnerable component, given the challenge of demonstrating the prevention of future harms to recharge quality and quantity. to a point, conclusions on whether it has been successful relies a great deal on belief in whether it was necessary in the first place. that public perception seems strong and makes a case for the definition of eapp’s success as simply the evidence that it protects as much sensitive land as possible. however, as competition for the sales tax emerges, the challenge of demonstrating results could shape the community dialogue on future renewals. at the same time, the evidence of accomplishment, at least on the simpler scale of dollars expended and acres protected, may convince citizens that the eapp has successfully run its course, completing all it set out to do. overall, this review makes the case for the rationality and utility of a strategy that focuses on land in order to protect water. some aspects of the eapp are specifically linked to the san antonio context. for example, the hydrogeology of the region, in combination with jurisdictional limits, makes acquisition the only feasible option for protecting sensitive lands that influence the san antonio supply. furthermore, the city has benefitted from a market with relatively low land appraisal values, and a steady supply of willing participants. however, this review may provide generalizable principles for any governmental entity considering this approach, emphasizing the importance of clear public communication, guidelines that appropriately match the overarching goal, and the ability to demonstrate the efficient expenditure of funds. 72 ronald t. green, geary schindel, and rebecca nunu, refined weighting of parcels in the edwards aquifer contributing zone. presentation to eapp cab, february 24, 2017. 73in the wake of the hurricane harvey induced gas shortage in the fall of 2017, and subsequent failure of public transit to fill commuters’ needs, the san antonio express-news already broached the topic. an editorial stated, “(i)f mayor ron nirenberg and a majority of the san antonio city council want to better fund transit—bus service, rail and more bike paths—they will have to wrestle with some hard choices. this could mean supporting a dedicated transit fee, or shifting sales tax dollars away from edwards aquifer protection or (and this is incredibly unlikely) pre-k 4sa. perhaps it’s time to look at other ways to protect the aquifer from overdevelopment,” available at: http://www.mysanantonio.com/opinion/editorials/article/gas-shortagereveals-via-s-flaws-12215996.php. http://www.mysanantonio.com/opinion/editorials/article/gas-shortage-reveals-via-s-flaws-12215996.php http://www.mysanantonio.com/opinion/editorials/article/gas-shortage-reveals-via-s-flaws-12215996.php exploring groundwater recoverability in texas: maximum economically recoverable storage texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 11 number 1 | 2020 https://www.texaswaterjournal.org volume 11, number 1 2020 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineer-ing, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. jude a. benavides, ph.d. university of texas, rio grande valley managing editor chantal cough-schulze texas water resources institute layout editor sarah richardson texas water resources institute staff editor ava english texas water resources institute kerry halladay texas water resources institute kristina j. trevino, ph.d. trinity university editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute cover photo: tres palacios river at fm 1468 near clemville, texas. ©2019 ed rhodes, twri. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. https://twj-ojs-tdl.tdl.org/twj/index.php/twj/support https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water journal, volume 11, number 1 texas water resources institute texas water journal volume 11, number 1, december 10, 2020 pages 152-171 exploring groundwater recoverability in texas: maximum economically recoverable storage abstract: the 2017 texas state water plan projects total supply deficits of 4.8 and 8.9 million acre-feet under drought-of-record conditions by the year 2020 and 2070, respectively, driven by a growing population concurrent with declining available water supplies. reductions in groundwater supply account for 95% of anticipated declines in total water supply. meanwhile, restrictive groundwater management plans may be creating a regulation-induced shortage of groundwater in texas, given the significant groundwater storage volumes that are unutilized under many management plans. however, these estimates do not account for many of the physical and none of the economic constraints to groundwater recoverability. we report an analysis of groundwater extraction feasibility and simulate maximum economically recoverable storage for conditions representative of the central section of the carrizo-wilcox aquifer under economic constraints associated with agricultural uses. two key limitations are applied to simulate recoverability: (1) the value of water pumped relative to pumping costs and (2) the capacity of the aquifer and well to meet demand. our results indicate that these constraints may limit certain uses to as little as 1% of current groundwater availability estimates. we suggest that texas groundwater managers, stakeholders, and policymakers assessing groundwater availability need an alternate approach for estimating recoverability. keywords: groundwater availability, groundwater recoverability, pumping costs, total estimated recoverable storage, ters, maximum economically recoverable storage, mers 1 graduate research assistant bureau of economic geology, phd candidate jackson school of geosciences, the university of texas at austin 2 retired energy and earth resources graduate program, jackson school of geosciences, the university of texas at austin 3 senior research scientist bureau of economic geology, jackson school of geosciences, the university of texas at austin * corresponding author: justin.thompson@utexas.edu citation: thompson jc, kreitler cw, young mh. 2020. exploring groundwater recoverability in texas: maximum economically recoverable storage. texas water journal. 11(1):152-171. available from: https://doi.org/10.21423/twj.v11i1.7113. © 2020 justin c. thompson, charles w. kreitler, michael h. young. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. justin c. thompson1*, charles w. kreitler2, and michael h. young3 https://doi.org/10.21423/twj.v11i1.7113 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 11, number 1 153maximum economically recoverable storage introduction is texas running out of groundwater, blessed with abundance, or somewhere in the middle? this question, historically shrouded in scientific uncertainty and political controversy, represents a complex nexus of hydrogeology, economics, and policy with many relevant and potentially conflicting considerations. hydrogeologic conditions and management objectives vary significantly across the state, and as a consequence there is no universal yield solution. nonetheless, one key element common to all human groundwater demand is recoverability, defined as the relative ease or difficulty of extraction. recoverability is constrained by aquifer characteristics, well design, and economics. while recoverability data is crucial to groundwater planning and management, particularly with respect to availability assessments, texas’ best estimates of recoverable groundwater volumes reflect only the volume in storage and take no account of well design or economic constraints. this study therefore addresses the question: what are the economic and physical limits to recoverability? by establishing these limits, we can better estimate potentially available groundwater for given uses and infrastructure. goals and objectives we seek here to (a) develop improved methods for quantifying groundwater recoverability by integrating aquifer and well dynamics with economics and (b) contextualize our results within existing policy frameworks and discussions. the key purpose of this study is to facilitate the exploration of planned and potential changes in groundwater recoverability by developing methods for analytically calculating the physical and economic constraints and limitations to pumping associated with changes in depth-to-water over time. this study does not seek to establish a yield prescription for groundwater management, but it does estimate a reference limit we term maximum economically recoverable storage (mers). while not designed to be economically efficient, mers is intended to establish clear and rational limits to groundwater recoverability for the purpose of evaluating groundwater availability under variable uses and infrastructure. moreover, because mers is, in part, a function of depth-to-water, its limits are directly comparable to existing or proposed depthto-water based groundwater management goals. for any pumping groundwater well, the maximum volume of recoverable water is a subset of total aquifer storage, which may be numerically simulated using simplified hydrogeologic and economic constraints. the maximum yield a well can physically produce is limited by the relationship between the aquifer, well, and pumping rate. we anticipate that aquifer and pumping characteristics introduce capacity constraints where demand is constant. we further expect some percentage of saturated thickness to be unavailable for production (a groundwater “dead pool”) at any given pumping rate, and a relationship to exist between the pumping rate and the saturated thickness available for production. in terms of economics, increasing depth-to-water increases pumping costs where other factors are held constant. we expect these changes can be significant to terms used in paper acronym/initialism descriptive name dfc desired future conditions gcd groundwater conservation district gma groundwater management area mag modeled available groundwater mers maximum economically recoverable storage ters total estimated recoverable storage twc texas water code twdb texas water development board texas water journal, volume 11, number 1 exploring groundwater recoverability in texas:154 under drought-of-record conditions in the amount of 4.8 and 8.9 million acre-feet by the year 2020 and 2070, respectively, resulting from an anticipated 70% increase in the population concurrent with an 11% projected decline in total water supplies (twdb 2016). the plan further estimates that, if left unresolved into 2070, these deficits would result in approximately $151 billion of annual economic losses and roughly a third of the projected population having less than half the projected municipal water demand (twdb 2016). the plan considers drought-of-record conditions. under unprecedented drought driven by climate change (nielsen-gammon et al. 2020), supply deficits and economic losses may be even higher. even without this consideration, the plan findings establish a central theme: demonstrating the necessity of responsive water development financing while sounding a call to action for policymakers. but how were these conclusions reached? what key assumptions were made? first, an important distinction should be noted between water resource availability and water resource supply as those terms are defined by the plan. section 6.1 of the plan clarifies: “water availability refers to the maximum volume of raw water that could be withdrawn annually from each source (such as a reservoir or aquifer) during a repeat of the drought of record. availability does not account for whether the supply is connected to or legally authorized for use by a specific water user group. water availability is analyzed from the perspective of the source and answers the question: how much water from this source could be delivered to water users as either an existing water supply or, in the future, as part of a water management strategy? […] [then], planning groups evaluate the subset of the water availability volume that is already connected to water user groups. this subset is defined as existing supply.” (twdb 2016, p. 61 [emphasis added]) recognizing this distinction, the plan reveals a projected 20% decline in available groundwater (from 12.3 million to 9.8 million acre-feet) and a 24% decline in groundwater supply (from 7.2 million to 5.5 million acre-feet) over the planning period (2020 through 2070) “… due primarily to reduced availability from the ogallala aquifer, based on its managed depletion, and the gulf coast aquifer, based on regulatory limits aimed at reducing long-term groundwater pumping to limit land surface subsidence” (twdb 2016, p. 70). indeed, reductions in groundwater supply considered by the plan account for 95% of the anticipated 11% decline in total water supply (twdb 2016). if the impacts of population growth are assumed valid and held constant (i.e., only the decline in total supply is considered), the total water resource agricultural and other uses. therefore, we address two hypotheses in this study: • h1: in shallow and unconfined settings, physical constraints related to the capacity of the aquifer and well to meet demand, not economic constraints, will limit groundwater recoverability. • h2: in deep and confined settings, economic constraints, not physical constraints, will limit groundwater recoverability for some uses, restricting them to producing from confined, pressurized storage. groundwater management in texas groundwater in texas is managed at the local level by approximately 100 groundwater conservation districts (gcd(s)). however, in 2005, the 79th texas legislature enacted house bill 1763, which amended the texas water code (twc) to regionalize groundwater availability decision making under groundwater management areas (gma(s)). house bill 1763 further instructs gcds within a gma on how they should cooperate with each other and the texas water development board (twdb) to determine groundwater volumes available for permitting. chapter 36 §108 of the twc states that “[gcds] shall propose for adoption desired future conditions for the relevant aquifers within the [gma].” desired future conditions (dfc(s)) are further defined by title 31, part 10, §356.10(6) of the texas administrative code to be “the desired, quantified condition of groundwater resources (such as water levels, spring flows, or volumes) within a [gma] at one or more specified future times as defined by participating [gcds] within a [gma] as part of the joint planning process.” our evaluation of currently adopted dfcs shows that, while spring flow and saturated thickness metrics are common, groundwater in texas is most commonly managed as a function of depth-to-water over time (i.e., x feet of drawdown over y years). once dfcs are adopted, chapter 36 §108(b) of the twc requires the twdb to calculate values for the volume of modeled available groundwater (mag) that comply with the adopted dfc given the hydrologic properties of the aquifer in question. finally, chapter 16 §053(e)(3) of the twc requires that gcds honor mag volumes in their groundwater management plans. in this way, the dfcs adopted by gcds create a regulatory target or cap for groundwater extraction in the form of the derived mag volumes provided by the twdb (mace et al. 2008). 2017 state water plan: water for texas the latest iteration of the texas state water plan, 2017’s “water for texas,” predicts a deficit of total water supplies texas water journal, volume 11, number 1 155maximum economically recoverable storage figure 1. change in groundwater availability by county from the state water plan in 2012 to 2017 (twdb 2016). deficits portended by the plan are driven almost entirely by anticipated declines in groundwater availability. second, we note that this water plan determines, for the first time, groundwater availability volumes as the sum of the mag volumes provided by the twdb in accordance with the dfcs adopted by gcds (twdb 2016). this change in accounting methodology from the previous state water plan (2012) to the current plan (2017) has produced significant changes in regional groundwater availability estimates, in many jurisdictions increasing or decreasing volume by 50% or more (twdb 2016) (figure 1). however, mag volumes derived from dfcs do not strictly adhere to the definition of availability given by the plan. specifically, mag volumes from dfcs are the total volume of groundwater that is “legally authorized for use” (twdb 2016, p. 61). total estimated recoverable storage prior to adopting a dfc, chapter 36 §108(d)(3) of the twc requires gcds to consider, among nine potentially conflicting issues, the total estimated recoverable storage (ters) volumes provided by the twdb for each area aquifer. ters is defined by rule §356.10.23 of the texas administrative code as “the estimated amount of groundwater within an aquifer that accounts for recovery scenarios that range between 25% and 75% of the porosity-adjusted aquifer volume.” given the statutory definition of ters and the statutory definition of total storage provided in chapter 36 §001(24) of the twc as “the total calculated volume of groundwater that an aquifer is capable of producing,” the twdb has developed a working definition of ters as a two-step calculation.   figure 1 exploring groundwater recoverability in texas:156 in the first step, the hydrologic properties and geometries of the aquifer (such as transmissivity, water levels, and storage coefficients) are established according to the relevant twdb groundwater availability model (where available). those values are then used to derive total storage (bradley 2016). the calculation differs among confined and unconfined aquifers and is provided by the twdb (bradley 2016) as: total unconfined storage = (1) area × (water level bottom) × sy total confined storage = (2) (area × (water level top) × st) + (area × (top bottom) × sy) where total unconfined storage is the storage volume of water released due to water draining from an unconfined setting (i.e., dewatering); area is the land surface area of the aquifer; water level is the depth of potentiometric head; bottom is the depth of the bottom of the aquifer; sy is the specific yield storage coefficient; total confined storage is the storage volume of water released due to the elastic properties of the aquifer, plus the volume of water released due to dewatering; top is the depth of the top of the aquifer; and st is the confined storativity storage coefficient. in the second step, the calculated total storage is multiplied by 25% and 75% to “account for recovery scenarios that range between 25% and 75% of the porosity-adjusted aquifer volume” (wade and shi 2014b., p. 4) and thereby arrive at final ters volumes. we are unaware of any rationale provided in the public record for why 25% and 75% were chosen to represent the limits of potentially recoverable groundwater in ters. we therefore assume these bounds are arbitrary reference points and that none of the potential physical and economic constraints and limitations associated with the recoverability of groundwater extraction are captured by ters. the total storage component of ters is the state’s closest approximation of groundwater availability, or “the maximum volume of raw water that could be withdrawn” (twdb 2016, p. 61), as it incorporates depth-to-water and spatially variable aquifer characteristics. thus, we compile total storage volumes (tables 1 and 2), published by the twdb as of april 2018 for the nine major aquifers of the state within each gma (figure 2). note that total storage data are not available for the hueco-mesilla bolsons aquifer and gma 5 because no gcds administer this area. the carrizo-wilcox aquifer and the gulf coast aquifer reported the largest total storage volumes at 5.227 and 4.163 billion acre-feet (respectively) and together constitute 81% of the sum total volume of water in storage for all nine major aquifers, calculated at 11.575 billion acrefeet. by contrast, the seymour, edwards (balcones fault zone), and edwards-trinity (plateau) aquifers reported the smallest total storage volumes at 5.128, 24.951, and 45.491 million acre-feet, respectively. the total storage volume for the ogallala aquifer is reported to be 380.544 million acre-feet, representing only 3% of the total volume of water in storage for all nine major aquifers. even at the 25% ters metric, the ters volume reported for the carrizo-wilcox aquifer alone (1.306 billion acre-feet) is far more than sufficient to satisfy the 2070 deficits projected by the 2017 state water plan (8.9 million acre-feet by 2070). the difference between these volumes could mean that, while the state is projecting water supply deficits, it is ignoring significant reserves of recoverable groundwater. we are not the first to acknowledge ters volumes in light of potential future deficits. a 2016 report by brady et al. (2016), addressed to the texas comptroller of public accounts, criticized the current groundwater management approach as reverse-engineered and politicized, resulting in a “regulation-induced [groundwater] shortage” (brady et al. 2016, p. 2). they recommended that the approach be revised in favor of more objective, economic constraints and presumably greater volumes of groundwater available for production. the report “assumes that prudent aquifer management would allow the ters in each gcd to be drawn down by 5% over a 50-year period—or .1% of ters annually” (brady et al. 2016, p. 9) and proposes that such a metric replace the mag from dfc volume regulations mandated by the current form of the twc. ters estimates report significant volumes of groundwater in storage that could potentially be available to meet the deficits projected by the state water plan. however, this critique disregards the apparently arbitrary recoverability constraints of ters (25% and 75% of total storage). simulating recoverability to test h1 and h2 and quantitatively evaluate the physical and economic impacts to groundwater recoverability associated with changes in depth-to-water, we develop a simplified, single-cell pumping simulation using numerical processors to generate mers. this is done through a linear convex optimization constrained by hydrogeology, pumping dynamics from given well specifications and pumping demand, and the given agricultural value of the water pumped over derived pumping costs. the mers model is applied to a variety of user inputs and hydrogeologic conditions but was conceptualized for a single well pumping for agricultural uses. texas water journal, volume 11, number 1 table 1. total storage and total estimated recoverable storage (25% and 75%) of the nine major aquifers of texas in gma 1-8. source: boghici et al. 2014, jones et al. 2013a., jones et al. 2013b., kohlrenken et al. 2013a., kohlrenken et al. 2013b., kohlrenken 2015, shi et al. 2014. twdb major aquifers aquifer (million acre-feet) groundwater management area (million acre-feet) 1 (kohlrenken 2015) 2 (kohlrenken et al. 2013a.) 3 (jones et al. 2013a.) 4 (boghici et al. 2014) 6 (kohlrenken et al. 2013b.) 7 (jones et al. 2013b.) 8 (shi et al. 2014) carrizo wilcox total storage 25% 75% 5,227.077 1,306.769 3,920.308 gulf coast total storage 25% 75% 4,163.507 1,040.877 3,122.630 trinity total storage 25% 75% 1,405.166 0.471 0.523 1,359.625 351.292 0.118 0.131 339.906 1,053.875 0.353 0.392 1,019.719 ogallala total storage 25% 75% 380.545 232.700 139.210 0.010 2.285 6.340 95.136 58.175 34.803 0.002 0.571 1.585 285.408 174.525 104.408 0.007 1.714 4.755 pecos valley total storage 25% 75% 323.860 2.000 309.000 1.490 11.370 80.965 0.500 77.250 0.373 2.843 242.895 1.500 231.750 1.118 8.528 edwards trinity (plateau) total storage 25% 75% 45.491 0.142 0.390 3.780 38.821 11.373 0.036 0.098 0.945 9.705 34.118 0.107 0.293 2.835 29.116 edwards (bfz) total storage 25% 75% 24.952 0.095 6.238 0.024 18.714 0.071 seymour total storage 25% 75% 5.128 0.001 0.057 5.070 0.001 1.282 0.000 0.014 1.268 0.000 3.846 0.001 0.043 3.803 0.000 gross storage 25% gross storage 75% gross storage 11,575.726 232.701 141.409 309.400 5.270 7.826 57.055 1,359.625 2,893.932 58.175 35.352 77.350 1.318 1.957 14.264 339.906 8,681.795 174.526 106.057 232.050 3.953 5.870 42.791 1,019.719 texas water journal, volume 11, number 1 maximum economically recoverable storage157 table 2. total storage and total estimated recoverable storage (25% and 75%) of the nine major aquifers of texas in gma 9-16. source: jigmund and wade 2013, jones and bradley 2013, jones et al. 2013c., wade and anaya 2014, wade and bradley 2013, wade et al. 2014, wade and shi 2014a., wade and shi 2014b. twdb major aquifers aquifer (million acre-feet) groundwater management area (million acre-feet) 9 (jones and bradley 2013) 10 (jones et al. 2013c.) 11 (wade and shi 2014a.) 12 (wade and shi 2014b.) 13 (wade and bradley 2013) 14 (wade et al. 2014) 15 (wade and anaya 2014) 16 (jigmund and wade 2013) carrizo wilcox total storage 25% 75% 5,227.077 2,061.633 1,019.320 1,951.720 19.804 69.900 104.700 1,306.769 515.408 254.830 487.930 4.951 17.475 26.175 3,920.308 1,546.225 764.490 1,463.790 14.853 52.425 78.525 gulf coast total storage 25% 75% 4,163.507 1.447 0.450 2.460 2,776.000 368.800 1,014.350 1,040.877 0.362 0.113 0.615 694.000 92.200 253.588 3,122.630 1.085 0.338 1.845 2,082.000 276.600 760.763 trinity total storage 25% 75% 1,405.166 5.280 23.057 0.500 11.100 4.705 351.292 1.320 5.764 0.125 2.775 1.176 1,053.875 3.960 17.293 0.375 8.325 3.529 ogallala total storage 25% 75% 380.545 95.136 285.408 pecos valley total storage 25% 75% 323.860 80.965 242.895 edwards trinity (plateau) total storage 25% 75% 45.491 2.358 11.373 0.590 34.118 1.769 edwards (bfz) total storage 25% 75% 24.952 0.261 22.878 1.718 6.238 0.065 5.719 0.430 18.714 0.196 17.158 1.289 seymour total storage 25% 75% 5.128 1.282 3.846 gross storage 25% gross storage 75% gross storage 11,575.726 7.899 45.935 2,063.580 1,030.870 1,960.603 2,795.804 438.700 1,119.050 2,893.932 1.975 11.484 515.895 257.718 490.151 698.951 109.675 279.763 8,681.795 5.924 34.451 1,547.685 773.153 1,470.453 2,096.853 329.025 839.288 texas water journal, volume 11, number 1 exploring groundwater recoverability in texas:158 texas water journal, volume 11, number 1 159maximum economically recoverable storage figure 2. map of the state’s 16 groundwater management areas (numbered) and nine major aquifers (colored). solid aquifer colors indicate outcrop areas (the part of an aquifer that lies at the land surface) and hatched aquifer colors indicate sub-crop areas (the part of an aquifer that lies or dips below other formations). gray areas indicate areas regulated by groundwater conservation and subsidence districts. gray outlines indicate texas counties. map generated by arcgis with data available from the twdb at: https://www.twdb.texas.gov/mapping/gisdata.asp.   figure 2 methods to test and develop the mers model we simulate hydrogeologic characteristics and approximate conditions in the central section of the carrizo-wilcox aquifer under confined and unconfined conditions. this area was selected in part because the carrizo-wilcox aquifer, with the largest total storage in the state, is in close proximity to development corridors and population centers, and in part because much of its water is stored at significant depths under confined conditions. similarly, hypothetical well characteristics (presumably available to stakeholders and managers applying these methods but estimated here) were derived from representative agricultural demand and approximated aquifer characteristics. carrizo-wilcox aquifer characteristics were estimated from the literature to represent a simplified version of the generalized conditions present in bastrop, burleson, caldwell, gonzales, guadalupe, lee, milam, and wilson counties located within gma 12 (four counties) and gma 13 (four counties). due to limitations in the scope of this study, we assume that the carrizo-wilcox aquifer is both homogenous and isotropic within the study area and this construction is characterized by https://www.twdb.texas.gov/mapping/gisdata.asp texas water journal, volume 11, number 1 exploring groundwater recoverability in texas:160 the above idealized and simplified hydrogeological properties (table 3). key assumptions the limitations of this mers analysis are akin to those applied to ters; no consideration is given to subsidence, surface water interaction, or water quality. these are all clearly important issues for groundwater managers and must be considered when adopting dfcs pursuant to chapter 36 §108(d) of the twc. we simulate agricultural uses because this economic sector generally returns the smallest monetized benefit per volumetric unit of water consumed. when compared to industrial or municipal/domestic uses, the volumes demanded are comparatively high and the economic value of the product (crops) is comparatively low (aylward et al. 2010; young and loomis 2014). we therefore assume agricultural users may be considered the most sensitive of all users to prospective changes in recoverability driven by increasing depth-to-water. additionally, we assume that agricultural users represent a substantial proportion of groundwater ownership under texas law (which links groundwater ownership to the area of owned overlying land and historical use—see edwards aquifer authority v. day-mcdaniel) and therefore those users have significant agency in dfc adoption. we also assume that agricultural daily water demand is constant, cannot be deferred during the growing season, and cannot be satisfied by alternative sources. we calculate constant daily demand as a function of the irrigated area and the requisite irrigation depth as follows: (3) where demand is in units of gallons per minute, irdepth is the target daily irrigation depth in units of inches (simulated here as 0.5 unless otherwise noted), irarea is the area to be irrigated in units of acres (simulated here as 100), 325,851 is the conversion constant from acre-feet to gallons, and t is the time of pumping in units of minutes (assumed here to be 1440 minutes, or one day, in all cases). reference agricultural harvest values in units of dollars per acre per year are assumed in this simulation to be inclusive of any relevant subsidies and net of all costs external to pumping (such as fertilizer, labor, machinery). reference harvest values are given by shaw (2005) as: alfalfa = $440, onions = $778, tomatoes = $1,018, grains = $1,153, and potatoes = $2,792. these values are likely overestimates of the actual net value of all costs unrelated to pumping, but such crop-specific data are difficult to obtain. thus, we assume that groundwater managers and agricultural users will input this key variable to the mers model with more precise values for local uses. well efficiency, or the energy loss of the well due to friction, is given as a user input to the model and held constant. as most modern pumps have an efficiency of between 50% and 85% (stringman 2013),depending upon the age of the system, the type of construction, accumulated well screen fouling, the type of power plant, and other factors, we hold operational well efficiency constant at 75% for all calculations. finally, we assume that where hypothetical depth-to-water in the confined setting falls below the depth of the top of the aquifer, the groundwater system fully transitions to the unconfined setting. in this way, the same demand-capacity constraints that are applied to the unconfined setting also apply to the confined setting but occur at greater depth. furthermore, the depth of the bottom of the aquifer in the confined setting is assumed to be the depth of the base of potable water, approximately 2,000 feet in our study area (dutton et al. 2003). aquifer and well performance here we use specific capacity to capture the hydrogeologic limitations to production at a given well. specific capacity has units of length squared per time but is frequently reported in units of volume per time per length of drawdown. for example, a specific capacity of 5 square feet per minute may be reporttable 3. hydrogeologic properties assumed for the study area simulation. property setting value source depth to aquifer bottom unconfined 350 feet (dutton et al. 2003) depth to aquifer bottom confined 2,000 feet depth to aquifer top confined 1,650 feet initial saturated thickness all 350 feet specific yield all 0.15 storativity confined 10(-3.52) (mace et al. 2000) hydraulic conductivity all 7 feet per day (dutton et al. 2003) texas water journal, volume 11, number 1 161maximum economically recoverable storage ed as 37.4 gallons per minute per foot of drawdown, where the conversion from one form to the other is accomplished by multiplying square feet per minute by the constant 7.48052 gallons per cubic foot. a relationship between specific capacity and pumping dynamics was developed from the theis (1935) non-equilibrium solution by theis (1963) and is presented in this form in mace et al. (2000): specific capacity = (4 × π × t ) ÷ [ln((2.25 × t × t) ÷ (r2 × s))] (4) where specific capacity is in units of length squared per time (such as feet squared per minute), t is the transmissivity of the aquifer in units of length squared per time (also equal to the product of hydraulic conductivity and saturated thickness), t is the time of pumping (one day or 1440 minutes), r is the well radius (simulated here as 1 foot to include the gravel pack), and s is the dimensionless storativity of the aquifer (sy in the unconfined setting and st in the confined setting). as we are interested in increasing depth-to-water over time (as might occur under dfcs), we iteratively calculate specific capacity by applying transmissivities that decrease as a function of declining saturated thickness (in single foot increments here) to simulate planned and potential changes in depth-to-water. a representative depth of the top of the well screen (the depth of the bottom of the aquifer minus the length of the well screen interval) is calculated for this mers simulation from demand and the well screen intake capacity. a representative well screen intake capacity is estimated from the maximum well entry velocity (assumed here at 0.1 feet per second) and the well screen open area (i.e. slot size) derived from grain size distribution of the carrizo-wilcox aquifer which is estimated from hydraulic conductivity using the hazen (1893) approximation. here we simulate the smallest well screen interval capable of supporting demand in order to minimize the well screen dead pool. we then iteratively calculate the maximum pumping rate supported by the hydrogeologic and well characteristics (at all possible depths-to-water) as a function of the specific capacity and the available saturated thickness as: maximum pumping rate = specific capacity × s_max (5) where maximum pumping rate is in units of volume per time (such as gallons per minute), specific capacity is in units of volume per time per unit of drawdown (such as gallons per minute per foot) as converted from equation 4, and s_max is the maximum possible drawdown given available saturated thickness, simulated here as the difference, in length, between the iterated depth-to-water and the top of the well screen. note that where maximum pumping rate values are significantly greater than demand the results may not be plausible with the given well screen (due to well entry velocity and other factors) and are provided for reference only. the maximum pumping rate declines with declining transmissivity and available s_max associated with hypothetical dewatering (decreasing saturated thickness) occurring in the unconfined or transitioned setting over time. to avoid pumping air, a certain amount of saturated thickness must be reserved from production to support the well screen interval dead pool and the pumping period drawdown (s, which is assumed here equivalent to s_max where the maximum pumping rate equals demand). thus, where the maximum pumping rate equals demand a binding constraint is applied to the mers model; beyond this depth-to-water, defined here as h_max, the aquifer and well can no longer satisfy demand (figure 3). while it is possible to pump beyond h_max (i.e., where the top of the well screen is exposed), the mers model does not allow such over pumping as we assume the introduction of air to the system has significant impacts to efficiency and may damage the well. the difference between the initial depthto-water and h_max is defined here as the production range (figure 3). within the production range, the aquifer and the well have the physical capacity to satisfy demand. similarly, we dub the saturated thickness required to support pumping period drawdown which is variable with pumping rate and well characteristics the pumping range (figure 3). importantly, the production range and pumping range vary significantly with demand. pumping costs pumping costs at the well head (or marginal extraction costs) are identified here as the hypothesized binding constraint for agricultural users in deep and confined settings. these are defined as the energy costs required to pump water to the surface at the given hydrogeologic, well and demand conditions. fixed costs are not considered in this study. water horsepower, or the amount of horsepower required to do the work of lifting the given output of water to the discharge point if the well was 100% efficient (fipps 2015), is defined as: water horsepower = (h × demand) ÷ 3960 (6) where h is the iterated hypothetical depth-to-water in feet and 3,960 is the conversion constant to horsepower. however, because no well is 100% efficient, the wire-to-water efficiency of the pumping system must adjust water horsepower to calculate the true horsepower applied to run the pump at the observed pumping rate. the pumping rate demand, as adjusted for well efficiency losses, is then directly relatable to dollar costs per unit of pumping time to meet the given demand volume by introducing an applicable power cost rate for the study area to calculate a pumping cost rate at depth-to-water as: texas water journal, volume 11, number 1 exploring groundwater recoverability in texas:162 figure 3. representation of the aquifer and well constraints associated with pumping applied to the simulation in order to generate demand-capacity constraints.   figure 3 pumping cost rate = (7) where pumping cost rate is in units of dollars per minute, 745.7 is the conversion constant from horsepower to watts, and power cost rate is the applicable power cost rate in dollars per watt-minute (assumed $0.07 per kilowatt-hour here). we can then simplify the pumping cost rate at depth-to-water and demand to dollars per gallon, a form we refer to here as recoverability: recoverability = pumping cost rate ÷ demand (8) pumping costs in the mers model is then expressed in dollars per pumping period as a function of demand and recoverability as: pumping costs = (demand × t) × recoverability (9) while we choose to express depth-to-water as all possibilities between the land surface and the aquifer bottom for this study, the range of h may be adjusted by the user to evaluate any relevant range of potential depth-to-water changes (such as existing or proposed dfcs). depth maximization given that most of the simplified relationships evaluated by this simulation are functionally linear, we modify an analytical solution (originally developed by domenico 1972) for linear optimization of groundwater yields to implement the limitations associated with an aquifer bottom and declines in transmissivity associated with increasing depth-to-water over time. we define value as the estimated daily dollar value of irrigation as: value = (harvest value × irarea) ÷ irrigation days (10) where harvest value is in units of dollars per area of agricultural production per year (such as dollars per acre per year, a common metric), irarea is the user defined area to be irrigated (100 acres simulated here), and irrigation days is the number of days in the annual growing season to be irrigated (simulated here as texas water journal, volume 11, number 1 163maximum economically recoverable storage 111 days per year = 37 growing season weeks per year multiplied by 3 irrigation days per week). with pumping costs and value determined we are able to generate a simple profit function in terms of dollars per irrigation day: profit = value pumping costs (11) because value is constant here and pumping costs increase linearly with increasing depth-to-water, profit falls linearly to zero where pumping costs are equivalent to value. beyond this point the irrigator is theoretically losing money if pumping continues and, if no other constraint is limiting, this constraint is binding on the mers model. this ensures a global solution to the optimization problem and creates an objective limit to economic recoverability. altogether, the mers simulation applies three key limitations as constraints upon recoverability: (1) saturated thickness screened by the well, (2) the saturated thickness necessary to accommodate drawdown at demand, and (3) the depth-to-water at which value is equivalent to pumping costs. the smallest depth-to-water value (i.e., the most constraining limitation) is then applied to derive the maximum recoverable depth-to-water. results shallow and unconfined storage (addressing h1) two factors limit physical yield capacity: (1) dewatering (increasing depth-to-water which reduces saturated thickness), and (2) variability in pumping rates. in effect, the well screen dead pool and the pumping range together serve to simulate an effective aquifer bottom and thereby introduce physical constraints on yields in the form of production capacity. as the saturated thickness of the aquifer decreases, the maximum pumping rate supported by the well and aquifer decreases non-linearly (figure 4). the dfc with the largest increase figure 4. relationship between maximum pumping rate, demand, and depth-to-water in the unconfined setting given input aquifer, well, and use parameters. the (solid blue) curve is the maximum pumping rate. the only horizontal line (dashed blue) is demand at the given irrigation rate. from left to right: the first vertical line (solid green) is the deepest depth-to-water based dfc found in the representative study area of the carrizo-wilcox aquifer (+65 feet), the second vertical line (solid red) represents h_max, the third vertical line (solid black) indicates the top of the well screen. note that where maximum pumping rate values are significantly greater than demand the results may not be plausible with the depicted well screen interval due to well entry velocity and other factors. simulation generated by matlab.   figure 4 0 50 100 150 200 250 300 350 depth-to-water: land surface to aquifer bottom [feet] 0 0.5 1 1.5 2 2.5 3 3.5 4 4.5 5 p um pi ng r at e [1 ,0 00 g al lo ns /m in ut e] demand-capacity constraints maximum pumping rate demand @ 0.5 in/acre irrigation dfc max (+65 feet) h-max @ demand top of well screen texas water journal, volume 11, number 1 exploring groundwater recoverability in texas:164 in depth-to-water within the simulated study area is 65 feet of drawdown over 50 years (in burleson and milam counties, gcd #71) and provided for reference. specific capacity, the first component of the maximum pumping rate, falls with declines in transmissivity (equation 3), which in turn falls with declining saturated thickness. similarly, the maximum distance between the initial depth-to-water and the top of the well screen (i.e., s_max), the second component of maximum pumping rate, falls linearly with declining saturated thickness. thus, at some depth-to-water, the transmissivity and available pumping range are insufficient to support the demanded pumping rate and resultant drawdown under pumping. here a binding constraint is applied to the model: beyond this depth (h_max) the aquifer and well do not have sufficient capacity to meet irrigation demand. the higher the pumping rate demanded is, the greater the drawdown under pumping and resultant pumping range are. naturally, where the pumping range increases, the production range decreases as additional saturated thickness is reserved from production to accommodate the increased drawdown. importantly, our results indicate that impacts to the pumping and production ranges are significant within the potential range of irrigation demand for various crops. here we simulate irrigation depths (which drive demand) from 0.25 inches per acre per day to 1.00 inch per acre per day to evaluate the changes in the pumping range (figure 5). when irrigation demand is 0.25 inches, h_max is over 250 feet (over 80% of the unscreened saturated thickness is physically recoverable); but when the irrigation demand is 1.00 inch, h_max is less than 150 feet (approximately 50% of the unscreened saturated thickness is physically recoverable). thus, smaller pumping rates may extract from greater depths than larger pumping rates before reaching the demand-capacity constraints of the well and aquifer. simulated pumping costs increase linearly with depth-to-water to a maximum of $33.41 per acre-foot at the aquifer botfigure 5. relationship between maximum pumping rate, varying demand, and depth-to-water in the unconfined setting given input aquifer, well, and use parameters. the (solid blue) curve is the maximum pumping rate. from left to right: the first vertical line (solid green) is the deepest depth-to-water based dfc found in the representative study area of the carrizo-wilcox aquifer (+65 feet), the four red vertical lines indicate h_max at irrigation demand of 1.00 inches per acre per day (solid), 0.75 inches (dashed), 0.50 inches (dash-dot), and 0.25 inches (dotted), and the fifth vertical line (solid black) indicates the top of the well screen (generated for demand at 0.5in/acre irrigation). simulation generated by matlab.   figure 5 0 50 100 150 200 250 300 350 depth-to-water: land surface to aquifer bottom [feet] 0 0.5 1 1.5 2 2.5 3 3.5 4 4.5 5 p um pi ng r at e [1 ,0 00 g al lo ns /m in ut e] demand-capacity constraints: variable demand maximum pumping rate dfc max (+65 feet) h-max @ 1.00 in/acre demand h-max @ 0.75 in/acre demand h-max @ 0.50 in/acre demand h-max @ 0.25 in/acre demand top of well screen texas water journal, volume 11, number 1 165maximum economically recoverable storage tom (a depth of 350 feet) while profit falls linearly with increasing depth-to-water. the harvest value point at which profit is equivalent to pumping costs at the depth of the bottom of the aquifer (350 feet) is found to be $154.51 per acre per year. at this harvest value, profit is $13.27 per acre-foot of groundwater pumped at the above h_max depth of 211 feet—less than 40% of the initial value. importantly, a $154.51 harvest value falls well below even the lowest reference harvest value considered here, which is alfalfa at the price of $440 per acre per year. this suggests that many or all harvest values may be sufficient to dewater the full production range before profit falls to zero in shallow and unconfined settings. thus, where irrigation demand is 0.50 inches per acre per day, the irrigated area is 100 acres, and the harvest value is $154.51 per acre per year, the binding mers constraint in the unconfined setting is the demand-capacity constraint (h_ max), simulated at a maximum depth of 211 feet or 71% of the unscreened saturated thickness (figure 6). the demand-capacity constraint (h_max) simulated here in the unconfined setting exceeds this maximum dfc depth by over 140 feet. these results confirm h1: simulated recoverability is constrained by demand-capacity limitations in shallow and unconfined settings for all irrigation demand rates and harvest values. however, the reference harvest values noted here are estimates and may not represent true agricultural values net of all costs beyond those explicitly considered here. moreover, pumping costs are not insignificant to agricultural users. determining what reduction in profit irrigators are willing to accept as pumping costs rise is another matter not considered here beyond the economically inefficient limit of profit = 0. deep and confined storage (addressing h2) the methods for calculating mers in the confined setting have several important distinctions from the methods used in figure 6. maximum economically recoverable storage where harvest value is $154.51 per acre per year and irrigation demand is 0.5 inches per acre per day in the unconfined setting. the (solid blue) diagonal line reflects the linear change in profit as pumping costs increase with depth-to-water. the only horizontal line (dashed blue) is profit at the binding demand-capacity constraint (h_max). from left to right: the first vertical line (solid green) is the deepest depth-to-water based dfc found in the representative study area of the carrizo-wilcox aquifer (+65 feet), the second vertical line (solid red) represents h_max (binding here), and the third vertical line (solid black) indicates the top of the well screen. simulation generated by matlab.   figure 6 50 100 150 200 250 300 350 depth-to-water: land surface to aquifer bottom [feet] 0 5 10 15 20 25 30 p ro fit [$ /a cr efo ot ] maximum economically recoverable storage unconfined setting profit @ $154.51 harvest value profit @ h-max dfc max (+65 feet) h-max @ 0.5 in/acre demand top of well screen texas water journal, volume 11, number 1 exploring groundwater recoverability in texas:166 the unconfined setting. in this construct of the carrizo-wilcox aquifer the simulated depth to the bottom of the aquifer is much deeper in the confined setting (2,000 feet) than the unconfined setting (350 feet). the depth to the top of the aquifer (1,650 feet) is introduced as a new variable to create a distinction between the pressurized storage of the aquifer and pore space storage. accordingly, the well screen and pumping range occur at significant depth (within the saturated thickness of the aquifer). thus, the demand-capacity constraint considered by the mers model is also at great depth (figure 7) and, while present, may not be binding in light of economic impacts. pumping cost impacts to recoverability within the production range are significant in deep and confined settings. pumping costs at the depth of the bottom of the aquifer (2,000 feet) reflect the increased depth and are found to be $190.90 per acre-foot, or roughly 5.71 times the $33.41 pumping costs at the aquifer bottom in the shallower, unconfined case (350 feet). similarly, the harvest value point where profit = 0 at the depth of the bottom of the aquifer (2,000 feet) is found to be $882.47 per acre per year; again, this is 5.71 times the comparable $154.51 harvest value above as changes in pumping costs are linear (5.71 is equivalent to the change in depth, 2,000 feet / 350 feet). where harvest value is $882.47 per acre per year, profit is $13.27 per acre-foot of groundwater pumped at the h_max depth of 1,860 feet—less than 7% of the initial value. agricultural users experience much greater changes in pumping costs over the full production range in the confined setting because the range of depths is greater, and those changes are sufficient to make a clear difference in recoverability among crop types (figure 8). for example, alfalfa harvest values are insufficient to allow positive profit long before depth-to-water reaches the top of the aquifer (and transitions it from the confined to the unconfined state), but tomato harvest values are sufficient to reach the demand-capacity constraint (figure 8). note that demand is constant at an irrigation rate of 0.5 inches per acre per day for all simulated harvest values shown here (figure 8), but higher value crops may require greater irrigation demand than lower value crops. additionally, simulated harvest values are likely overestimates of the actual net value of all costs unrelated to pumping (see key assumptions). figure 7. maximum economically recoverable storage where harvest value is $882.47 per acre per year and irrigation demand is 0.5 inches per acre per day in the confined setting. the (solid blue) diagonal line reflects the linear change in profit as pumping costs increase with depth-to-water. the only horizontal line (dashed blue) is profit at the binding demand-capacity constraint (h_max, binding here). from left to right: the first vertical line (dashed black) is the depth of the top of the aquifer, the second vertical line (solid red) represents h_max (binding here), and the third vertical line (solid black) indicates the top of the well screen. simulation generated by matlab.   figure 7 200 400 600 800 1000 1200 1400 1600 1800 2000 depth-to-water: land surface to aquifer bottom [feet] 0 20 40 60 80 100 120 140 160 180 p ro fit [$ /a cr efo ot ] maximum economically recoverable storage confined setting profit @ $882.47 harvest value profit @ h-max top of aquifer h-max @ 0.5 in/acre demand top of well screen texas water journal, volume 11, number 1 167maximum economically recoverable storage these results confirm h2, that simulated recoverability in deep and confined settings is constrained by economic limitations for some uses (harvest values) at all irrigation (demand) rates, restricting them to producing from pressurized storage. discussion whether texas is running out of groundwater or experiencing a regulation-induced shortage depends upon how one assesses groundwater availability. at the same time, there is no universal groundwater availability assessment method for the state as availability is a function of many, potentially conflicting management objectives. the methods developed here define mers as a simplified simulation of the physical and economic limitations to groundwater recoverability; key elements of availability common to all human groundwater demand absent from total storage and ters. our results indicate that recoverability is a function of use, aquifer characteristics, and well infrastructure. here we show the capacity of an aquifer to meet demand is a function of transmissivity where transmissivity declines with increasing depth-to-water. together with well screen limitations and figure 8. profit function over increasing depth-to-water in the confined setting for a range of reference and representative harvest values. the diagonal lines reflect the linear changes in profit as pumping cost increases with depth-to-water for given harvest values. from left to right: the first vertical line (dashed black) is the depth of the top of the aquifer, the second vertical line (solid red) represents h_max (where irrigation demand is 0.5 inches per acre), and the third vertical line (solid black) indicates the top of the well screen. simulation generated by matlab.   figure 8   200 400 600 800 1000 1200 1400 1600 1800 2000 depth-to-water: land surface to aquifer bottom [feet] 0 20 40 60 80 100 120 140 160 180 p ro fit [$ /a cr efo ot ] economic constraints: variable harvest value texas water journal, volume 11, number 1 exploring groundwater recoverability in texas:168 drawdown under pumping, a maximum depth-to-water with the capacity to satisfy the demanded pumping rate is established as a binding constraint. while simple in concept, these constraints are absent from many publications in the literature that assume a bottomless aquifer of infinite areal extent. this demand-capacity constraint is found to be binding in shallow and unconfined settings simulated here and exceeds maximum established dfcs for all agricultural uses. changes in pumping costs are shown to be significant to agricultural users and directly associated with changes in depth-to-water in both the confined and unconfined settings. indeed, while the capacity of deep and confined aquifers to meet demand is high, the costs associated with reaching the depth-to-water necessary to extract much of that storage may be economically prohibitive for some uses. in all cases, users are economically incentivized to minimize pumping costs (and thereby depth-to-water) irrespective of confined or unconfined setting. critically, our results further suggest that storage-based estimates that do not incorporate the physical and economic constraints of pumping (such as ters, at either percentile benchmark) may overestimate groundwater availability in deep and confined settings by orders of magnitude due to the change in storage coefficient assumed when an aquifer transitions from confined to unconfined state (equation 2). this manifests for uses where pumping from depth-to-water at or below the top of the confined aquifer is infeasible. for example, the local total storage volume for a 100-acre farm pumping in deep and confined settings, where the initial depth-to-water is 350 feet above land surface (artesian), would be 5,313.25 acre-feet (equation 2 and table 3). related ters volumes would be 3,984.93 acre-feet (at 75% of local total storage) and 1,328.31 acre-feet (at 25% of local total storage). however, if we apply the above conditions and assumptions to an alfalfa farm, we see that the mers model constrains the maximum recoverable depth-to-water to the depth where profit = 0 at approximately 1,000 feet (figure 8). we can then calculate the local mers volume by integrating this simulated depth-to-water recoverability limit with the relevant elements of the total storage calculation (equation 2). the mers model would thus estimate that only 42.69 acre-feet is recoverable for this use, about 0.8% of the local total storage or 1.1% and 3.2% of comparable ters estimates. thus, while the carrizo-wilcox aquifer stores 5.227 billion acre-feet of water, or 45% of the total 11.575 billion acre-feet stored by all major aquifers of the state (tables 1 and 2), the overwhelming majority of that storage may be unrecoverable, by these standards, for some uses and locations due to the change in depth necessary to transition the aquifer from the confined to unconfined state. importantly, while we choose to simulate agricultural uses operating in the central section of the carrizo-wilcox aquifer, the mers model may be applied to any aquifer and any use to estimate groundwater recoverability where demand and the economic value generated by pumped groundwater are known and effectively constant. moreover, the mers model is deliberately designed to be calculable with commonly held data (such as specific capacity) without the need for advanced computing and mathematics, perhaps increasing accessibility. we suggest that groundwater policymakers, managers, and producers consider including mers (or a similar metric) along with ters and the other considerations of chapter 36 §108(d) (3) of the twc, especially in jurisdictions operating under a depth-to-water based dfc. even a simple estimate of how groundwater recoverability changes with depth-to-water for variable uses, such as when certain pumping demands become infeasible for various crop or other use values, may prove useful. failure to account for demand-capacity constraints and the economic impact to pumping costs arising from prospective changes in depth-to-water may result in overestimates of groundwater availability. conclusion we conclude that texas groundwater managers, stakeholders, and policymakers assessing groundwater availability need an alternate approach for estimating recoverability. the current metrics employed by the state for estimating groundwater storage and recoverability, total storage and ters, are highly limited in scope and function. irrespective of the name, ters values do not scientifically account for many of the physical and none of the economic constraints upon groundwater recoverability, as noted by the twdb (bradley 2016). the system of equations described above, which constitute the mers model, represents one method for estimating the limits of groundwater recoverability that accounts for some of the physical and economic constraints upon yields. these constraints can be significant and may limit recoverability to as little as 1% of local storage (or 1.1% and 3.2% of comparable ters estimates) in deep and confined settings. this suggests that the majority of water stored in the carrizo-wilcox aquifer (45% of major aquifer storage in texas) may not be economically recoverable for some agricultural uses. conversely, recoverability of water stored in shallow and unconfined settings may be limited only by the capacity of the well and aquifer to meet demanded pumping rates. future studies expanding on these methods may refine drawdown estimates by replacing specific capacity estimates with drawdown solutions that account for partial well penetration, texas water journal, volume 11, number 1 169maximum economically recoverable storage though the analyses would become more complex. these or similar methods could also be integrated with the twdb groundwater availability model and groundwater database data to estimate local recoverability for any use and aquifer. ultimately, what is recoverable for a microchip manufacturer may not be the same as what is recoverable for a farmer, and what is recoverable for an alfalfa farmer may not be the same as what is recoverable for a tomato farmer. moreover, the limits to what is economically recoverable for any user are not economically efficient and pumping costs increase for all users in all cases where depth-to-water increases. nonetheless, quantifying planned and potential changes to groundwater recoverability using scientific methods with known assumptions, conditions, and infrastructure provides important information for texas policymakers and stakeholders looking to the future. acknowledgements the authors acknowledge funding for a graduate research assistantship to justin c. thompson from 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(2000) hazen (1893) fipps 2015 domenico 1972 chapter 36 §108(d)(3) of the twc bradley 2016 water management in the rio conchos basin: impacts on water deliveries under the 1944 treaty texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 13 number 1 | 2022 http://texaswaterjournal.org volume 13, number 1 2022 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on on the texas water journal as well as our policies and submission guidelines, please visit texaswaterjournal.org. as a 501(c)(3) nonprofit organization, the texas water journal needs your support to provide texas with an open-accessed, peer-reviewed publication that focuses on texas water. please consider donating. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. jude a. benavides, ph.d. the university of texas, rio grande valley gabriel b. collins, j.d. center for energy studies baker institute for public policy ken a. rainwater, ph.d. texas tech university rosario f. sanchez, ph.d. texas water resources institute michael h. young, ph.d. the university of texas at austin editor-in-chief todd h. votteler, ph.d. collaborative water resolution llc managing editor chantal cough-schulze texas water resources institute layout editor sarah l. richardson texas water resources institute editorial board kathy a. alexander, ph.d. texas commission on environmental quality cover photo: a view of the milky way over phoinix ranch in jim wells and live oak counties. ©2022 rey garza and jim quisenberry the texas water journal is indexed by scopus, google scholar, and the directory of open access journals. http://texaswaterjournal.org https://twri.tamu.edu/ http://texaswaterjournal.org https://twj-ojs-tdl.tdl.org/twj/support http://texaswaterjournal.org http://texaswaterjournal.org https://www.scopus.com/home.uri https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://scholar.google.com/scholar?hl=en&as_sdt=0%2c44&q=source:%22texas+water+journal%22&btng= https://doaj.org/toc/2160-5319 https://doaj.org/apply/seal/ texas water resources institute texas water journal volume 13, number 1, november 22, 2022 pages 47-63 water management in the rio conchos basin: impacts on water deliveries under the 1944 treaty abstract: the unusual drought that struck the rio grande basin between mexico and texas in 1993 marked a new order in the relationship and commitments to water deliveries from both countries in the 1944 treaty between the united states of america and mexico for the utilization of waters of the colorado and tijuana rivers and of the rio grande. as a result, mexico did not comply with the volume of deliveries required in the 1992–1997 cycle. since then, mexican deliveries have shared a climate of tension with the united states, blamed partly on mexico’s unpredictability of its obligations. this tendency is gaining academic interest from the perspective of the treaty and the binational relationship. however, the evidence on mexico’s inability to meet its binational commitments is still scarce. hence, this article explores the management of the rio conchos, mexico’s most significant tributary, to meet its obligations under the 1944 treaty; the role of stakeholders involved; the competition among water uses and possible conflict scenarios and potential solutions; and the impacts on water deliveries from mexico to the united states. this paper uses the multi-level governance and sub-national hydropolitics concepts and the partial results of an investigation on the internal factors in the basin that affect water deliveries to the united states. keywords: water management, multi-level governance, sub-national hydropolitics, 1944 water treaty, rio conchos watershed 1 graduate of the master’s program in integral water management, el colegio de la frontera norte, monterrey, mexico 2 professor-researcher, department of urban and environmental studies. el colegio de la frontera norte, monterrey, mexico * corresponding authors: rodrigoisraelgv93@gmail.com and jlcastro@colef.mx received 18 december 2021, accepted 7 june 2022, published online 22 november 2022. citation: gonzález-velázquez ri, castro-ruiz jl. 2022. water management in the rio conchos basin: impacts on water deliveries under the 1944 treaty. texas water journal. 13(1):47-63. available from: https://doi.org/10.21423/twj.v13i1.7139. © 2022 rodrigo israel gonzález-velázquez and jose luis castro-ruiz. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. texas water journal, volume 13, number 1 rodrigo israel gonzález-velázquez*1 and jose luis castro-ruiz*2 mailto:rodrigoisraelgv93%40gmail.com?subject= mailto:jlcastro%40colef.mx?subject= https://doi.org/10.21423/twj.v13i1.7139 https://creativecommons.org/licenses/by/4.0/ https://journals.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 13, number 1 water management in the rio conchos basin:48 terms used in paper acronym/initialism descriptive name af acre-feet aurech irrigation users association of the state of chihuahua cc consejo de cuenca (basin council) ccrb consejo de cuenca rio bravo (rio bravo basin council) cila comisión internacional de límites y aguas entre méxico y estados unidos (international boundary and water commission [mexico]) conagua comisión nacional del agua (national water commission [mexico]) gech government of the state of chihuahua git grupo interinstitucional de trabajo gm government of mexico ha hectare har hydrological-administrative region ibwc international boundary and water commission (u.s.) id irrigation district inegi national institute of geography and statistics (mexico) iwt 1944 treaty between the united states of america and mexico for the utilization of waters of the colorado and tijuana rivers and of the rio grande km2 square kilometer lan law of national waters (mexico) maf million acre-feet mcm million cubic meters mi2 square mile mlg multi-level governance jcas central board of water and sanitation of the state of chihuahua jmas municipal water and sanitation boards in the municipalities of chihuahua nadb north american development bank ocrb rio bravo basin organization (mexico) oecd organisation for economic cooperation and development pnh national water program (mexico) po participant observation sader secretariat of agriculture and rural development (mexico) snh sub-national hydropolitics t ton texas water journal, volume 13, number 1 49impacts on water deliveries under the 1944 treaty introduction since the signing of the treaty of guadalupe hidalgo in 1848, the large surface water systems shared by mexico and the united states have been an essential part of their historical relationship. the 1944 treaty between the united states of america and mexico for the utilization of waters of the colorado and tijuana rivers and of the rio grande (iwt) signed by both countries in 1944 continues to be considered an extraordinary achievement for multiple reasons. first, despite pressure from the u.s. border states, its ratification allowed both countries to settle their differences in using these resources. second, it displayed a complexity beyond most treaties through its differential multi-basin application –colorado, grande, and tijuana basins. third, iwt is recognized a s one of the few international agreements with negotiation from equal power between the signatory countries (mumme 2019). the rio conchos is mexico’s most important water source to fulfill its obligations to deliver water to the rio grande under the iwt. at present, this river by itself contributes almost 49% of the volumes corresponding to mexico (cila 2019; table 1). it also has a central role within the mexican national context. it is one of the most important systems in its northern states and is the primary water source for chihuahua to support its urban and economic development. the unusual drought that affected the mexico/texas section of the rio grande basin in the 1990s, and its effects on mexico’s water deliveries in the corresponding cycle, led to two significant changes. first, it broke the balance and existing order regarding delivery commitments under the iwt. though mexico continued to fulfill its obligations, the difficulties in delivering the accorded volume of 1.75 million acre-feet (maf; 2,158.6 million cubic meters [mcm]) in subsequent 5-year cycles began to become evident, calling for more attention to the terms of the iwt and generating tensions between the two governments (mumme 1999; ingram 2004; carter et al. 2017). secondly, said event renewed the academic and other sectors’ attention in the rio conchos, its international and regional relevance, the problems related to its economic and urban development, and the impacts of climate change (kelly 2001; kim et al. 2002; vargas 2007; barrios et al. 2009; conagua 2011; git 2013; stewart et al. 2014; martínez-austria 2017; monteromartínez et al. 2018). this paper contributes to the previous knowledge on the rio conchos and its basin, in the context of its national importance and the impacts that its conditions and water management trends have on water deliveries by mexico to the international rio grande/rio bravo basin. we examine the current features of the watershed, the water management forms and actors involved, the competition for water and potential scenarios of internal conflict, the ways in which conflicts were resolved, and the impacts on deliveries from mexico. this paper utilizes the multi-level governance (mlg) approach through the typology created by hooghe and marks (2002, 2003) and the recently developed concept of sub-national hydropolitics (snh; moore 2018). methods the methodology followed in the analysis combined the participant observation (po) approach with documentary research and unstructured interviews. po was done during a stay at the headquarters of the comisión internacional de límites y aguas entre méxico y estados unidos (cila), the mexican section of the international boundary and water commission (ibwc) in ciudad juárez, mexico. the unstructured interviews were done with key actors in the rio conchos basin—cila-ibwc, comisión nacional del agua (conagua) officials, irrigation district stakeholders, and state and local water agencies—and focused on their views on different issues and ways to improve cooperation and coordination. participant observation po makes it easy to collect valuable information, in a more direct way (face to face). furthermore, the aim is to avoid any distortion when applying experimental and measurement table 1. mexican tributaries of the rio grande under the 1944 water treaty. tributary confluence with rio grande proportion of total delivery rio conchos ojinaga, chihuahua 49% san diego river jimenez, coahuila 51% san rodrigo river piedras negras, coahuila escondido river piedras negras, coahuila salado river falcon dam, tamaulipas las vacas creek ciudad acuña, coahuila source: gonzález-velázquez 2020 texas water journal, volume 13, number 1 water management in the rio conchos basin:50 we addressed these questions to key actors such as officials of cila, the rio bravo basin organization (ocrb), ccrb, members of the irrigation districts in the rio conchos basin, and officials of operating agencies in the state of chihuahua. in total, we conducted 18 interviews. interviewees were selected using the snowball methodology by interviewing an actor with a recommendation from a previous actor. this methodology allowed us to find the key actors most involved in the problem analyzed. the objective of the interviews was to have the specialized opinion of key actors regarding the necessary measures to improve cooperation and coordination between the actors at different participating levels and thereby make effective deliveries of water to the united states. another objective was to identify the possible factors that hinder deliveries and generate conflict. the rio conchos watershed the rio conchos is one of the most important systems of hydrological region 024 (rh-024) rio bravo-conchos, comprising the northern states of chihuahua, tamaulipas, durango, coahuila, and nuevo león3. the rio conchos basin is located in the southwestern part of chihuahua. it has an area 3 thirty-seven hydrological regions represent the natural boundaries of the main river basins in mexico. the bravo-conchos region is the largest, comprising about 12 % of the national territory (conagua 2020a). instruments that do not collect data beyond their design. we therefore observed, recorded, processed, and systematically interpreted the data (sánchez serrano 2001). the data collection took place during a stay at cila’s headquarters in ciudad juárez. in addition, po was also carried out in the assemblies and meetings of the rio bravo basin council (ccrb) users to document how cooperation, interactions, conflict, allocation, and decision-making occur in and between the different levels of government. documentary research this stage dealt with identifying, gathering, and consulting related references and other materials to extract and collect the relevant and necessary information to frame the research problem (hernández sampieri et al. 2010). the analysis sought to pinpoint the actions, decisions, and events that generated cooperation, conflict, and water allocation at the different levels of government participating in the basin in the study period. unstructured interview interviews are a specific form of social interaction to collect data for an investigation. their design includes questions directed at actors capable of providing data of interest for the research. the unstructured interview offers a relatively large margin of freedom to formulate questions and answers with a certain degree of spontaneity (nel quezada 2010). figure 1. rio conchos basin. authors’ depiction based on sig-bravo n.d. texas water journal, volume 13, number 1 51impacts on water deliveries under the 1944 treaty of 28,707 mi2 (74,351 km2), representing 13.6% of the rio grande basin and around 30% of the state’s surface (figure 1). its area includes 41 municipalities in chihuahua and two in durango. surface hydrology includes several tributaries that feed the rio conchos along its route, from its source in the western sierra madre to the point of confluence with the rio grande. the main tributaries are the florido, san pedro, and chuvicar rivers (figure 1). their contribution allows the rio conchos to maintain a perennial runoff during most of the year. as for groundwater, 17 aquifers supply the basin, 14 of which belong to chihuahua, contributing around 20% of the groundwater extracted in the state (conagua 2021c). of this volume, the chihuahua-sacramento, meoqui-delicias, jiménez-camargo, and aldama-san diego aquifers stand out, which alone account for just over 70% of the total groundwater extraction (conagua 2021c). the water infrastructure includes 10 dams that serve the different uses of the basin, with three of them—la boquilla, luis l. león/el granero, and francisco i. madero/las vírgenes—concentrating 90% of the total capacity. they provide water to the irrigation districts (ids) of the basin and the pico del aguila dam. the water available to the different users in the basin is assigned annually by conagua, the mexican federal agency in charge of water management in the national territory through concessions4. water availability accounts from a 4 given the public nature of water resources in mexico, conagua manages their extraction and use through concessions or franchising to public and private entities (conagua 2021a, 2021b). combination of surface and underground sources. in 2020, the total water assigned to the state of chihuahua was 4.35 maf (5,411 mcm). the agricultural sector was the largest consumer of water, receiving just over 89% of the total allocated volumes. in comparison, public supply to cities and urban localities accounted for 9% of federal allocations (table 2). an important feature noted is the higher proportion of water coming from underground sources. this situation is even more acute in the case of cities with groundwater assigned for consumption reaching 89%. there are four ids in the basin, which stretches 100,458 hectares (ha), which alone account for 60% of the total surface water assigned for agricultural use in the state (table 3). among these, id 005 delicias stands out in the middle part of the basin, the largest and most important in the state, representing 90% of the south-central economy, with an approximate production according to farmers and federal legislators in the area of 7 billion pesos annually (gonzález-velázquez 2020). in addition, this id also receives groundwater from the meoqui-delicias aquifer. in 2020, the basin had just over 1.6 million inhabitants, corresponding to just under half of the state’s population. this amount includes seven of the most important cities of the entity—camargo, chihuahua, delicias, hidalgo del parral, jiménez, pedro meoqui, and ojinaga—which alone concentrated 91.4% of the urban population in that year (inegi 2020). table 2. water concessions by user in chihuahua, 2020. user surface water (acre-feet [af]) % underground water (af) % total water conceded (af) agriculture 1,576,719 40.5 2,311,854 59.5 3,888,573 public supply 42,900 10.8 355,574 89.2 398,474 industry and thermoelectric generation 5,204 11.3 63,029 88.7 68,233 all users total 1,624,823 37.3 2,730,457 62.7 4,355,280 source: conagua 2020b table 3. rio conchos watershed irrigation districts in agricultural year 2018-2019. irrigation district total surface (hectares) total water volume (acre-feet) surface water (%) underground water (%) related dam related river bajo rio conchos 8,080 66,151 100 luis l. leon rio conchos delicias 73,002 788,686 94.5 5.5 francisco i. madero san pedro river alto rio conchos 11,184 64,018 100 la boquilla rio conchos rio florido 8,192 80,160 100 pico de aguila florido river all irrigation districts 100,458 999,015 95.6 4.4 source: conagua 2019 texas water journal, volume 13, number 1 water management in the rio conchos basin:52 water stressors the world resources institute classifies mexico as a country with high water stress due to its climatic variability and competition for water in different regions throughout its territory (gassert et al. 2013). in particular, the rio conchos basin is classified as a region with high pressure on its water resources due to an increased allocation of available renewable water (75%; conagua 2018)5. there are currently three significant factors that affect water availability in the basin: the growth of cities and economic activities, the intense use of water in the agricultural sector, and the effects of recurrent droughts in the region (gonzález-velázquez 2020). urban growth the population of chihuahua presents two particular characteristics in its distribution: a high dispersion of small towns throughout its territory and a growing urban concentration in some municipalities. more than 12,000 rural communities in the state account for more than half a million inhabitants. on the other hand, 19 urban localities concentrate 83% of the state population (inegi 2020). among these are the most significant urban centers in the rio conchos basin, which alone account for 44% of the urban population of chihuahua (table 4). in 2040, the state is projected to reach a population of 4.45 million inhabitants (gech 2019a), which will continue fueling the urbanization process of the basin. although the volume 5 conagua defines the degree of high pressure as a percentage of water allocation between 40-100% of the total renewable water available (conagua 2018). of water assigned for urban public use represents only 9% of the total allocated to the state by conagua, 89% comes from underground sources (conagua 2020b), increasingly pressing the availability of the resource for this sector due to the overexploitation of the aquifers that feed it and the deterioration of water quality. searching for solutions to this problem, the government of chihuahua is considering exchanging groundwater for surface water through negotiations with the users of the ids, which implies infrastructure works and operating costs for the extraction of the necessary volumes of water (gech 2019a). agricultural consumption the agricultural sector’s intensive use of available water is another factor contributing to the water-stressed conditions in the rio conchos basin. in mexico, 12% of agricultural production units have irrigation systems. most of the rest (around 78%) is seasonal agriculture, where water use is more intensive, inefficient, and vulnerable to climate change (earthgonomic 2017)6. these conditions are present in the rio conchos basin, where 57% of the harvested area is rain-fed. chihuahua has the highest national production and economic value of 12 crops, including walnuts and green alfalfa, for which water consumption is comparatively high (gech 2019b)7. these are the fastest-growing crops in the last 10 years, representing 60% of state production in 2020 (table 5). the rio conchos basin 6 according to conagua, the agricultural sector in mexico wastes 57% of water due to obsolete and inefficient irrigation structures (maguey 2018). 7 the water footprint for vegetables and fruits is 322 and 962 liters/kg, respectively (mekonnen and hoestra 2010). the values are 9,000 and 1,000 liters/kg for nuts and alfalfa. table 4. rio conchos basin urban population in largest municipalities (2020). municipality total population urban population percent urban change in urban population 1990–2020 (%) camargo 49,499 42,019 84.9 13.7 chihuahua 937,674 925,762 98.7 79.4 cuauhtémoc 180,638 145,782 80.7 81.0 delicias 150,506 140,157 93.1 55.7 hidalgo del parral 116,662 113,843 97.6 29.1 jiménez 40,859 35,087 85.9 29.1 meoqui 44,853 32,979 73.5 43.7 totals 1,570,871 1,453,039 92.5 68.2 state of chihuahua 3,741,869 3,274,046 87.5 99.5 percent of chihuahua population overall 42.0 44.4 sources: inegi, population censuses 1990–2020 texas water journal, volume 13, number 1 53impacts on water deliveries under the 1944 treaty municipalities are the leading producers of these crops, representing 74% (walnuts) and 68% (green alfalfa) of the harvested area, respectively, and participating with 77% and 70% of the total output in 2020. the above conditions have a significant impact on the available water resources in the basin. six aquifers are currently over-exploited, including the four most important due to competition and over-concession from the agricultural and urban sectors: chihuahua-sacramento, meoqui-delicias, jiménez-camargo, and parral-valle del verano (gonzález-velázquez 2020). the dependence of most irrigation units on rainwater places additional pressure on the water available in the basin dams. federal allocations to the agricultural sector in dry seasons are therefore affected to ensure the volumes committed under the iwt. the overexploitation of aquifers also deteriorates the quality of water available to urban centers, forcing the water utilities to seek the possibility of exchanging surface water for groundwater (montero-martinez and ibanez-hernandez 2017). drought conditions chihuahua is one of the mexican states historically affected by recurrent droughts due to its geographic location in one of the most important desert strips in the world (gech 2019a). the effects of drought conditions are more pronounced for the rio conchos basin due to the dependence of large extensions of rain-fed agriculture on the available dams, the management of table 5. chihuahua main agricultural products, 2010–2020. crop 2010 2020 change 2010–2020 (%) harvested area (hectares [ha]) yield (tons [t]) harvested area (ha) yield (t) harvested area (ha) yield (t) alfalfa 74,020.37 4,934,021.70 90,181.50 8,146,513.05 21.8 65.1 cotton 63,696.43 254,114.02 99,510.44 501,663.14 56.2 97.4 oat 272,273.00 3,139,480.10 156,892.50 1,487,609.90 -42.4 -52.6 green chile 25,347.07 545,828.10 30,092.00 722,936.90 18.7 32.4 bean 152,546.78 126,479.35 37,607.00 32,803.49 -75.3 -74.1 corn 293,689.83 1,981,620.93 183,107.50 1,997,966.23 -37.7 0.8 apple 23,079.00 398,155.26 31,785.37 594,710.82 37.7 49.4 nut 39,420.64 39,764.97 64,993.23 102,061.00 64.9 156.7 sorgo 36,989.37 388,787.31 6,355.00 110,132.36 -82.8 -71.7 wheat 53,479.10 261,490.04 12,360.00 63,656.95 -76.9 -75.7 totals 1,034,541.59 12,069,741.78 712,884.54 13,760,053.84 -31.1 14.0 alfalfa + nut 113,441.01 4,973,786.67 155,174.73 8,248,574.05 36.8 65.8 alfalfa + nut as % of totals 11.0 41.2 21.8 59.9 sources: gm n.d. which must consider the volumes committed by the rio conchos as part of the iwt. since the middle of the last century, some records of these conditions show a continuity of drought events in the three large basin sections, defined based on their duration and the accumulated deficit volumes (ortega-gaucin 2013). the period of exceptional drought that struck the entire basin during the 1990s stands out in these analyses. its effects lasted for 14 years, from 1992 to 2005, reducing to 64% the availability of irrigation water for the ids of the rio conchos basin and forcing agricultural users to decrease the annual cultivated area by 61% (ortega-gaucin 2013). its impacts also affected mexico’s water deliveries to the rio grande, when cycle 25 (1992–1997) finished with a deficit of 58% of the commitment of 1.75 maf (2,158.6 mcm) established in the iwt, taking two cycles more before it was settled (table 6). in the last 10 years, another critical drought was registered again in the basin, particularly affecting the area of id 005 (delicias). as a result, mexico ended up with deficits in its deliveries in the two corresponding cycles (34 and 35). finally, it paid the remaining debt at the end of cycle 35 through the signing of minute 325 (ibwc 2020a), by which mexico transferred 0.10 maf (139 mcm) from its ownership at amistad and falcon international reservoirs on the rio grande (minute 234)8. 8 minute 234 determines that any deficiency in a five-year cycle shall be made up by mexico in the following cycle, including, among other options, the transfer of water in storage in the international reservoirs (ibwc 1969). texas water journal, volume 13, number 1 water management in the rio conchos basin:54 water management in the basin water management in a basin such as the rio conchos basin has local, regional, national, and international characteristics. human processes that influence decision-making add to the physical, geographical, and environmental contexts. additionally, a diversity of actors participates in the operational management of water, from public authorities and institutions to private groups, communities, and individuals, giving rise to rules and conflicting interests that interact at all levels (finger et al. 2005). in this section, we examine the water management structure in the rio conchos basin using the mlg approach. the origin of this approach goes back to the emergence of the european union in the 1990s and the analysis of the decentralized decision-making processes (hooge and marks 2002, 2003; saito-jensen 2015). an expanded version of mlg has gained the attention of academics and decision-makers worldwide, referring to governance systems with a vertical and horizontal dispersion of authority in different directions between the various levels of government involved and across other realms, including states, markets, and civil society (daniell and kay 2017). the organisation for economic cooperation and development (oecd) identifies central government ministries or agencies at the horizontal top-level in conceptualizing mlg. it analyzes the relationships between local, regional, state, national, and supranational levels in the vertical dimension and sub-national actors in the lower plane sphere (oecd 2011). hooghe and marks (2002, 2003) analyze the intellectual views sharing the idea that dispersion of governance across multiple jurisdictions is more efficient and flexible than concentration in a single jurisdiction. they identify two coherent governance structures that coexist, designated as type i and type ii. type i jurisdictions comprise a limited number of levels (international, national, regional, meso, local); have general purposes (involve multiple roles and responsibilities); have boundaries that do not intersect; are stable for periods of several decades or more; and have flexible jurisdiction across different jurisdictional levels. type ii jurisdictions are different in that they are specialized and fragmented; their functions are specific (particular services, monitoring) and include territories that intersect; their number is potentially vast; they are thin and flexible; and they come and go as a function of changes in governance. more recent research emphasized the role of type ii actors as key in resolving trans-jurisdictional problems and building bridges to improve social cooperation and conflict resolution (mumme et al. 2012). in our case, we table 6. water delivery cycles to the united states in the rio grande. cycle period duration (years) debt (million acre-feet [maf]) delivered (maf) difference (maf)1/3 mexican tributaries minute 234 total 1-3 10/1/53–9/30/68 15 provisions of article 4 of the iwt were considered satisfied to september 30, 1968 (minute 234) 4-15 10/1/68–6/1/82 13.7 the conservation capacities assigned to the united states were filled before the end of the cycle (iwt, article 4) 16 6/2/82–6/1/87 5 1.75 1.52 0 1.52 0.23 17 6/2/87–6/23/87 0.06 0.021 0.075 0 0.075 0.054 18-24 6/24/87–9/26/92 5.3 the conservation capacities assigned to the united states were filled before the end of the cycle (iwt, article 4) 25 10/1/92–9/30/97 5 1.75 0.73 0 0.73 -1.02 26 10/1/97–9/30/02 5 1.75 0.58 0.87 1.45 -0.3 27 1/10/02–9/30/07 5 1.75 1.25 1.83 3.08 1.33 28-33 10/1/07–10/24/10 3.1 the conservation capacities assigned to the united states were filled before the end of the cycle (iwt, article 4) 34 10/25/10–10/24/15 5 1.75 1.49 0 1.49 -0.26 35 10/25/15–10/24/20 5 1.75 1.65* 0.10 1.75 color description: blue the terms of the 1944 water treaty were met before or at the end of the cycles; orange cycles with a deficit at the end; green previous cycle debt was paid off; red two successive cycles with deficit. *included 0.06 maf through minute 325 sources: cila 2019; ibwc 2020b. texas water journal, volume 13, number 1 55impacts on water deliveries under the 1944 treaty table 7. rio conchos watershed type i actors. name authority/age jurisdiction/ boundaries functions planning/reporting national water commission (conagua) federal government (31 years) national through 13 basin organizations and 26 basin councils; regional through ocrb* and ccrb** • grant permits for water extraction and waist waters discharge • formulate the national water program • collect and audit water-related contributions • issue standards in hydraulic matters • monitor compliance and application of the law (law of national waters [lan]) • national water program (pnh) 2019– 2024 • indicators and targets of the pnh • annual reports on accomplishments • annual report on water statistics in mexico • regional and sectorial reports secretariat of agriculture and rural development (sader) federal government (103 years) national, with state representatives • formulate, conduct, and evaluate the general rural development policy • organize and promote agricultural, livestock, poultry, beekeeping, and forestry research • prepare, update, and disseminate a bank of projects and investment opportunities in the rural sector • rural development program • agriculture promotion program • wellbeing program central board of water and sanitation of the state of chihuahua (jcas) state government (77 years) state • water planning in the state, with its proper coordination at the federal level • coordination, between the state and the municipalities, of actions related to the exploitation of water and treatment and reuse of wastewater. state of chihuahua water plan 2040 irrigation users association of the state of chihuahua (aurech) civil society/users (founded in the 1990s) state • administration of the volumes granted by conagua • coordination of irrigation associations’ activities • administration of resources for infrastructure development and maintenance the self-management carried out by the associations has allowed them to improve the efficiency of their irrigation district and thereby generate volume savings there are restoration projects in the upper area of the basin and pollution control in the main channels of the rio conchos municipal water and sanitation boards in the municipalities of chihuahua (jmas) municipal government municipal (local) • responsible for the drinking water, sewerage, and wastewater sanitation services in the different municipalities • in charge of public works related to these services planning actions and programs are primarily short-term and usually depend on resources from conagua, jcas, or binational support through nadb’s infrastructure programs source: gonzález-velázquez 2020 *ocrb: organismo de cuenca del rio bravo **consejo de cuenca del rio bravo texas water journal, volume 13, number 1 water management in the rio conchos basin:56 adapt the hooge and marks (2002, 2003) typology to facilitate the analysis (castro-ruiz and cortez-lara 2020) by including type of authority (multi-functional or specialized); nature/level (national, state, local); trajectory/temporary durability; functions; and definition of jurisdictional territories (table 7). water governance structure table 7 depicts a governance structure very similar to other regions in the mexican territory, with jurisdictions belonging to type i, well-defined boundaries, multi-functional features, and stable temporal trajectories. conagua is the core actor within mexico’s centralized water management model (sánchez meza 2006). it has a long historical role beyond its creation in 1989 as the sole federal agency to manage mexico’s water and coordinate investment programs with other federal, state, and local agencies. its characteristics are similar to other north american type i jurisdictions in terms of its stability over time, geographic coverage, and multi-functionality. however, conagua concentrates more responsibilities due to its authority in mexico’s water policy, including the formulation and implementation of the government’s national water program. it carries out its duties through 13 basin organizations all over the mexican territory, assisted by 26 basin councils9. another actor at the federal level is the ministry of agriculture and rural development. it deals with the planning of agricultural production in the ids of the state. at the state level, the central board of water and sanitation of chihuahua (jcas), created in 1942, has multiple functions, basically related to its role as a liaison body with the federal government in planning activities and coordination between the state government and the municipalities. in this capacity, jcas was responsible for formulating and implementing the water plan of the state of chihuahua 2040. next are the local water and sanitation boards, which act as operating agencies and providers of services at the local level, with service areas clearly defined by the municipal divisions. finally, the association of irrigation users of the state of chihuahua is a civil society but multi-functional organization, with well-defined state coverage and history going back to the 1990s when the federal government initiated the transfer of the operation and maintenance of ids to the agricultural users in the country10. in theory, despite the absence of type ii actors, the structure described in table 7 presumes the existence of a systemic and 9 the basin councils are advising bodies instituted by the lan of 1992 to promote user involvement in each basin organizations’ regions (collado 2008). 10 with the transfer process, conagua's responsibilities were to ensure the self-sufficiency of the transferred districts and the completion of the planned investments. other functions were to provide guidance and technical support to user organizations and supervise and monitor the proper use of the water granted (trava-manzanilla 1995). cooperative relationship between the actors regarding water management in the basin. however, in practice, conagua maintains de facto central authority in decision-making related to the administration and planning of water resources, notwithstanding the changes undergone in the law of national waters (lan) of 1992 and its modifications in 2004 towards decentralizing its functions in search of better governance conditions. conagua is the sole agency to allocate water to the different user sectors, based on the concessions in each case and the provision and enforcement of the guidelines concerning water quality and quantity. it also leads the development of water availability studies and is responsible for the public registry of water rights (collado 2008). the state and local authorities that participate depend mostly on conagua’s financial and regulatory support to operate, with little room for their participation in the decision-making process. civil society involvement in water management occurs in the irrigation users association of the state of chihuahua (aurech), which has operational autonomy but depends on conagua for its annual water concessions and monitoring of its activities and projects. all sector users rely on ccrb, the regional consultation body, to participate in the decision-making process concerning the basin. in theory, all those sector users interact with authorities and conagua’s representatives, bringing their daily problems and proposals to try to solve them. ccrb is one of the consejos de cuenca (ccs), or basin councils, with more improvements in its functionality despite the size of its jurisdiction. still, ccrb faces different challenges that hinder its governance objectives. among them are a low capability at the local levels to interpret and observe the legal framework that sustains the existence of the ccs; the absence of coordination with other governmental actors; financial limitations; a lack of incentives to support the water users’ involvement; and in general, limited operative autonomy (sosa-rodriguez and castro-ruiz 2020)11. in addition, both conagua and its local and state counterparts have to deal with the discontinuity of programs and policy actions resulting from constant political-administrative changes. water competition and conflicts the study of conflict and cooperation in shared international rivers has gained interest in recent decades, given urban growth and the effects of climate change. this research focused on the conflict conditions experienced by riparian nations and the search for cooperation and agreements to manage the resource (wolf 1998; elhance 1999). some authors also recognized the existence of internal water management problems as the cause 11 some authors noted a decentralization trend in the federal water institutions during the 1980s toward other instances at different levels. for example, the transfer of responsibilities on the urban water services to the municipal governments in 1983 was part of this course (collado 2008). texas water journal, volume 13, number 1 57impacts on water deliveries under the 1944 treaty table 8. rio conchos watershed conflict situations and actions of cooperation at the sub-national and binational levels. level current and potential situations of conflict identified actions for cooperation and conflict reduction sub-national there is competition for surface water between municipal water and sanitation boards in the municipalities of chihuahua (jmas) and irrigation districts (ids) in chihuahua. the former is highly dependent on groundwater, which is on the verge of depletion and cannot consider surface water in their development plans because the ids use it. just as there is competition, cooperation is also present. for example, id* 005 delicias reached an agreement with the municipality of camargo, yielding 12,161 acre-feet (15 million cubic meters) per year for the jmas to use. the frequent drought occurrences manifest themselves in complex conditions, requiring adjustable solutions not even per 5-year period but yearly. these changes are sources of conflict. farmers in the upper basin have no mechanisms to obtain water from another source under drought conditions, as farmers in the lower basin do. they want no special deals, so a flexible plan can be established, such as annual irrigation plans, where all agricultural users share the same conditions. farmers identify the existence of clandestine water intakes in the basin and report several of them. however, they point out their displeasure because the authority does nothing, affecting other people’s interests. technology can help solve this, but strategies are needed to enforce the water authority so that legal users trust it. national water commission (conagua) had made decisions in situations with no consensus, such as the opening of the la boquilla dam on several occasions in 2020, even when negotiations continued, which caused large demonstrations by farmers and great distrust towards the authority. conagua is under pressure to guarantee the volumes of water delivered to the united states. despite this, it is essential to establish a dialogue with more time to forge a closer relationship with the farmers, so they feel their comments and requests take part in the process. there is an over-concession of water in the basin, which exacerbates the conflicts over competition for water. the commitment of all resources gives no room to provide a solution. improving the efficiency in managing the resource for all users should be a strategy to follow. it is necessary to enhance the distribution of available water without generating any conflict between uses. agricultural users in the basin indicate that their peers from the lower rio grande (coahuila, tamaulipas) let water drain for them. still, they do nothing about the problems faced by the upper basin of the rio conchos, which they identify as their water factory. there is also the opinion that these farmers demand more water they use with very low efficiency. in comparison, the id* 005 delicias is presented as an example. the payment for environmental services program has worked in several parts of mexico. in this direction, the lower rio bravo/rio grande and rio conchos basins may create mechanisms for cooperation to take care of the upper basins. considering that the farmers of the rio conchos contributed partially with resources to improve the efficiency in the use of water, their peers of the lower rio grande could also begin doing the same. binational the frequent occurrence of drought in the basin causes conflict in deliveries. there are reductions for all water users and no mechanisms to inform the percentage of decrease in deliveries on the assumption that there will be no excess water in the end. the minutes are the principal means of cooperation and conflict resolution. in this case, the international boundary and water commission (ibwc) should continue promoting the financial support in difficult times through organizations such as the north american development bank (nadb) to provide further certainty to constant deliveries to the united states (i.e., minutes 307–309). the definition and classification of an extraordinary drought are still not entirely clear in both countries. when it has occurred, it complicated the process of agreements between both governments. it is essential to have contingency plans during drought episodes to help clarify these pending aspects and thus cooperatively standardize the measures to be followed. the most critical issue is that users in general assume that there will be plenty of water to pay for the 1944 water treaty despite the current over-granting of water in the rio grande basin. mexican users are willing to comply with the treaty. however, they are against the overexploitation of any of the current six tributaries and believe that mexico should take more integral measures beyond these sources. source: gonzález-velázquez 2020 texas water journal, volume 13, number 1 water management in the rio conchos basin:58 of those conflict situations (uitto and duda 2002; giordano et al. 2002; wolf 2005). a recent approach that deals with this context are snh, a contemporary variant of the traditional concept of hydropolitics, which addresses a more common but little-studied problem: the conflict and cooperation in basins within countries, shared by multiple sub-national units (moore 2018). one of the postulates of this approach establishes that the difference between international hydropolitics and snh is one of scale rather than kind. however, the problems in searching for agreements leading to inter-jurisdictional collective action can be equally complex. the evidence around the dynamics of this trend defines three factors that intervene: (1) decentralizing processes (federalism, jurisdictions); (2) the sectoral identity (social, cultural, political, economic, ideological characteristics of the actors at the sub-national level); and (3) the structure of political opportunities, which opens the opportunity for actors and groups outside the governmental sphere to participate in political processes. these elements define greater participation of actors at the local and regional levels with significant weights in decision-making. the influence of ideological and institutional factors can modify the differences and conflicts between groups at those levels. a possible way in the opposite direction could be an institutional structure capable of building bridges between water users through third parties to allow collective action (moore 2018). the rio conchos basin is prone to conflict due to the water stressors and the governance structure described in table 7. table 8 shows the main points of conflict and cooperation— existing or possible—perceived by the governmental actors and stakeholders over water management and its binational implications (gonzález-velázquez 2020). domestic issues and centralization in mexico the rio conchos basin presents a de facto governance arrangement that contradicts the trends expected in a federalized model such as mexico (moore 2018). the omnipresence of conagua in all orders related to water management inhibits the participation of other government entities and the possible influence of their sectoral identity. also, the political opportunity structure is quite limited, and the involvement of actors outside the governmental sphere is almost nonexistent. table 8 depicts a general view of conagua’s operational role problems resulting from its functions’ weight and coverage. among these is the absence of coordination, resources, and competence at the local level to interact with other government entities and users to solve problems, a condition common to other regions in the country (sosa-rodríguez and castro-ruiz 2020). as a result, stakeholders report their low influence in the ccrb, which significantly restricts the possibility of having their complaints and ideas considered and implemented by the central government. the result is the lack of application of the law on the issues of clandestine intakes, the over-concession of water in some sectors and the coordination and follow-up actions to avoid this, which provokes questions from users towards the authority of conagua. some stakeholders opinions also indicate the absence of provisions for the occurrence of droughts. another concern is the high dependence of the urban sector on groundwater; the high population growth rates of some cities and the overexploitation of the main aquifers are common knowledge among the actors in the basin and public officials. there is also the impossibility of having greater volumes of surface water because only 11% of the water assigned by conagua to this sector comes from this type of water (conagua 2020b). chihuahua’s government has considered the feasibility of exchanging treated wastewater for potable water from the ids, as the city of delicias and id 005 delicias are doing (gech 2019a). still, these processes involve additional infrastructure costs, including improvements in the levels of treatment. water delivery obligations in the iwt table 8 also displays the views of the watershed stakeholders on mexico’s water delivery commitments within the iwt. they are aware of the iwt terms and the rio conchos’ central role in these obligations. however, they experienced authoritarian actions from conagua, such as opening the gates of la boquilla dam in 2020 without the knowledge of the affected users. this lack of communication with conagua prevents the participation of water users in decision-making about water delivery at the end of each five-year cycle. the watershed stakeholders feel that both users and authorities should seek agreements and develop contingency plans to improve water management efficiency and generate savings allocated to paying the debt, restoring ecosystems, and recharging aquifers. because compliance with the iwt is a national commitment, the respondents deem it necessary that all the neighbor states downstream should ensure equitable deliveries. also, they believe that both governments should continue their cooperative actions through binational financing programs like the north american development bank’s (nadb) to improve the agricultural sector’s efficiency in the basin. finally, the absence of direct communication with cila is also a concern affecting stakeholders’ knowledge about the government’s activities on rio grande deliveries. it is then that the actors in the basin are aware of these difficulties within the mexican government structure and therefore propose a more flexible role of conagua as a bridge with cila to channel their viewpoints and ideas12. 12 this lack of flexibility shown by cila is shared within the centralized mexican model. it contrasts with the operative openness of its counterpart in the united states towards other governmental actors and the border communities (castro-ruiz et al. 2018). texas water journal, volume 13, number 1 59impacts on water deliveries under the 1944 treaty conclusions our analysis in the previous sections depicts a picture of the rio conchos basin that calls for attention beyond the bare volumes of water required by mexico at the end of the 5-year cycles established in the iwt. in this sense, we conclude that the problems related to water management in the rio conchos basin have not been fully understood or addressed within the lines of water policy in mexico. the main factor behind these problems is the persistent presence of the centralized political-administrative model in the basin and its effects at the operational levels, which hinders the possibility to reach an ideal governance. in addition, the autonomy of other government jurisdictions is considerably limited in decision-making, also inhibiting the participation of non-governmental organizations, as aurech’s characteristics show (moore 2018). as the perceptions of stakeholders and government actors at lower levels consistently point out, conagua, the central agency in charge of enforcing the lan, exercises a significant weight in all active orders, despite its apparent territorial decentralization for decision-making. this presence forces other government entities and civil society to play a merely functional role, dependent on the regulations and funding of the agency. on the other hand, conagua’s lack of resources and capabilities at the local level led to a series of operational gaps that do not allow the agency to fulfill its functions completely or enforce legal frameworks, promoting situations such as illegal access to water and the contempt by part of the farmers towards the entity for not solving the problem of the excess of concessions. a recurring theme related to these demands is the operation of ccrb, conagua’s consultative body for this region, whose relationship with users is a source of criticism for not fulfilling the support functions that justify its creation. the geographic jurisdiction of the ccrb is the largest of all ccs in mexico, with almost 20% of the national territory (conagua 2018). the lack of resources restricts continued support for users’ participation or the representatives of the auxiliary entities in the sessions of the council. the impacts of internal water management on deliveries to the united states within the iwt is another aspect that deserves some reflection. from our analysis in this regard, it is evident in the case of mexico that it is necessary to implement programs that seek efficiency, save water, and involve users of the basin, allowing better planning of water deliveries to the rio grande during each 5-year cycle. this process should improve users’ communication channels not only with conagua but with cila, enhancing the flow of information and allowing better cooperative work between them. on the other hand, cooperation around the iwt has not been constant in infrastructure investment to increase efficiency in water use in the basin; this would help to give certainty to delivery commitments to the united states. these programs are well known and expressed by water users in the rio conchos basin from the projects signed in minutes 307–309 of cila. therefore, investment opportunities in water infrastructure allow for more significant water savings in the basin. our work also highlights the proactive and committed attitudes of the stakeholders in the basin, despite the reduced options available to channel their views, complaints, and problems with conagua. their input and active participation align with other efforts from non-government actors and stakeholders along the u.s.-mexico border (mumme et al. 2014; castro-ruiz et al. 2018; brown and mumme 2021). stakeholders provide strong support in seeking agreements on the role of the rio conchos in mexico’s water delivery obligations in future cycles. moreover, their views are straightforward: timely provisions will lower the likelihood of deficit problems such as those experienced at the end of each 5-year process in the past. the problem of the rio conchos should not be interpreted simply as the non-availability of water at the end of each cycle and take action based on short-term actions. instead, the evolving characteristics of the rio conchos basin and the feedback provided by its stakeholders and water users about the basin’s problems and possible solutions should be an integral part of longer-range plans devised by conagua and cila. minute 325, recently signed to solve mexico’s debt in the last cycle, demonstrated the willingness of the mexican and u.s. governments to jointly solve the problems that arise from compliance with the iwt. this minute can be the starting point for future actions that are not limited to short-term horizons and are sensitive to the sustainable future of the rio grande basin and its tributaries. as demonstrated in this study, continuous and close coordination between the two countries is essential. on one hand, this coordination integrates the social dimension through better governance conditions between the actors of the rio conchos basin and other regions downstream of the rio grande. on the other hand, it is opportune to consider the financial support that arose from cooperation programs through organizations such as nadb that foster long-term planning actions to assure greater water availability at the end of each cycle. texas water journal, volume 13, number 1 water management in the rio conchos 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water resources institute volume 2, number 1 2011 texas water journal http://texaswaterjournal.org volume 2, number 1 2011 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander robert gulley, ph.d. texas a&m institute of renewable natural resources robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas agrilife research, the texas agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor jaclyn tech texas water resources institute texas a&m institute of renewable natural resources cover photo: texas parks and wildlife department http://texaswaterjournal.org http://texaswaterjournal.org texas water journal, volume 2, number 1 112 texas water resources institute texas water journal volume 2, number 1, pages 112–114, december 2011 book review: water policy in texas: responding to the rise of scarcity 1school of geography and development, university of arizona, tucson, arizona, usa; zsugg@email.arizona.edu this review has been modified from a previously published version (sugg 2011). reviewed by zachary p. sugg1 griffin, r. c. (ed). 2011. water policy in texas: responding to the rise of scarcity. washington, dc: rff press. isbn: 9781-93311-589-4, 250 pages, us$94.95. url: www.earthscan.co.uk/?tabid=102395&v=512412 citation: sugg zp. 2011. book review: water policy in texas: responding to the rise of scarcity. texas water journal. 2(1):112-114. available from: https://doi.org/10.21423/twj.v2i1.6134. © 2011 zachary p. sugg. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:zsugg@email.arizona.edu http://www.earthscan.co.uk/?tabid=102395&v=512412 https://doi.org/10.21423/twj.v2i1.6134 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 2, number 1 113 “the free lunches of the original texas water endowment have been consumed” (p. 238). this statement nicely captures the current crossroads of water policy in the state of texas. like many places where water is over-allocated and demands are ever-increasing, in texas it is no longer possible to allocate water to one use without reducing the allocation to another. future water management will largely be about managing trade-offs, and a burning question for water policy scholars and practitioners is how best to go about it. water policy in texas: responding to the rise of scarcity aims to convey the texas experience to date in the hope of making lessons learned, good and bad, available to a wide audience of researchers, practitioners, and the public. the two main aims of this particular volume are (1) to see what has been learned in the texas water policy experience and (2) to evaluate the current status of water management in texas, in light of recent changes and future possibilities. the social, economic, and environmental impacts associated with the hottest summer and the driest 12-month period in texas recorded history only serve to highlight the timeliness of this volume and the critical need to take stock of water policies. the chapters are intentionally relatively short, with the difficult aim of providing enough substance to be useful as summaries without getting into excessive detail. the authors largely succeed at this. for readers who might need only a well-researched summary on one or more topics, the amount of information given in the chapters will probably be enough, but they are also well-referenced so that those who want to dig deeper into a particular topic will be able to do so, a major source of value of this volume. although the chapters are mostly written to stand alone, chapters 2 (background information) and 3 (water law) are integral to understanding many of the others. chapters 3 and 4 and 6 and 7 work well as pairs. interestingly, the term “sustainability” is intentionally jettisoned throughout the book due to its ambiguity, which has lent itself to cynical manipulation by some interests. additionally, water “needs” and “demands” are both given specific definitions. i note this because the problematic ambiguity of such commonly used terms in the “water jargon” is not always identified and clarified up front as it is here. i appreciated these choices and i would wager most other readers will as well. texas is introduced in the opening chapter as a policy laboratory where unique responses have been applied to globally ubiquitous water problems. a number of conditions contribute to the uniqueness of the texas situation, such as the relatively minimal presence of federal agencies in both landownership and water rights, even in federally constructed water storage facilities. additionally, there is broad geographical and climatic diversity, a strong culture of respect for private property rights, a huge and highly irrigated agricultural economy, and 5 of the 20 largest cities in the us, all of which are experiencing rapid growth. add to this a long coastline and a shared international watercourse border and you have a recipe for a highly complex water puzzle. these characteristics shape many of the issues in the rest of the volume. chapter 2 provides a useful backdrop for the rest of the chapters, describing the highly diverse hydro-geography of the state, as well as the current trends of increasing demand, the impact of water use on environmental quality thus far, and the history of state-level water resources planning. the rest of the chapters address various scarcity-related topics such as water law, water marketing and pricing, boundary compacts and treaties, water for the environment, groundwater depletion and management, and technological water alternatives. most of the policy issues cannot be understood without first grasping the basic legal doctrines, which are described clearly and effectively in chapter 3. these consist primarily of (1) prior appropriation rights (first in time, first in right) to surface water granted by state permits and (2) a separate “rule of capture” law for groundwater, a doctrine where unquantified and unprotected (from interference of others) rights to pump are attached to private property rights in overlying land. indeed, much of the rest of the book is about various efforts to work around and within this dissonant legal framework. all of the chapters contain valuable information that seems useful to both researchers and practitioners. i found the strongest and most illuminating of these to be chapter 5 on the regulation of the edwards aquifer, chapter 8 on transboundary compacts, and chapter 7 on water for the environment. chapter 6 is particularly engagingly written; while the information it presents on the scientific challenges of quantifying instream flows and estuary health is less explicitly policy-oriented than in other sections, chapter 7 balances it with the necessary legal and policy context. unfortunately, the same cannot be said for chapter 10, which provides excellent technical information about different desalination and reuse processes but misses an opportunity to engage with any number of important policyrelated questions. these questions include topics regarding the environmental impact of brine waste disposal, pricing and access to desalinated water; and public perceptions of reused and reclaimed water and how these alternative strategies are being worked into the existing legal and institutional settings. although not intended to be comprehensive, this volume strategically covers a range of very important scarcity-related topics. however, it could have been even more complete with the inclusion of a chapter exclusively devoted to urban water issues, particularly the relationships between water provision, planning, zoning laws, and urban growth. texas has several major urban areas, and there are likely lessons to learn from the ways they have managed urban water provision and suburban development. additionally, some treatment of scarcity issues related to water provision in colonias (the poor communities book review: water policy in texas: responding to the rise of scarcity texas water journal, volume 2, number 1 114 does not directly address the issue of whether and to what extent this integration may be occurring in texas, though the assessment in chapter 8 of the flexibility of compacts and treaties governing water resources on the texas-mexico border is rather negative on this point. second, by exacerbating and highlighting already-existing water issues, the current drought should be a useful moment in which to identify the ways that texas water policy can be made more effective at mitigating the more deleterious impacts of drought in the future. in that respect, the lessons in this book could not be more timely. in sum, like most places struggling with water scarcity problems, the texas case offers a mixed bag of positive and negative experiences. but there are valid reasons for those outside the state to pay attention to how recent developments play out over the coming years. overall, water policy in texas does a laudable job relating the texas water story in a digestible but highly substantive way. by showing that the types of problems texas faces are not unique, but that the responses often are, the book successfully makes the case that it is a story worth reading. along parts of the texas-mexican border) would have been a welcome contribution. a handful of other interesting issues receive mention but could have been developed further, e.g., various conflicts between users in different demand sectors, the accumulation of private land by private interests in order to profit from the sale of the attached groundwater rights, and the water-energy nexus. in the end, one does get the sense that texas has pursued a fairly unique path with regard to water resources, which has been dictated largely by its legal doctrines and the apparent unwillingness to change them on the part of either the state courts or the legislature. much of the legal and policy change that has occurred has been precipitated by severe droughts, which may remain the case in the future. many of the lessons contained in this volume are of the cautionary variety and not things that others will want to repeat. the state’s public texas water trust, for example, has no funding to acquire water rights and, consequently, has just two water rights for environmental use after over a decade of existence. however, the fact that texas is bumping up against some hard limits has yielded some interesting developments that deserve wider attention. for one, the experience in texas with water marketing (chapter 4) should be compared to other similar water markets in other states and countries, given the continual debate over their use as an allocation mechanism. additionally, the jury is still out on the ideal way to manage and regulate groundwater depletion, and consequently the localised texas groundwater conservation district model (chapters 3 and 9) warrants consideration given that more centralised models in other states have not exactly been panaceas either. similarly, the creation of a regulated cap and trade model of sorts based on adjudicated groundwater rights for the edwards aquifer constitutes a ground-breaking rejection of the rule of capture law governing the rest of the state’s groundwater that appears likely to yield some important lessons. it will also be interesting to see how the various transboundary compacts texas is party to will adapt to changing climatic conditions that could alter the baseline flows on which current allocations rely upon. finally, it seems that there is potential to make some major strides towards allocating water for environmental uses through the environmental flows program authorised by the state legislature in 2007. as noted in chapter 5, the consensus of future climate model projections for the southwest, including central texas, is there will be increases in overall aridity and in the intensity of drought events during la niña conditions (seager 2007). the current la niña-induced severe drought appears to be in line with these predictions, which draws attention to two points. the first is that it will be critical to integrate considerations of climate change into water policy, management, and planning in a meaningful way in order to mitigate the kinds of impacts currently being felt around the state. unfortunately, this book book review: water policy in texas: responding to the rise of scarcity references seager r, ting m, held i, kushnir y, lu j, vecchi g, huang hp, harnik n, leetmaa a, lau nc, et al. 2007. model projections of an imminent transition to a more arid climate in southwestern north america. science. 316:1181. sugg zp. 2011. review of water policy in texas: responding to the rise of scarcity. griffin, r.c. (ed.). water alternatives. 4(2):245-247. editors note: chapter names and authors are as follows: chapter 1: experiments in water policy, ronald c. griffin chapter 2: texas water resources, john b. ashworth and ric jensen chapter 3: texas water law and organizations, ronald kaiser chapter 4: texas water marketing and pricing, ronald c. griffin chapter 5: the edward aquifer: hydrology, ecology, history, and law, todd haydn votteler chapter 6: the importance of freshwater inflows to texas estuaries, paul montagna, ben vaughan, and george ward chapter 7: water for the environment: updating texas water law, mary e. kelly chapter 8: texas boundary water agreements, kathy alexander martin chapter 9: ground water depletion in the texas high plains, david b. willis and jeffrey w. johnson chapter 10: advanced technologies for tapping unconventional texas waters, david jassby, andrew j. leidner, yao xiao, andreas gondikas, and mark r. wiesner chapter 11: water management guidance from texas, ronald c. griffin sharing the common pool: water rights in the everyday lives of texans texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 6 number 1 2015 texas water journal http://texaswaterjournal.org volume 6, number 1 2015 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources staff editor kristina j. trevino, ph.d. cover photo: anzalduas dam in hidalgo county. photo courtesy of the texas water development board. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 6, number 1, pages 64–66 porter cr. 2014. sharing the common pool: water rights in the everyday lives of texans. college station (texas): texas a&m university press. isbn 978-1-62349-137-6. 240 pp. reviewed by robert e. mace1, 2, * book review: sharing the common pool: water rights in the everyday lives of texans 1texas water development board 2 this review does not necessarily reflect official texas water development board positions. *corresponding author: robert.mace@twdb.texas.gov texas water journal, volume 6, number 1 citation: mace re. 2015. sharing the common pool: water rights in the everyday lives of texans. texas water journal. 6(1):64-66. available from: https://doi.org/10.21423/twj.v6i1.7024. © 2015 robert e. mace. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:robert.mace%40twdb.texas.gov?subject= https://doi.org/10.21423/twj.v6i1.7024 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 6, number 1 65book review: sharing the common pool capturing the backstories, complexities, and potential pitfalls of texas water law in a single, readable book is a daunting task, but charles r. porter braves the challenge and, for the most part, succeeds in delivering a good overview in sharing the common pool: water rights in the everyday lives of texans. written primarily for landowners and real estate agents, porter, who is himself a real estate agent and broker, delivers a fairly comprehensive view of how water intersects with our lives and properties. as porter notes, “water is the ultimate zero sum game...”, and it behooves landowners to be aware of water and their rights. however, there are some missed opportunities in the book, and given the complexity and nuances of the topic, there are plenty of details to quibble about. nonetheless, despite its 240 pages, the book’s conversational style goes down delightfully easy. (i was able to read it during an afternoon plane ride.) porter appropriately hedges his writing by mentioning numerous times that one should consult a water attorney when getting down to the nitty-gritty of property and water. a primary driver for the book is that as water becomes more important in our growing state, it becomes more important in our real estate transactions. in porter’s own words, “a major message of this book is that cities are desperate now and will be more desperate in the future for water resources; they are rightly and diligently trying to fulfill their duties to their citizens. landowners should be aware that their individual interests in groundwater rights should no longer be taken for granted.” although with regard to water supply porter leans toward the private property rights perspective, he provides a reasonably balanced view of water law and regulation in texas and the policy issues entwined with those topics. the book is organized into 5 parts: (1) an introduction to water and water rights, (2) ownership of water, (3) how we use water and who regulates that use, (4) water in real estate transactions, and (5) water policy. the outline works well, although topics unavoidably seep into each other. porter includes an appendix where he provides detailed descriptions of key legal cases. the book also includes a reference list, endnotes, a glossary, and an index. where appropriate, porter helpfully provides examples of broader concepts and thoughts. for instance, it would be mind-numbing to present rule summaries of the nearly 100 groundwater conservation districts in the state, but porter includes details of how a specific district’s rules might impact a landowner. nonetheless, porter misses several chances to amplify his points. porter notes how ownership of a water molecule can change depending on which “geologic bucket” that water molecule is in. it’s private property when it’s overland flow, public property when it reaches a state watercourse, private property when it seeps into the ground, and then public property again when it discharges to a state watercourse from a spring. soon after, porter refers to the texas supreme court decision on edwards aquifer authority v. day and mcdaniel. while he appropriately focuses on the takings implications of this decision, the brutally short summary of the case (landowners apply for 700 acre-feet per year; edwards aquifer authority gives them 14 acre-feet per year.) misses a fascinating intersection of groundwater and surface water law that serves as an important lesson for landowners. (landowners apply for 700 acre-feet per year, and based on the reported irrigated acreage of 300 acres, edwards aquifer authority staff initially recommend a permit for 600 acre-feet per year [2 acre-feet per year per acre]. after a site visit, edwards aquifer authority staff note that groundwater discharging from the well is entering a state watercourse in an uncontrolled manner and collecting behind an on-channel dam from which it is then diverted for irrigation. because well water becomes state water after it enters a state watercourse in an uncontrolled manner, authority staff changes its recommendation from 600 acre-feet per year to 0 acre-feet per year. landowners challenge the recommendation and seek a contested case hearing. during the hearing, it is learned that 7 acres are irrigated directly from the well head with the rest irrigated from behind the dam, resulting in a permit recommendation from the administrative law judge of 14 acre-feet per year; edwards aquifer authority gives the landowners 14 acre-feet per year.) with the drought and the issues it has caused landowners and water managers, it would also have been helpful for porter to include a discussion on lakefront property (the certainty of lake levels and littoral rights). a discussion of superior rights and how to value water would have also been useful inclusions. writing a non-fiction book requires a monumental effort. i know, because i’ve been failing at it for the past 10 years. each minor and major topic is a potential black hole of side stories and fact checking, which is further complicated when you find out that the facts you are fact checking are not, in fact, facts. if your goal is to be 100% accurate, your goal is to not finish your book (porter 2; mace 0). we can’t all be robert caro, dedicating 10 years of full attention to each book. so inevitably, there are inaccuracies and misstatements in the book: • all surface water rights have been granted. (this is perhaps true for some very senior run-of-river rights, but there are high-flow events available for permitting, not to mention temporary permits.) • landowners have a right to divert 200 acre-feet without a permit. (this is debatable among legal scholars.) • the state has 23 minor aquifers. (there are 21.) • the recharge zones of most of our major aquifers are environmentally protected. (nope.) • rice farmers have a senior right but the lower colorado texas water journal, volume 6, number 1 book review: sharing the common pool66 river authority has the right to curtail that right. (nope.) • the texas water development board should create a groundwater conservation district in val verde county. (the board doesn’t have the authority to do this.) descriptions of the desired future condition process and groundwater desalination at el paso are hopelessly mangled. nonetheless, despite being a failed writer and a grumpy technocrat, i found a lot to like in the book. i loved reading porter’s take on the east case, del rio water issues, metering, opinions by the attorney general, and how people really need to pay attention to water when making property disclosures. this is also a good-looking book. published by texas a&m university press, the book is a strongly bound softcover, in color, and beautifully formatted and copy-edited. water policy changes quickly, especially in this drouthy and post-day and mcdaniel world. hopefully, a revised edition is planned for the future to include new developments and to address the concerns mentioned above. and always remember to make sure you talk to your favorite water attorney before you do anything with water and your property. commentary: the legacy of charlie flagg: narratives of drought and overcoming the monster in west texas water policy debates texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 4, number 1 2013 texas water journal special issue: groundwater http://texaswaterjournal.org volume 4, number 1 2013 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: an artesian well, belonging to catfish farmer ronnie pucek, in the edwards aquifer in 1993. © peter essick http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 4, number 1, pages 78–92 abstract: the 40th anniversary of the publication of elmer kelton’s 1973 novel the time it never rained coincides with one of the most severe droughts on record in texas. meanwhile, as of 2005, local groundwater conservation districts in texas are required by law to determine how much groundwater they want to conserve for future generations. such policy decisions have led to debates in west texas among agricultural producers over whether pumping restrictions amount to erosion of the famous “rule of capture” and private property rights. this article presents texas water law history, the ogallala aquifer, and its users as a continuing story in which producers and government policy-makers are actors. this paper first summarizes the ways in which water challenges in the american west and elsewhere have been classified according to different disciplines and then shows how each of those ways of knowing can be understood as a kind of storytelling. the author uses kelton’s drought novel and scholarly insights into how narrative works as a means of interpreting and contextualizing comments made by producers and others at several west texas agricultural water policy hearings. the article concludes that policy-makers must consider the human instinct to translate complex and often contradictory knowledge from multiple domains into a less confusing story line. keywords: narrative, elmer kelton, groundwater management, drought, ogallala aquifer ken baake 1 commentary: the legacy of charlie flagg: narratives of drought and overcoming the monster in west texas water policy debates 1 associate professor of english, texas tech university, lubbock, texas * corresponding author: ken.baake@ttu.edu texas water journal, volume 4, number 1 citation: baake k. 2013. the legacy of charlie flagg: narratives of drought and overcoming the monster in west texas water policy debates. texas water journal. 4(1):78-92. available from: https://doi.org/10.21423/twj.v4i1.6993. © 2013 ken baake. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v4i1.6993 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 4, number 1 79the legacy of charlie flagg terms used in paper short name or acronym descriptive name groundwater management areas gmas high plains underground water conservation district hpuwcd production and marketing association pma introduction this year (2013) is the 40th anniversary of the publication of elmer kelton’s novel the time it never rained. its theme of water challenges is as timely now as when the novel was first published in 1973. the recent multi-year drought that has gripped much of texas reminds us that the hardships faced by lead character charlie flagg in the scrub rangeland around san angelo during the 1950s continue to plague texans. today, it is not just farmers and ranchers who endure these hardships; urban and suburban residents throughout the state face watering restrictions, encroaching wildfires, and almost unbearable summer heat. data bear out the severity of recent texas drought conditions. according to state climatologist john w. nielsen-gammon, the 12 months between october 2010 and september 2011 were the driest 12 consecutive months on record for the state—drier by 2.5 inches than the 12-month period set during the 1950s drought (nielsen-gammon 2012). nielsen-gammon calls the 2011 drought “unprecedented in its intensity,” while regional news reports suggest that the drought is beginning to take a serious economic toll on the region. “shaken and stirred: for many, job losses mean leaving friends, family, home” is the headline over an early 2013 article in the lubbock avalanche-journal after an international food production and marketing company announced layoffs of 2,000 workers at a plainview meat processing plant (hoff 2013). cargill, incorporated attributed the layoffs to the multi-year drought that has reduced cattle supplies in the region. understanding some of the ways residents process such severe drought is the goal of this article, which asserts that the time it never rained is essential reading for anyone in texas involved in water and general environmental policy (kelton 1973). while it is a good novel in its own right, the main reason for endorsing it as important background reading for policy-makers is that kelton’s plain-written prose helps us understand deep-seated suspicion of government regulation in the name of the environment—a suspicion that if anything has grown since the 1950s. in that vein, the time it never rained can serve as a literary exemplar of traditional west texas values, along with the challenges those values bring to attempts at fostering environmental stewardship—particularly water conservation. a cursory survey of newspaper articles and internet stories about recent texas droughts reveals that kelton’s novel continues to speak to texans. for example, james decker writes in cattle call, a blog of the national cattlemen’s beef association young producer’s council: elmer kelton’s novel “the time it never rained” masterfully tells the story of the 1950s texas drought and the bleak life in west texas during those miserable days. and unfortunately, the year 2011 has shaped up as an unwanted sequel to that 1973 literary masterpiece (decker 2011). similarly, a july 23, 2011 headline over an editorial in the austin-american statesman proclaims “the time it never rained has come again.” the editorial continues by reaffirming the need for stringent water conservation measures in the austin area (austin american statesman editorial board 2011). to understand the enduring power of kelton’s 40-year-old novel to represent rural texan attitudes, it is necessary to consider the power of any story to encapsulate cultural values, beliefs, and even scientific knowledge. to that end, this article first summarizes the ways in which water challenges in the texas water journal, volume 4, number 1 80 the legacy of charlie flagg the presence of such underground bounty could not help but remind the stern protestant settlers of old testament accounts of moses and his brother aaron striking a desert rock to bring forth the water from underground. “take the staff, and assemble the congregation, you and your brother aaron, and command the rock before their eyes to yield its water,” the lord commanded moses (numbers 20: 7-8). when that water from eons past is exposed to the atmosphere through evaporation from the surface or through transpiration from plants, it becomes the main character in the hydrological cycle. this story is more often represented progressively in science visuals as water vapor rising from the ocean into the atmosphere on one side of the image, forming clouds over the center, and raining down onto the land on the other side. once brought to the surface from underground or already found there in streams and lakes, the water becomes part of another story—that of human societies allocating its use through laws and policies. indeed, the old adage that “whiskey is for drinking and water is for fightin’” 3 summarizes a century’s worth of water law in the american west. countless courtroom dramas have played out in texas over who owns the water, dating to the 1904 texas supreme court ruling that established the famous “rule of capture” after a landowner sued the houston & texas railroad for depletion. 4 under this rule, “absent malice or willful waste, landowners have the right to take all the water they can capture under their land and do with it what they please, and they will not be liable to neighboring landowners even if in doing so they deprive their neighbors of the water’s use” (potter 2004 p. 1). this 1904 case established “precedent,” a legal term referring to the story that everyone refers to henceforth when faced with challenges involving similar characters and settings. how much water (or any resource or commodity) that a community uses is understood in economic theory through different types of models, which are stories of how “independent variables,” such as average daily temperature and population density, affect the “dependent variable”—in this case, the “demand” for water. economists model these relationships with formulas and data that show whether a change in any independent variable results in a change in the dependent variable, and whether that change is significant enough to indicate that something meaningful (a story of cause and effect) is happening. as economist and rhetorical scholar deirdre mccloskey notes, the question economists often ask after being presented with a long mathematical equation is usually a simple one: what’s your story? (mccloskey 1998). 3 this adage is often attributed to mark twain, although there is no evidence that he actually said or wrote it. 4 for a detailed history of texas water law, see mullican and schwartz 2004. american west and elsewhere have been classified according to different disciplines—such as geological and hydrological science, law, and economics—and then shows how each of those disciplinary ways of knowing (i.e. epistemologies) can be understood as a kind of storytelling. the latter part of this paper presents kelton’s drought novel and scholarly insights into how narrative works as a means of interpreting and contextualizing comments made by producers 1 and others at several west texas agricultural water policy hearings. narrative way of knowing the ogallala aquifer the urge to tell and hear stories is intrinsic in human behavior and has been the subject of academic study through the field of literature, typically found in departments of english and other languages but also in fields such as history, anthropology, sociology, mass communications, and psychology. science is concerned with stories to the extent that it classifies reality and posits cause and effect relationships among different aspects of that reality. these theories of cause and effect are situated in time and place, which, of course, also form the essential background or “setting” against which stories play out. for the french philosopher of language paul ricoeur, narrative is nothing less than a way of coping with the passage of time. that passage of time in the presence of others involves actions that lead to the formation of one’s identity 2. the passage of time both in prehistorical and historical settings underlies all of the ways we have understood water and water policy in the american west since the 19th century. we need only look at geology of the ogallala aquifer that provides water to texas’ high plains region and to 7 other great plains states stretching north to south dakota. its formation as a vast underground bed of saturated sand is a story that begins prehistorically 10 to 12 million years ago during late tertiary (miocene/pliocene) geologic time, when runoff of water and sediment from the rocky mountains splayed out in a great alluvial plain that filled the contours of the land to the east (hpuwcd 2013). geological representations of the aquifer, like nearly all geological representations, are stratified—the story of time’s passage represented like the cross section of a cake by the layers of earth, rock, saturated sand, and sediment. fast forward into historical time of the late 1800s when settlers moving west tapped the aquifer, first with windmills and later with centrifugal gasoline-powered pumps. indeed 1 “producer” is a term used to mean anyone who produces a product from agriculture, such as a crop or livestock. in west texas it applies to farmers and ranchers. in this article i will use it synonymously with “farmer” or “cotton farmer.” 2 for a summary of how the concepts of identity, time, and narrative are theoretically linked in ricoeur’s work and others, see ritivoi 2008. texas water journal, volume 4, number 1 81the legacy of charlie flagg in literary disciplines, the ways in which stories 5 work is the subject of narrative studies. narrative is the mental reconstruction of a sequence of events, or as english professor david herman and other scholars show in their research, the way in which human experiences and other aspects of reality are organized and interpreted to provide meaning (herman 2002). often the events confronting characters in a story are challenging, and it is the response to those challenges that makes up the plot of the story. stories that contain plots, character types, and symbols that recur across time and cultures are commonly known as “archetypal stories,” a concept based on the psychological theories of carl jung and their use in analysis of myth by joseph campbell. such narrative patterns involve similar types of characters facing similar challenges. archetypal stories shared across a culture preserve for that culture knowledge that “has been learned assiduously over the ages” (ong 1982 p. 41). charlie flagg: archetype of the rugged individualist charlie flagg’s situation in the time it never rained could be seen as archetypal, preserving the lesson of endurance found in various old testament stories of god testing man via various environmental stresses. for instance, in the story of job, a pious man of ancient palestine is afflicted by unimaginable trials—loss of his animals, his family, his home—a seeming betrayal by god. yet, job remains steadfast in acceptance of god’s wisdom, even if he questions why he would punish a just man. in the end, he is rewarded for his patience with new wealth and offspring. the steadfast endurance of job replays in the time it never rained, which revolves around charlie’s efforts to keep his ranching operation going during the tenacious 1950s drought. but the novel also addresses other timeless themes of farming and ranching life in texas (and any semi-arid area). a strong theme throughout is that of relations between peoples, in this case anglo and hispanic texans. at times, these relations are loving and respectful and at times patronizing and resentful. other themes include relations between ranchers and oilmen, ranchers and bankers, fathers and children, illegal immigrants and the border patrol, and texans and their guns. charlie’s story could also be seen as 1 or more of 7 basic plots in story telling as identified by literature scholar christopher booker (2004). at a general level the plot in the time it never rained is a kind of tragedy. but kelton’s story could also more specifically be seen as one of booker’s plots called “overcoming the monster.” booker gives various examples of 5 some scholars make a distinction between “narrative” and “story,” whereby a story is the action that occurs and narrative is the telling of that action. this paper will use the 2 terms synonymously. famous monsters and their vanquishers in literature, from the ancient greek medusa and perseus to h.g. well’s victorian era “fungoid” martians who are finally bested by “humble earth bacteria” (p. 23-29). such monsters typically act either as predators stalking the earth, as guardians of a treasure, or as avengers for past human transgressions. kelton sets up the monster plot line in the prologue by immediately animating drought as a predatory creature. he writes: “it crept up out of mexico, touching first along the brackish pecos and spreading then in all directions, a cancerous blight burning a scar upon the land” (1973 p. 1). like a dragon, this drought monster smothers the grass and even weeds “with its hot breath” (p. 1). an equally dangerous monster in kelton’s novel, however, is the federal government, a seeming behemoth of insensitive agencies and bureaucrats that attempt to dictate west texas agricultural policy from afar. the rural texan’s suspicion of government today, especially liberal government, had its roots in the post-new deal era that kelton captured in his story of charlie flagg. within the first few pages charlie runs afoul of a federal agriculture agent of the production and marketing association (pma)—one of the predecessor agencies of the u.s. department of agriculture’s farm service agency. kelton’s third person limited perspective lets us into charlie’s mind where we learn that the agent determines the amount of different kinds of crop a farmer could grow and what kind of price supports and financial aid he would receive from the government. in charlie’s mind the trade-off is akin to selling one’s soul to the devil: “here he sold his freedom bit by bit, and was paid for it on the installment plan,” kelton writes (p. 6). charlie’s response to the agent’s request for him to attend a pma meeting is terse, dismissive, and tempered with the west texan ideal of rugged individualism: “what i can’t do for myself, i’ll do without” (p. 9). throughout the novel as the drought tightens its grip, ranchers become more dependent on government aid. fellow ranchers at one point ask charlie to go to washington on their behalf to argue for more price supports. charlie’s refusal, his stubbornness to participate in the government programs proves the prudent path, however, as the novel reaches a climax with ranchers in despair over the financial ruin brought on in part by their indebtedness to the federal agency. because he stubbornly resisted government assistance for ranchers and its attendant controls, kelton’s most famous character has been venerated among conservatives; the national review in 2010 listed the time it never rained as one of the 10 “great conservative novels” (miller 2010). indeed, in the novel, even the representatives of liberal collectivism at its most evident—federal agricultural agents—begrudgingly admire charlie as “[o]ne of those rugged individualists,” although they predict that his refusal to take aid will turn him texas water journal, volume 4, number 1 82 the legacy of charlie flagg per year in the southern high plains during the peak irrigation years of the late 1950s (hpuwcd 2013) 7. the cause is frequent droughts (1860s, 1930s, 1950s, 1990s, 2011 to present) leading to higher irrigated agriculture use and, therefore, significant aquifer drawdown. despite the depletion, major voluntary reductions in irrigation demand on the texas high plains will be difficult. the texas high plains cotton industry drives the regional economy, producing an average of 3.66 million bales per year in the decade 2000–2010 on the texas plains (pcg 2004 8). typically about half is irrigated while half is dryland, that is, totally dependent upon rain (burns 2012) 9. but because it takes 100 gallons of water or more to make 1 pound of cotton, the effect is that we are exporting what has become known among environmental scholars as “virtual water” in t-shirts, etc. from the ogallala 10, 11. a hidden and occult wonder given the multiple overlapping narratives that shape the ways in which we view the ogallala aquifer and water policy, it is not surprising that attitudes among stakeholders would both reflect the complex factors involved in knowing water, but would also attempt—if even subconsciously—to reduce those many factors to a simpler story line. in research over the past 10 years, reading reports and other texts about water in texas, attending public meetings, and interviewing farmers and others, the author of this article has found that knowledge about water and about the environment in general, is forged out of paradoxes. multiple stories coexist in all people. for example, at times drought is seen as a cycle and at other times as the result of sin. in the former the story originates 7 the average annual decrease of stored groundwater in the entire 8-state range of the high plains aquifer between 2000 and 2007 was 10 million acre-feet per year, according to a report from the u.s. geological survey. see stanton js. et al. 2011. 8 this website was created in 2004 and has data through 2010, as of june 11, 2013. 9 reports in late 2013 (see musico 2013a) suggest that the amount of irrigated cotton acreage on the texas high plains has dropped to 37 percent, reflecting an increasing awareness of conservation needs by farmers. of course, variations in rainfall and fuel costs for pumping also affect farmers’ yearly decisions on how much to irrigate. 10 for a detailed discussion of the concept of virtual water, see renault d. 2002. 11 meantime, we are rapidly reaching the technological limits of efficiency in using that water. in the 1870s–1880s windmills dipped 30 to 40 feet into the ground. in the early 1900s, centrifugal steam pumps pulled water out of wells to feed irrigation ditches that delivered maybe 50% of the water captured to plants. center pivot irrigation started 1950s and is 75% to 95% efficient. buried drip irrigation is almost 100% efficient. there is not much more irrigation efficiency to be had. into a “ragged individualist” (kelton 1973 p. 9 emphasis original) 6. flagg invariably is the most admired literary character in a class that the author of this article teaches on texans and their land. undergraduates almost all identify with charlie, seeing in him traits that they admire in the adults in their lives, traits that before reading the novel they did not fully recognize as being part of their own values and ideology. they seem liberated, freed to identify with a character that is quintessentially west texas, perhaps having previously suppressed such regional enthusiasm in an effort to seem more urbane and intellectually mature, or what they often call “politically correct.” kelton has said that attitudes like charlie flagg’s toward land ownership in part go back to feudal times in europe and britain (where the anglos and germans of texas came from via the american south). in feudal times peasants worked for the lords who were the landowners. so when they got to the new world, they coveted land of their own that was not controlled by anyone else; thus, no “land lords” (kelton 2009 personal interview). exploring this cultural heritage of intense individual freedom in texas through the time it never rained sheds light on why local attitudes make it so difficult to forge a national or international policy for dealing with environmental challenges such as drought. the ranches around kelton’s hometown in the 1950s used wells to fill stock tanks, but depended largely on rainfall to provide grass for their livestock. today, much of texas, including the high plains and panhandle regions, rely primarily on groundwater, including that provided by the ogallala (also known as the high plains aquifer); it provides nearly one-third of the irrigation groundwater in the united states (usgs 2013). at one time the ogallala contained 20% more water than lake huron—the second largest of the great lakes (pielou 1998). much of that water table has been depleted, losing an average of a foot per year and approaching 5 feet 6 yet, charlie flagg—like his creator kelton—is not as smitten with god or guns as conservative rural america would seem to be today. charlie seems at least as reverential toward the hill where the old comanche warrior bones were said to have been found as he was toward the judeo-christian god. he has sympathy for illegal immigrants and is willing to turn the other way despite u.s. border patrol agents’ efforts to prod him into being their eyes and ears. kelton himself has argued that cowboys are first and foremost pragmatists, concerned about affairs of the day. “he may be in church every sunday, or he may spend the sabbath getting past a hangover,” kelton wrote in a july, 2008 texas monthly article titled “true grit” (kelton 2008). he lamented that the term “cowboy” had taken a beating because of political uses that peaked during the administration of president george w. bush, having become synonymous with a “shoot-fromthe-hip” swagger. to wit: charlie does not carry a gun, which is more typical than not of working cowboys, kelton wrote in the same article texas water journal, volume 4, number 1 83the legacy of charlie flagg from beyond human controls, while in the latter it results from human behavior. nature can be perceived both as benevolent and, more often lately, malevolent; government can protect us from the vagaries of the environment or betray us in favor of policy that places the environment ahead of people; land and water can either be held in stewardship for god or used as resource for homo economicus; sustainability can be both wise conservation of the environment or slothfulness—as in the no-till farmer who may be looked down upon by some for letting his land “go to weeds.” such binary thinking has always characterized our human view of the environment. some early reports were overly optimistic about the potential for settlement on the great plains, writing that “. . . abundant columns of water would be found to gush out over this immense plain,” (marcou 1858 p. 30). they used terms for the aquifer such as the “land of underground rain,” “underground river or lake,” or “rainfall on demand.” conversely, other reports have been overly pessimistic, calling the land “non-irrigable” (johnson 1900/1901). part of the problem with honestly assessing the environmental future of the texas high plains (and the great plains overall) has been that the water lies underground. the geological phenomenon known as an aquifer was ruled to be abstract: “secret, occult, and concealed” by the ohio supreme court in 1861 12, and despite sophisticated metering and mapping technology today, there is still room for conjecture, myth, and hope (perhaps arbitraging uncertainty to one’s advantage) because the aquifer is hidden to our eyes. most farmers on the texas high plains would seem to accept hydrological studies of the aquifer decline; many have experienced it first hand in their shrinking well yields. still, the comment made by one farmer at a 2011 water hearing reveals that as with any hidden resource, it is possible there could be more bountiful, even divine, surprises: “farmers meet me in your fields,” the speaker exhorted. “repent and he will fill the aquifer back up” (hpuwcd march 2011 hearing, author’s notes). the difficulties of understanding just what the aquifer is came clear at a 2006 panel discussion at texas tech university on regional water issues, which opened with the comment from 1 water official: “a lot of people do not understand the ogallala aquifer” (2006 author’s notes). “it is not an underground lake, river, or water bottle.” in our moments of childlike candor, the water must be seen as a hidden and mysterious world of wonder. it is believed to be god’s bounty to give or withhold—just as in the old testament. in the late 19th and early 20th centuries railroad companies, newspaper editors, and other “boosters” appealed to the inner child of any potential settler who might be lured by spacious land above and 12 for a history of hydrological knowledge including the ohio supreme court case in 1861 known as frazier vs. brown and its precedence for texas water law, see mace et al. 2004. underground magical realms below. these boosters oversold the potential of the region to sustain agriculture; hence, old promotional postcards of plainview, texas made it look like a tulip field in holland or the garden of eden 13. legal rulings: clearing or further muddying the waters? one who is confused about the geology of an aquifer might be forgiven also for trying to make its complex legal aspects more manageable through strong narrative—especially after delving into the documents about texas water law. while laws about an individual’s rights to the water under his or her land would seem unambiguous at first glance, a closer look unravels too simplistic an understanding 14. wording from the 1904 texas supreme court rule of capture opinion cites english common law precedent that a property owner may dig for water and “apply all that is there found to his own purposes at his free will and pleasure”; any depletion of a neighbor’s water would be recognized as a loss, but not a legally actionable injury (east ruling as cited in potter p. 1-2). yet, as in many complicated legal matters dealing with water, the 1904 ruling left room for debate that continues into the 21st century. specifically, the supreme court did not rule out action in the case of “malice or wanton conduct” and also permitted the state legislature to regulate groundwater (potter 2004.). the 1904 decision did not clearly define what was meant by the right to capture water, or when the property owner had a “vested interest”—that is, a consummated right that cannot be taken away without compensation. thus, the 1904 ruling would seem to have violated a basic principle of common law, which holds that a person does not really have a right unless he or she has some means of seeking remedy when that right is threatened 15. the first such groundwater regulation came to texas in 1949 when the legislature passed a law allowing parts of the state to create underground water conservation districts (green 1973). two years later 13 regional counties formed the high plains underground water conservation district (hpuwcd) no. 1 after an election approving its creation, but not without 13 for this example see “typical irrigation well near plainview, texas 1937” at image-archeology.com http://www.image-archeology.com/plainview_tx.htm 14 as eckstein and hardberger (2009) note, even terminology that governs water law can seem inconsistent. they write, “one of the more troublesome aspects of water law can be the divergence often encountered between legal and scientific definitions, as well as among subfields of the law. although the vocabulary used by the various communities can overlap, the meanings ascribed by each to various terms and concepts may differ significantly.” 15 the principle dates back to roman law, often quoted as a positive assertion: ubi jus ibi remedium (“where there is right there is a remedy”). http://www.image-archeology.com/plainview_tx.htm http://www.image-archeology.com/plainview_tx.htm texas water journal, volume 4, number 1 84 the legacy of charlie flagg the future 17?” the high plains district (hpuwcd) has thus established what is known as the 50/50 rule, meaning that the goal for its portion of the ogallala in texas is to have 50% of the saturated thickness remaining in 50 years, which would be 2060. but other districts overlaying the common geological entity (gma #1) set different goals for the same time period, ranging from 40% to 80% (brauer 2009). the “desired future conditions” approach is seen by some observers as a fanciful but pointless attempt to introduce water conservation measures. in his 2006 book ogallala blue, author william ashworth quotes a nebraska-based geologist who is highly skeptical of a plan to preserve a percentage of the ogallala aquifer’s saturated thickness. such plans do not consider the composition of the aquifer at different levels, the quoted geologist argues, and it is composition that determines how much water can be accessed (ashworth). but ashworth then quotes a texas geologist and water official who acknowledges limitations to the 50/50 rule, yet argues that such efforts—even when involving “voodoo and bluff”—are a necessary first step in making stakeholders aware of the need to conserve groundwater (p. 227-228). since groundwater conservation districts began setting desired future conditions, legislative and judicial actions in texas have added more potentially confusing information that producers, municipalities, water districts and other stakeholders must sort through in their attempts to navigate water policy. first, at the behest of landowner lobby groups, the legislature addressed a nagging question in state water law— whether a property’s owner right to capture the water meant he or she owned that water before capture. if so restrictions on its use amounted to a legal “taking,” and this could lead to suits for damages. in 2011 texas gov. rick perry signed into law a bill that stated, “the legislature recognizes that a landowner owns the groundwater below the surface of the landowner’s land as real property” (sb 332 texas legislature online 2011). yet, further wording asserted that the new law did not “affect the ability of a district to regulate groundwater production” as established under previous law (sb 332). the texas supreme court weighed in similarly in a 2012 case brought by 2 property owners near san antonio who had 17 the law as written in the texas water code section 36.108, joint planning in management area (2007 section d) reads as follows: not later than september 1, 2010, and every five years thereafter, the districts shall consider groundwater availability models and other data or information for the management area and shall establish desired future conditions for the relevant aquifers within the management area. in establishing the desired future conditions of the aquifers under this section, the districts shall consider uses or conditions of an aquifer within the management area that differ substantially from one geographic area to another. some of the same resistance that appears in water policy narratives today, more than 60 years later 16. while some producers asserted that local control was preferable to state control, others remained vehement against any control beyond the property owner, tossing around invectives like “socialism” or humorous quips suggesting that asking whether one preferred federal, state, or local control was tantamount to asking which hangman you would prefer (green 1973). charlie flagg was not alone in 1950s texas by any means. subsequent state government actions regarding groundwater management have never fully resolved the underlying philosophical tension between private property rights and the need to conserve for the common good; individualism versus collectivism beats out a powerful story line that can be heard over the seeming noise of various laws, government agencies, and scientific models. producers or anyone looking for clarity run across conflicting messages from the texas legislature and the texas supreme court—confusion that is seen even in the terminology used and the alphabet soup of administrative hierarchies. for example, there is the distinction between a groundwater conservation district and groundwater management areas (gmas), where the former is defined by elected representatives of a political entity and the latter is a geologically based concept determined by aquifer boundaries. frequently, several political districts overlay the same aquifer, requiring joint planning among the political entities (lesikar et al. 2002). so we have the hpuwcd as a political entity stretching over 2 geological entities, or gmas; a small portion of the district covers 3 counties near amarillo that are within gma #1, while the main part of the district in the southern plains is within gma #2. until 1985 water underground was classified in government parlance as lying in “underground water reservoirs,” a misleading term conveying the old idea that the saturated sand was actually a large lake. the legislature in 1995 and 1997 established the gma concept, and in 2001 ceded full administrative control of these management areas to the texas water development board (mace et al. 2008). a subsequent law in 2005 added clout to the water board by mandating that conservation districts work with each other by 2010 to determine “desired future conditions” for aquifers: it is these 3 words that have generated much of the debate and resistance from some producers. setting desired future conditions means each district overlying an aquifer must agree on how much of that aquifer’s water should remain after a period of time in the future. as mace et al. write in their 2008 history of texas water law, “in essence, a desired future condition is a management goal that captures the philosophy and policies addressing how an aquifer will be managed. what do you want your aquifer to look like in 16 the hpuwcd #1 now comprises all or part of 16 counties. texas water journal, volume 4, number 1 85the legacy of charlie flagg challenged restrictions in how much water they could pump from edwards aquifer region. the court in edwards aquifer authority vs. day ruled in the property owners’ favor and to the delight of producer groups. the ruling held supported the vested interest claim, meaning a landowner would have to be compensated for any taking of his or her groundwater rights. critics have asserted that the ruling erodes the power of conservation efforts and has “sown confusion about the capacity of the state to regulate natural resources, while ignoring the science that ought to drive policy decisions” (torres 2012 p. 144). the abstract to a pair of 2013 commentaries on the implications of the day case makes clear, however, that the supreme court ruling has by no means settled the debate: the decision is complicated and, in places, seemingly contradictory. by opening groundwater management to regulatory takings, a door to another complicated area of law has been opened. although the day case answers some questions, others remain unanswered. and there are strong opinions on what day means and doesn’t mean (johnson and ellis 2013 p. 35). charlie flagg, the rancher in elmer kelton’s novel of the 1950s, would probably not be surprised at the complexity of the science and the shifting court rulings and laws that attempt to come to terms with texas water challenges today. toward the end of the novel charlie and another landowner are arguing with a federal auditor about changes in subsidy policies that cost charlie’s friend $30,000. “they can’t make regulations retroactive,” charlie says. “that’s against the united states constitution” (kelton 1973 p. 315). it is that u.s. constitution that conservative landowners opposed to new water laws invariably cite in public hearings regarding water district policies such as the 50/50 rule for desired future use. thus, we can turn our attention in the remainder of this article to such hearings, and to the narratives that a vocal group of landowners has voiced in the charlie flagg tradition. high plains hearings: “lobbing an incendiary rule book” if every story has a climax, as we often see in literature, the hpuwcd’s efforts to establish a desired future condition for its part of the ogalalla aquifer reached that climatic period in the spring of 2011. the district had drafted proposed rules toward the 50/50 goal that would extend its control beyond regulations established in the 1950s to govern the spacing required between water wells. according to the district’s monthly cross section newsletter for march 2011, the proposed amendments included designating “high water decline areas.” these were areas of the region that had seen greater declines than other areas and, thus, would merit tighter restrictions. other amendments required producers to meter their wells and report annually how much they had pumped and also established an “allowable production rate” for each well—a cap on how much each well could pump in a year (hpuwcd 2011). district officials set dates for 5 public hearings throughout march 2011, including the march 24 hearing in lubbock. the lubbock avalanche-journal’s account made the hearings seem more like a military campaign than a policy meeting. hundreds of people turned out, including, it would seem, the ghost of charlie flagg. on the other side were unlikely opponents, 5 board members—all of whom were “conservative, deliberative west texans with ties to agriculture,” according to reporter elliot blackburn (2011b). blackburn’s article asserted that “board members lobbed an incendiary 48-page rule book into their 16-county region about a month ago, immediately drawing the attention of growers, cattlemen and their suppliers who faced watching their livelihoods burn up under a dry texas sun” (blackburn 2011b). much of the anger from producers was directed at the proposal to impose greater restrictions on those in high decline areas. many argued that such restrictions would place these producers (who had bank loans initiated when there were no such restrictions) at a disadvantage in trying to make a living from their land. the following week the district withdrew the most contentious amendments. “we have heard you loud and clear,” then district manager jim conkwright was quoted in the newspaper account (blackburn 2011b). revised proposed amendments dropped all mention of high decline areas and, instead of immediate implementation, established a 4-year phase in period for pumping restrictions to reach the desired annual goal of 1¼ feet per acre. having diffused much of the anger, the board set 2 additional hearings on the revised amendments for june 27, 2011—one in dimmitt and the other in lubbock. district officials recorded these hearings and provided the author of this article a cd copy of the recordings after a written request. after listening and transcribing opening and closing statements from district officials and comments from each attendee, the author then looked for patterns among the comments—an informal kind of “coding” process that is typical in humanities and social science qualitative research. the coding process involved noting the stories told by the speakers or those implied in the speakers’ arguments. rhetoric and the narrative of overcoming the monster aristotle and other ancient rhetoricians developed taxonomies of how such arguments worked. rhetorical “proofs” persuaded either because the speaker or author marshalled texas water journal, volume 4, number 1 86 the legacy of charlie flagg “we’ve got 4 years to get there” when describing the annual pumping limitations. “this will be a learn and figure this thing out time period,” he added later, strongly establishing a setting in which the officials and producers were all together on the same learning path regarding conservation. this opening appeal designed to establish the ethos of district officials as partners rather than adversaries may have diffused some of the charlie flagg-like suspicion on the part of the producers, who nevertheless remained critical of the 50/50 policies even with the proposed changes. while much of that suspicion can be understood as inherent in an epic story of identifying and overcoming the monster, conkwright’s opening comments did seem to convince many producers that if indeed they were fighting a monster, it was not the hpuwcd. a speaker from hockley county who attended both hearings established his ethos as that of a good man, a private property owner, a christian, and “a constitutionalist” but also spoke as if the district officials were on his side in the battle to defend private property rights. “carroll, james, bob, bruce, jim,” the hockley county producer said, addressing district officials familiarly. “i will stand with you . . . in public, in private, with all my heart and with all my conviction and with all my energy [so] this board can vote no and resist implementing these rules upon free texans” (june 27, dimmitt). at the second hearing, the speaker clearly identified the monster he saw threatening texas farmers as that of “socialists,” “statists,” “collectivists” in government who are attempting to “perform this horrid act in the name of conservation….” (june 27, levelland). the speaker even further villainized the monster by referring to it as “national socialist,” which of course was part of the official name of hitler’s party during the third reich. invoking another war image—this from the 19th century war of texas independence from mexico—the speaker said, “i wanted to let you know that we as texans are at an alamo moment” (june 27, levelland). a speaker from lubbock who addressed both hearings invoked an archetype that is common in overcoming the monster narratives, that of the monster as a shapeshifter or a trickster who disguises himself to hide his nefarious intentions (e.g., the wolf in sheep’s clothing). he first asserted that the private property owner was a better steward of water and other natural resources than was a “tyrannical” government. he then added, “it is totally unnecessary to implement a fascist form of government upon the people of texas under the guise of preserving water for those 50 years from now” (june 27, levelland). in addition to invoking the trickster enemy story line, this comment also contained the rhetorical commonplace argument of dissociating appearance from reality by asserting that what may appear to be conservation is really a government power play. convincing facts (arguments of logos), because he or she exhibited a trustworthy character (arguments of ethos), or because he or she excited the passions of the audience (arguments of pathos). rhetorical studies consider figures of speech that affect meaning, such as metaphor; stylistic moves that make speech or writing memorable (such as repeating the opening consonant in series of words); and commonplace arguments that recur in different cases, such as the argument that providing for the future residents is a necessary goal in any water policy (e.g., “we need to save water for our grandchildren”). oftentimes commonplace arguments such as the one about saving for grandchildren are mini-stories that are expanded in novels and songs into grand epics with a moral. narrative, as we have seen, is the telling of stories, cause and effect relationships in time. hence, stories can be seen as a kind of rhetorical proof, perhaps revealing one’s character or ethos to be commendable and therefore believable, or as commonplace argument, perhaps forecasting that consequence y is likely to follow x because it did so in the story one is telling. modern rhetorical scholar jimmie killingsworth argues that narrative is a kind of rhetorical appeal that convinces by showing the audience members how they can identify and associate with the events the speaker or writer tells of (killingsworth 2005). we have already seen how the various ways of knowing the aquifer, from the hydrological to the legal, all have an element of story telling and persuasion. as would be expected, such persuasive stories also are easy to spot in transcripts of hpuwcd june 27, 2011, hearings related to the ogallala aquifer. at those hearings speakers were each limited to 3 minutes to present their stories and arguments; some used prepared notes and others appeared to speak from the cuff. some spoke at both hearings. before each hearing hpuwcd manager jim conkwright opened with about 15 minutes of background, explaining the changes that district officials had developed since the initial 50/50 proposal was floated and shot down in march. the most obvious rhetorical move in conkwright’s opening words was to establish the ethos of the board and paid employees as being reasonable and responsive to suggestions. conkwright said: i’ve already discussed the public meetings. we felt like these were of great benefit to the district and i’ve heard back from many of you who say you feel like the changes that were reflected in what you are here to testify on today show that the board and staff heard and incorporated those thoughts and ideas into those amended versions of the proposed rules (june 27, dimmitt). the manager’s opening comments at both hearings also established a sense that district officials and producers were partners rather than adversaries in water policy. conkwright frequently used the pronoun “we” when addressing the groups, as in texas water journal, volume 4, number 1 87the legacy of charlie flagg this speaker from lubbock revealed either an instinct or training in classical rhetorical argument techniques, including clever word plays and figures of speech. “meters, limits, restrictions, grace periods, limits to report, adjustments, penalties, fines, well shut downs, spot checks—what country do we live in?” he asked at the dimmitt hearing. this opening comment employed rhetorical asyndenton, the stacking of nouns without intervening conjunctions, which suggests a wearying and overwhelming effect from many actions—as if the monster systematically laid waste the freedoms of area farmers. the rhetorical question at the end also added emphasis, allowing the hearer to fill in an answer that this country could not be the united states. a farmer from hockley county argued at the levelland hearing against proposed rule changes by combining the commonplace argument of consequence—that allowing x to occur will lead to y—with the related narrative of stopping the monster (in this case regulation) before it became invincible. “there’s nothing here to stop the water rules from coming in and becoming even more oppressive in the future,” he said. “when you make laws, regulations, a lot of times it’s like taking a prescription medicine,” the speaker said. “there’s unintended consequences.” he then repeated the phrase “you’re going to force people. . .” followed by examples, as in “you’re going to force people out of some crops they have produced for years” (june 27, levelland). often the monster is an enemy from outside the tribe, like the philistine giant goliath who threatened israel in the old testament. a speaker from lamb county at the dimmitt hearing evoked the outside enemy image of “newcomers” to the community, people who use services such as the hospital but “don’t pay their bills.” he contrasted these newcomers with people like himself, those whose ancestry in the regions dates to the 19th century, those who gave land and money for roads, highways, railroads, schools, and churches (june 27, dimmitt). another version of the outside invader is oil companies who pump water into the ground for fracking subterranean rocks to free their oil. “if the water hogs want war, we’ll give them war,” the same speaker said (june 27, dimmitt). the relationship between oil companies and farmers in texas is interesting and complex. it is not uncommon to see oil pump jacks mixed in among the cotton fields, farmers receiving extra income from the leases. politically, oil workers and farmers may be aligned in their distrust of environmentalists in government, but they can be at odds over such resources as water. such suspicion dates to the early 20th century when some farmers across the country resisted the incursion of automobiles and tractors into their horse drawn lifestyles. in kelton’s the time it never rained charlie flagg responds “dubiously” to a suggestion that perhaps the drought-parched land would be better used for oil rigs than ranching. he says: maybe, but you pay a price for it. an oilfield scars up the land. and them oil people, they don’t care much about the land, most of them. they’re only interested in what’s under it. they’ll use up your water or leave it polluted with salt if you don’t watch them. there’ll come a time in this country when a barrel of water is worth more than a barrel of oil (1973 p. 305). another speaker at the levelland hearing offered a variation on theme of big business as the monster by pointing to xcel energy—a utility holding company based in minnesota that provides power to 8 states, including much of the texas panhandle and eastern new mexico. the speaker alleged that xcel was using water without care for steam generation and cooling at its lamb county power plants. “they’ll still be able to pump all they want,” the speaker said. “i mean, i know everybody wants electricity. i want electricity, too. but this is everybody’s water. it’s not just their water” (june 27, levelland). a representative of xcel countered that the company uses just 4% of the county’s groundwater and has various technological systems in place for reclaiming and reusing water. a theme that has been present in american history since the revolution is that of conflict between urban and rural interests. often the big city is demonized as a monster looming over much lower populated, vulnerable rural areas. one speaker at the levelland hearing echoed a common complaint that residents of lubbock and even the city government itself is careless, allowing water to run down the streets and watering in the heat of the day. in west texas this urban versus rural story line reached its climax in the spring before these hearings. that’s when oil businessman and panhandle landowner t. boone pickens backed off his proposal to sell water from under his land to san antonio or dallas, 2 cities several hundred miles to the southeast. instead, a deal was reached to keep the water for smaller rural panhandle municipalities as pickens agreed to sell his rights to the canadian river municipal water authority (blackburn 2011a). certainly this agreement helped diffuse much of the anger toward pickens, and resolved much of the story line that had him as the monster. uneasiness among rural texans toward the growing urban islands in their midst has led to subtle twists in the overcoming-the-monster story line, particularly in how that story accommodates the rugged individualist character. as we have seen, the 1904 texas supreme court introduced what might have been the 20th century’s mantra of muscular individualism, “the rule of capture,” into texas parlance; that phrase on its own, however, does not convey any value judgment for the 21st century on how large a capturing entity might be. indeed, the law has been paraphrased half jokingly in texas lore as “the law of the biggest pump.” texas water journal, volume 4, number 1 88 the legacy of charlie flagg voted unanimously for the 1-year extension through the end of 2014; the vote came after all but one of a dozen speakers rallied either for the extra time or for doing away with the 50/50 policy permanently. speakers, including some from the water rights coalition, reprised themes of property rights and “water grabbing” government officials in the state capital, austin. “i think dfc (desired future conditions) is linguistic trickery,” one landowner said. “desired means mandatory”(hpuwcd november 2013 hearing, author’s notes). the landowner who did not want the moratorium extended likened the ogallala’s condition now to an old cattle trail chuck wagon carrying a water pail, with cowboys dipping more than their fair share— thus, jeopardizing the entire journey. clearly the 50/50 debate and the colorful story lines that people use to understand it will continue for the foreseeable future. of course, it must be emphasized that the comments quoted in this article came from just a few of the hundreds of people who attended the various hpuwcd hearings. many producers seem at peace with the ruling. yet, the persistence of these kinds of comments at such hearings reveals that elmer kelton’s fierce individualist charlie flagg is still very much alive in west texas. charlie does not sound quite as angry in kelton’s novel of 1950s texas as the outspoken lubbock-area cotton farmers do—perhaps only because he boycotted such government meetings. but no doubt he would recognize the frustration felt by such rebels. paradoxically, while anti-government attitudes remain strong in rural texas today, so does the willingness to take federal subsidies for crop insurance and other such assistance. texas ranks number one in such subsidies—$27.3 billion worth between 1995–2012, according to u.s. department of agriculture figures gathered by the washington d.c.-based environmental working group. texas received the largest total subsidy amount for the period of any state, with other farm belt states like iowa and illinois coming close behind (ewg 2013) 20. the coexistence of anti-government attitudes with acceptance of subsidies at least among some producers exhibits a key finding in this research. all of us embody multiple perspectives that at times are fragmented and paradoxical, modulated by expediency, pragmatism, and the need for economic well-bemer south plains underground water conservation district director jason coleman as the new manager. 20 the issue of farm subsidies increasingly has become a topic of debate in regional and national politics. some argue that they often are an unfair entitlement to already wealthy farmers and should be eliminated. others counter that such subsides are necessary to ensure the stability of the u.s. food and fiber supply given unpredictable weather and economic variables. the debate brought challenges to texas gov. rick perry’s credentials as a charlie flagg brand of fiscal conservative in his bid for the 2011 republican presidential nomination when news media reported that he had taken $9,624 from the conservation reserve program between 1991 and 1998—admittedly a small, but symbolic amount (ratcliffe 2011) perhaps not surprisingly, then, the rule of capture itself has been characterized as a kind of monster—the mythological greek hydra, a water snake with many heads that has the power to regenerate those heads when severed. in a scholarly article, eric opiela—a karnes city, texas lawyer and candidate for the 2014 texas agriculture commissioner republican primary—called the rule of capture “outdated,” in part, he argued, because it makes distinctions now disproven between surface water and groundwater, and because it was enacted before the growth of large cities and their big pumps. evoking the shapeshifter and trickster image he concluded that “the rule of capture has grown from a simple tort preclusion doctrine into a two-headed hydra that also purports to recognize a property right in groundwater” (opiela 2002 p. 13). undoubtedly this theme (cities as monsters) that is underlying the texas agriculture commissioner race in late 2013, and which appeared briefly in the 2011 high plains water district hearings, will continue well into the 21st century as a compelling story line. conclusion: good guy-bad guy stories will persist in water policy three weeks after the hpuwcd hearings in dimmitt and levelland, the board of directors voted to approve the amended 50/50 management plan for its portion of the ogallala aquifer. the vote at the july 19, 2011 board meeting was 4-0 in favor of the plan. the following year, in august 2012, a group calling itself “protect water rights coalition” mailed out a newsletter with the headline “taking property is not conservation,” accusing the water board of being dysfunctional and announcing that the protest group had sought legal counsel (protect water rights 2012) 18. the water district followed with a post card titled “rumor vs fact” that said nothing had changed from the july 19 vote—countering rumors that the district would not enforce the new policies (hpuwcd no date). but the following year, at an october 8, 2013 meeting, the hpuwcd directors agreed to hold a hearing before the next board meeting to consider an additional 1-year moratorium on penalties for landowners who did not install new wells (musico 2013b) 19. at that november 12, 2013 meeting, they 18 the water rights coalition has since established an internet presence with a web page whose mission as stated is “fighting non-compensated government takeover of private property”(protect water rights coalition 2013); the group also has a facebook page with links to various media interviews. 19 composition of the hpuwcd board of directors by 2013 had changed substantially from the 2011 board that passed and amended the 50/50 rule. two of the 5 directors had resigned and another 2 were defeated in the 2012 election. turmoil over the new district water restrictions and metering requirement likely contributed to the turnover, according to lubbock avalanche journal reports (young 2013). additionally, long -time district manager jim conkwright retired in the summer of 2013; the board chose farmer and fortexas water journal, volume 4, number 1 89the legacy of charlie flagg ing. knowledge of water and the aquifer is derived from multiple domains (science, history, religion, law, etc.). but as we have seen in this article, all these types of knowledge of natural phenomena and their impacts on people contain stories with plots. some of the most powerful of these stories are archetypal accounts of good and bad, cause and effect. an account of a natural phenomenon or event, such as drought, that blames identifiable groups (cities, oil drillers, government employees) may not work for consensus building, but accounts that downplay human responsibility may be ineffective. the plot does not convince us; sadly, we seem to need a human enemy, not some vague enemy like drought, or worse, an enemy that is the child of all of us, like climate-change gasses. there is always an urge to find the bad guy. the need for good and bad characters may be strongest in cultures with a strong monotheistic religious background, where creating a shared identity among god’s people also requires an outside group that is ungodly. such in-group– out-group identity formation is especially necessary in areas of scarce resources (e.g. water), according to scholar of religion regina m. schwartz. in the curse of cain: the violent legacy of monotheism she asserts that the notion of a biblical covenant between god and his people “has left a troubling legacy of the belief in land entitlement, one that continues to ghost territorial disputes” (schwartz 1997 p. 42). when west texas farmers and ranchers argue that they have worked the land for more than 100 years only to face onerous restrictions now, they in effect are arguing that government policy is threatening their covenant with god. the federal or state government is easily portrayed as the enemy or monster at large—even the antichrist of biblical prophecy. robert fuller in his book, naming the antichrist: the history of an american obsession asserts that millions of americans hold an apocalyptic worldview that ultimately means the triumph of believers over the out-group. “because they tend to view their nation as uniquely blessed by god, they have been especially prone to demonize their enemies,” fuller writes (1995 p. 4-5). elmer kelton’s charlie flagg did not share such a strong identity with biblical prophecy as schwartz and fuller are identifying. he was much more the pragmatist. like many farmers he might pray for rain, but also would work hard to ensure that at least some of his stock survived if god did not oblige. his suspicion of government agriculture programs and pity for those who took such aid was perhaps less borne out an apocalyptic worldview and more out of the pragmatic belief that no one can better care for his or her resources than the person who owns them and depends upon them. still, kelton as a west texan embodied the strong protestant ethic that dominates the region. perhaps because of this strong ethic evident in his prose, not everyone has been smitten with kelton’s novel. the author of this article has encountered several people including some students whose response to the novel was more in line with that of university of texas literary scholar don graham, who has dismissed kelton’s writing and themes as being overly steeped in calvinistic self-denial, a style of “staid rectitude” (graham 2011 p. 50). one colleague of the author of this texas water journal commentary article put the book down after a few pages, offended by charlie flagg, who he said, reminded him too much of his own “authoritarian daddy.” yet, in trying to forge some kind of consensus about water conservation and other environmental issues in texas, it is vital to consider attitudes that are admired as part of the texas rural heritage. such attitudes may seem rife with paradoxes, streaked with stubborn individualism. thus, we can look forward to many legal and political battles over ever-scarcer water resources and over policies such as the 50/50 rule that aim to preserve some of that water in the ogallala aquifer. and we can wonder with some apprehension whether such individualism is sustainable for texans, indeed for the millions worldwide who suffer from lack of water and from other environmental deprivations. still, we cannot ignore those attitudes or fail to respect them, or fail to take into account the very human tendency to translate complex and often contradictory knowledge from multiple domains into a less confusing story line. those involved in water science, law, and policy who are practiced and fluent in the specialized language and knowledge afforded by their fields may at times be frustrated when trying to introduce their expertise into the public—especially when that public’s economic livelihood and traditions are challenged by the specialized expertise. such threats to one’s traditions inevitably will evoke anxiety, and anxiety is a breeding ground for narratives involving good and evil—the battle against monstrous outside forces. the resulting chain of responses to threats is universal in human society; no one of us is immune to this “fight or flight” instinct. therefore, the most penetrating lesson of this research would seem to be that anyone involved in water policy or any other policy, for that matter, must always be aware that specialized knowledge will often be heard in a quite a general way—a familiar story line that places the hearer in a situation that requires all of his or her wit and wherewithal to prevail. often such stories borne out of anxiety will fade over time and the realization that regardless of what stories one follows, the science is unequivocal—in this case, that the ogallala aquifer is being depleted rapidly. cooperation and conservation are necessary to preserve at least part of it for the next generations. for now the hpuwcd’s willingness to hold repeated hearings on the same water policy issues would seem to be the most prudent course of action. one would have to think that the tenacious charlie flagg ultimately would learn from texas water journal, volume 4, number 1 90 the legacy of charlie flagg fuller r. 1995. naming the antichrist: the history of an american obsession. new york (new york): oxford university press. 232 p. graham d. 2011. state of minds: texas culture & its discontents. austin (texas): university of texas press. 183 p. green de. 1973. land of the underground rain. austin (texas): university of texas press. 295 p. herman d. 2002. story logic: problems and possibilities of narrative. lincoln (nebraska): university of nebraska press. 477 p. 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texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute volume 9, number 1 2018 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. cover photo: sunrise over coastal bend bays & estuaries program land. ©2017 john reuthinger. see winning photos at wildlifeinfocus.org http://texaswaterjournal.org http://wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, may 21, 2018 pages 50-68 abstract: groundwater is a strategic economic asset, and recent texas supreme court decisions have strengthened private ownership rights in groundwater. despite the economic and political stakes, debate on how to actually value groundwater has been sparse. in response, this article sets forth seven methods of economically valuing groundwater in texas and uses case studies and hypotheticals informed by real data to assess the valuation techniques’ strengths and weaknesses under a range of conditions. in addition, the analysis shows how in practice, multiple valuation methods can be combined to render the most credible valuation range for a particular groundwater asset. readers will also see how to marshal a wide range of publicly available data resources—including actual water sale and lease contracts—and analytically mesh them to arrive at a defensible valuation range for water assets under various conditions. these methods can help value water more accurately, create opportunities for unlocking additional economic value, and help manage groundwater resources more effectively for the benefit of future generations. keywords: groundwater, valuation, resource stewardship, capitalization economic valuation of groundwater in texas 1center for energy studies, baker institute for public policy, rice university, houston, texas *corresponding author: gabe.collins@gmail.com texas water journal, volume 9, number 1 gabriel b. collins, j.d.1,* citation: collins gb. 2018. economic valuation of groundwater in texas. texas water journal. 9(1):50-68. available from: https:// doi.org/10.21423/twj.v9i1.7068. © 2018 gabriel b. collins. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:gabe.collins@gmail.com https://doi.org/10.21423/twj.v9i1.7068 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 9, number 1 51economic valuation of groundwater in texas terms used in paper short name or acronym descriptive name asfmra american society of farm managers and rural appraisers dcf discounted cash flow ebitda earnings before interest, taxes, depreciation, and amortization npv net present value saws san antonio water system tds total dissolved solids twdb texas water development board introduction groundwater in place has real, substantial, and quantifiable economic value in texas. one of this article’s core goals is to describe and analyze the existing set of methodologies that can be used to quantify a reasonable and defensible value range for groundwater assets across the state. this analysis draws directly upon the author’s recent experience serving as a valuation expert in a montgomery county groundwater proceeding.1 it also builds upon the analytical foundations laid by charles kreitler and bruce darling in a 1997 paper titled value of groundwater, two subsequent analyses by darling in 2007 and 2009, and most recently, a paper written by ed mccarthy and charles porter for a continuing legal education course in late 2016.2 the groundwater valuation methodologies addressed in this 1mr. collins served as a groundwater valuation expert in the proceeding of petition of the cities of conroe and magnolia, texas appealing desired future conditions of gma 14 adopted by lone star groundwater conservation district, soah docket no. 958-17-3121, which was settled in november 2017. 2charles w. kreitler and bruce k. darling, “value of ground water,” presented at the seventh annual conference on texas water law, 13-14 november 1997, austin, tx; bruce k. darling, “groundwater in texas: marketability and market value,” the water report, 15 july 2007; bruce k. darling, “the rule of capture, changing perspectives on water management in texas, the tragedy of the commons, and developments in the valuation of groundwater,” conference paper, april 2009, doi: 10.13140/ rg.2.1.1516.3047; edmond r. mccarthy jr. and charles r. porter jr., analysis are globally relevant and have been employed in other jurisdictions around the world, including australia, namibia, and spain. groundwater valuation is location-specific and fact-intensive. a diverse set of tools helps evaluators choose methods most appropriate for the conditions and factual realities inherent in the asset or set of water assets they are assessing. multiple valuation tools also help address the reality that, in some instances, water is the final good sold, though in other cases, such as farming or industrial uses, water is an essential intermediate input. weather, water demand, hydrogeology, and other factors vary widely across texas. as such, parties valuing water assets must make many judgment calls and assumptions. but this should not discourage the valuable contribution of developing and promulgating a common set of frameworks for pricing water. being able to value water in place is the gateway to facilitating a range of commercial and financial transactions that can unlock additional economic value from texas groundwater resources. indeed, if sufficiently protected by tract size, correlative rights withdrawal restrictions, or lease pooling, groundwater in place that underpins a cash flow-generating project can potentially also become collateral for reserve-backed lending. furthermore, better groundwater valuation will facilitate fairer resolution of disputes. for instance, groundwater valuation in place is important for assessing the value at stake in cases where groundwater owners are litigating against groundwater “valuation of water rights,” 2016 texas water law institute, https://utcle. org/practice-areas/index/practice_area_id/26. doi: 10.13140/rg.2.1.1516.3047 doi: 10.13140/rg.2.1.1516.3047 https://utcle.org/practice-areas/index/practice_area_id/26 https://utcle.org/practice-areas/index/practice_area_id/26 texas water journal, volume 9, number 1 economic valuation of groundwater in texas 52 conservation districts, whose regulatory actions have impaired water owners’ access to, and use of, their natural capital assets.3 texas courts are also seeing an increase in cases where one party believes that physical actions taken by another have somehow impaired its ability to access groundwater it owns.4 this article aims to lay down foundational methods and parameters and does so fully acknowledging that iterative improvements to the techniques discussed are inevitable as commercial transactions occur, more scholars engage the subject, and more groundwater cases wind their way through the courts. introduction to principal valuation methods there are seven core methods for evaluating the economic value of groundwater in texas: (1) comparable sales (including market surveys), (2) avoided cost, (3) land value method, (4) residual value, (5) income capitalization, (6) net present value valuation, and (7) conservation value. ultimately, useful valuations of groundwater incorporate a number of elements, each of which contributes to the asset’s worth. these include, but are not limited to, (1) the capital and recurring operational costs of 3see, for instance: edwards aquifer auth. v. bragg, 421 s.w.3d 118 (tex. app.—san antonio 2013, pet. denied); forestar [usa] real estate group, inc. v. lost pines groundwater conservation district, et al., no. 15,369, texas dist., lee co.; petition of the cities of conroe and magnolia, texas appealing desired future conditions of gma 14 adopted by lone star groundwater conservation district, soah docket no. 958-17-3121. 4see, for instance: edwards aquifer auth. v. day, 369 s.w.3d 814 (tex. 2012) (landowners own groundwater beneath their tract as real private property and have an interest in groundwater that is compensable under the takings clause of the texas constitution); coyote lake ranch, llc v. city of lubbock, 498 s.w.3d 53 (tex. 2016), reh’g denied (sept. 23, 2016) (accommodation doctrine applied to the relationship between as owner of severed groundwater estate and surface estate). extracting water; (2) the costs of transporting the water to market; (3) treatment costs (when applicable); and (4) economic benefits that may be conferred simply by having a certain volume of water in place in an aquifer. figure 1 outlines the core methodologies and highlights their key characteristics, while the accompanying discussion very briefly outlines the fundamental parameters of each concept. subsequently, this article will analyze each method in greater detail, offer case examples where the methods have been—or could be—applied, and evaluate the strengths and weaknesses of each. groundwater valuation methods summary 1. comparable sales. this method entails examining transactions where groundwater was bought or sold to see what values are feasible for a water sale in the area of interest. for example, if groundwater from the carrizo-wilcox aquifer in burleson county is purchased by the san antonio water system (saws) at a royalty rate of $460 per acre-foot to supply san antonio, water from an equally productive part of the aquifer nearby would likely be worth at least approximately as much to austin, college station, or another municipal consumer. 2. avoided cost. this method values groundwater by seeing how much money a consumer could save by obtaining water from an alternative, cheaper source. consider the following simplified hypothetical: if a city currently purchases water from one source for $1,000 per acrefoot but could obtain water from an alternative groundwater source for $700 per acre-foot, the avoided cost value of water from the second source would be up to $300 per acre-foot. any avoided cost relative to the baseline supply source would be a net economic benefit to the consumer, all else held equal. figure 1. overview of key groundwater valuation methods. texas water journal, volume 9, number 1 53economic valuation of groundwater in texas aquifer depletion might impose. in addition, because groundwater is private property in texas, groundwater conservation programs should compensate water owners for idling their natural capital assets. in-depth analysis of principal valuation methods this section explores each of the seven principal groundwater valuation methods in depth, with a detailed examination of their respective strengths and weaknesses. it also demonstrates how valuation methods often “cross pollinate” in practice and how a proper valuation is frequently a multi-method, if not multi-disciplinary, endeavor. the author also shares some methods he has used to obtain transaction data and a set of adjustment factors that can help analysts compensate for differences in local conditions when assessing groundwater assets. finally, the author also includes data from sample transactions showing how groundwater has been priced in recent years across texas in land purchases, groundwater estate sales, and water leases. method 1: comparable sales comparable sales valuation means examining transactions where groundwater was bought or sold and seeing what the prices were for those transactions. if available, recent sales or leases of comparably situated water rights or water resources in place typically offer the most dependable metric for determining the value of water resources in that location. comparable transaction valuations are predicated on the principle that the “fair market value of property” denotes “the amount that a willing buyer, who desires but is not obligated to buy, would pay a willing seller, who desires but is not obligated to sell.”5 this fundamental idea of fair market value is also enshrined in the texas water code, which states in relevant part that: “[w]henever the law requires the payment of fair market value for a water right, fair market value shall be determined by the amount of money that a willing buyer would pay a willing seller, neither of which is under any compulsion to buy or sell, for the water in an arms-length transaction and shall not be limited to the amount of money that the owner of the water right has paid or is paying for the water.”6 [emphasis added] in other words, the water right’s or asset’s value should be based on actual market conditions as dictated by supply and demand and other factors and not be determined simply on the 5op. tex. attn’y gen. no. lo-98-082 (1998). 6tex. water code ann. § 11.0275 (west). 3. land value method. the land value method is an inductive approach that derives water values by comparing transactions of irrigated and non-irrigated farmland. for example, if dry cropland in an area sells for $1,000 per acre and irrigated cropland in the same zone sells for $2,000 per acre, this would suggest that the water associated with the land is worth $1,000 per surface acre. this technique often crosses over with the comparable sales method and can be combined with data on the thickness of water-bearing layers to actually develop a price per saturated foot for water in place. 4. residual value. this method helps assess how much a consumer can pay for water. it looks at how much income someone makes from a water-dependent activity such as growing hay, subtracts the costs, and divides the remaining net income by the amount of water needed. if a farmer’s income for growing corn is $100 after costs and she needs 1 acre-foot of water to grow that corn, then the residual value of water to her is $100 per acre-foot because in theory that’s the most she could pay for the water from another supplier (or the highest extraction cost she could afford for self-produced water) and still break even. 5. income capitalization. this method also examines capacity to pay for water. it converts the income generated by an asset into an estimate of its overall value. a farm whose annual net operating income is $100 with a capitalization rate of 10% would have an annual capitalized crop value of $1,000 [$100÷10%]. for water-intensive assets such as farms, it can also yield a value for the water input by taking the capitalized income value and dividing it by the volume of water needed to produce it. if the farm’s crop needs 10 acre-feet of water, the water would be worth $100 per acre-foot to the farmer [$1,000 in capitalized income per year ÷ 10 acre-feet per year to generate that income]. 6. net present value. this method focuses on assessing an asset’s current value based on its likely future cash flows. net present value (npv) analyses are fundamentally predicated on the time value of money—in other words, the concept that a dollar today is typically worth more than a dollar tomorrow. in practice, buyers and sellers of oilfield water supply facilities, farms, and other cash-generating water investments often use an npvbased approach to value their assets. 7. conservation value. the prior four core methods center upon the use value of water. conservation value, in contrast, more fundamentally rests upon the “existence” value of water. determining conservation value can require a multi-faceted analysis that considers factors such as ecosystem services value and the costs that texas water journal, volume 9, number 1 economic valuation of groundwater in texas 54 basis of compensating a water owner based on what they themselves originally paid for the property. to yield a true “fair market value,” the transaction should occur between parties that are operating under normal commercial conditions and are not facing any type of financial, regulatory, or other duress that could skew the terms of the deal. water valuators using comparable sales methodology are in good company. for a cross-industry comparison, consider that national football league and national basketball association player contracts involve very large amounts of money, the market for talent is relatively illiquid, and precise transaction terms are often kept confidential.7 notwithstanding these challenges, many player agents and teams use the terms and economic parameters reflected in prior agreements as a baseline to inform new contractual negotiations for player signings each year during the free agency period where total transaction value turnover approaches $2 billion per league.8 on an even larger scale, reporting of comparable transaction prices—including bids and offers where a transaction was not necessarily consummated—provides the basis for indices used to price commodity contracts in markets for natural gas, petrochemicals, and crude oil.9 combined trade turnover in markets priced off indices from platts, argus, and other price providers can exceed $300 billion per year.10 as such, using comparable sales transaction data to value and price groundwater in texas is highly defensible and will become more so as additional data from sales and leases become publicly available. obtaining comparable transaction data water marketing in texas is generally opaque, and deal terms are often kept private. actual signed water supply and purchase agreements and judicial rulings and settlements, which collectively generally offer the highest fidelity source of information, can be obtained through a number of channels, including (a) open records requests to municipalities, their water suppliers 7https://www.cbssports.com/nfl/news/agents-take-the-top-10-nfl-contracts-from-players-side-of-the-negotiating-table/. 8see, for instance: “2015 nfl salary cap and adjusted team positions,” nflpa, 24 march 2015, https://www.nflpa.com/news/all-news/2015-nflsalary-cap-and-adjusted-team-positions#update; as well as anthony chiang, “nba free agent spending spree up to $1.8 billion in total contract value,” palmbeachpost.com, 2 july 2016, http://heatzone.blog.palmbeachpost. com/2016/07/02/nba-free-agent-spending-spree-up-to-1-8-billion-in-totalcontract-value/. 9see, for instance: “methodology and specifications guide: americas petrochemicals,” s&p global platts, updated april 2017, https://www.platts.com/im.platts.content/methodologyreferences/methodologyspecs/americas-petrochemicals-methodology.pdf. 10terry macalister, “price reporting agencies cut out of the loop,” the guardian, 8 may 2013, https://www.theguardian.com/business/2013/ may/08/price-reporting-agency-boycott. (such as saws or alliance water), and other public entities that own or regulate groundwater resources; (b) discussions with private water sellers, purchasers, and parties such as county extension agents and others who may have access to deal flow information; (c) judicial decisions; and (d) for the san antonio area, periodic water rights purchase solicitations by saws.11 in addition, surveys can be a relevant technique for helping to assess value along several portions of the groundwater value chain, including sales prices, production costs, and transport costs. the most reliable information is likely to come from parties who are already either participating in the market, such as oilfield water sellers, or farmers, who are actively preparing to do so. in a nutshell, these parties either (1) have already made the necessary capital investments in requisite physical infrastructure and permits and/or (2) are geographically situated near water demand and can credibly enter the market on short notice. simply asking landowners “what would you sell or buy water for?” risks placing them in a situation where their response may lack the anchoring context of knowing the value of water-dependent outputs, water extraction costs, and other important information that helps inform the ultimate value of water in a given area for a particular application. municipal water sourcing data tends to be more sparse than that from the oilfield but still useful. municipalities typically do not enter into water sales and purchase transactions as frequently as oilfield parties do, but when they enter the market, the volumes of water and dollar amount of capital at stake are often enormous. many of these agreements have terms of at least 30 years, which forces the parties to thoroughly contemplate future supply/demand conditions, hydrological risks, capital market conditions, and other factors. as such, if the water appraiser is weighing the value information transmitted from short-term oilfield supply deals in a given area versus longer-term, higher volumes, and more capital-intensive municipal deals, the municipal deals arguably hold a greater validity over a longer period for baseline valuation assessments. judicial rulings while not “sales” in the traditional sense, court rulings offer a number of unique factors that can make them useful barometers of groundwater value. first, judicial opinions are matters of public record, which makes them broad and transparent benchmarks that are far more accessible than most water sales and purchase contracts. second, each party to litigation often faces enormous financial stakes and has commensurately high incentives to provide as powerful of evidence as possible to sup11mccarthy and porter, “valuation of water rights,” 2016 texas water law institute, https://utcle.org/practice-areas/index/practice_area_id/26. https://www.cbssports.com/nfl/news/agents-take-the-top-10-nfl-contracts-from-players-side-of-the-negotiating-table/ https://www.cbssports.com/nfl/news/agents-take-the-top-10-nfl-contracts-from-players-side-of-the-negotiating-table/ http://heatzone.blog.palmbeachpost.com/2016/07/02/nba-free-agent-spending-spree-up-to-1-8-billion-in-total-contract-value/ http://heatzone.blog.palmbeachpost.com/2016/07/02/nba-free-agent-spending-spree-up-to-1-8-billion-in-total-contract-value/ http://heatzone.blog.palmbeachpost.com/2016/07/02/nba-free-agent-spending-spree-up-to-1-8-billion-in-total-contract-value/ https://www.platts.com/im.platts.content/methodologyreferences/methodologyspecs/americas-petrochemicals-methodology.pdf https://www.platts.com/im.platts.content/methodologyreferences/methodologyspecs/americas-petrochemicals-methodology.pdf https://www.theguardian.com/business/2013/may/08/price-reporting-agency-boycott https://www.theguardian.com/business/2013/may/08/price-reporting-agency-boycott https://utcle.org/practice-areas/index/practice_area_id/26 texas water journal, volume 9, number 1 55economic valuation of groundwater in texas port their position. third, while a judicially driven transaction is compelled, the analysis underlying it draws upon a robust debate and information discovery process that is more likely than not to render its value reasonably reflective of actual prevailing market conditions. the body of judicial and jury decisions, along with settlements on groundwater value disputes in texas, remains relatively small but already includes at least two prominent case examples. the first, bragg v. edwards aquifer authority, centered on a damage claim arising from the edwards aquifer authority’s decision to deny groundwater pumpage rights to a pecan farming couple in medina county. after approximately a decade of litigation, a medina county jury awarded the braggs $2.5 million in damages, finding that one orchard was worth $1.67 million with full access to edwards aquifer groundwater but only $300,000 if water access was limited to 120 acre-feet per year, as the edwards aquifer authority desired.12 the jury also found that a second pecan orchard was worth $1.18 million with full access to the necessary water volumes but had no value as a commercial pecan farm without water rights. the bragg valuation relies heavily upon the cash-generation potential of agricultural land with and without access to water. the second case, state of texas v. 7kx investments, involved the condemnation of approximately 28 acres of property for the construction of a rest stop alongside interstate 35 in bell county, near temple. the state offered to pay approximately $500,000 for the land it sought to acquire. however, this offer proved unacceptable to the owner, 7kx investments, which had drilled six large volume groundwater supply wells on the tract and would not be able to access the water once the state built the rest stop because the aquifer could not be reached using directional drilling.13 the jury awarded 7kx $5.8 million for the condemned land, based largely on the long-term likely sales value of the groundwater resources that lay beneath it. the case ultimately settled for $5.5 million just prior to the commencement of oral arguments before the third court of appeals, meaning the land was effectively valued at more than $196,000 per acre.14 the settlement in 7kx investments was very likely predicated on the future income generation potential of the proven commercial-scale water resource under the 12jess krochtengel, “texas jury awards pecan farmers $2.5m in water takings suit,” law 360, 23 february 2016, https://www.law360.com/articles/762833/texas-jury-awards-pecan-farmers-2-5m-in-water-takings-suit. 13paul a. romer, “rest stop dispute finally comes to end,” tdtnews.com, 1 july 2009, http://www.tdtnews.com/archive/article_ffa15658-9cc1-566f99dc-0f0343ba804b.html. 14johns marrs ellis & hodge, llp, “trials & appeals,” state of texas v. 7kx investments, no. 03-10-0069, in the third district court of appeals, austin, texas (2011), http://jmehlaw.com/trials-appeals/types-of-cases/condemnationeminent-domain/. tract taken by the state of texas. supporting this idea, the final settlement amount fell nearly in the middle of the 50-year total groundwater value estimate of $4.5 million and $6.2 million offered by the plaintiff’s expert witness.15 adjusting comparable transaction data for specific assets groundwater valuations are best framed in terms of what charles porter and ed mccarthy call “the most probable price.”16 most importantly, this means that groundwater prices result from dynamic interaction between many variables and so a valuation dollar figure at any given point is a “snapshot” in time and could rise or decline meaningfully months or even weeks later. businesses often use a “fair value” approach intended to reflect market activity, timing, and a range of other factors to reach value estimates for water assets. for instance, martin marrieta—a large, publicly traded corporation with major land holdings in texas—employs “a market approach to determine the fair value of water rights that may be associated with its properties.”17 the company specifies that it values other intangible assets using an “excess earnings” method or a replacement cost approach, but classifies water rights entirely differently, which strongly suggests that “market approach” in this context means “comparable sales.” forestar group, another large, publicly traded corporation whose business focuses on relatively illiquid assets such as real estate and groundwater, offers a useful three-level framework for assessing the “fair value” of property interests in water: 1. level 1: “quoted prices in active markets for identical assets or liabilities.”18 2. level 2: “inputs other than level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can 15paul romer, “setting a precedent: bell case possible landmark for eminent domain involving underground water rights,” tdtnews.com, 23 august 2009, http://www.tdtnews.com/archive/article_33fbf22f-c781-53fd-811e9a7657c55fbe.html. 16charles porter and ed mccarthy, “valuation of water rights,” 2016 texas water law institute, https://utcle.org/practice-areas/index/practice_ area_id/26. 17“martin marrieta materials 2016 annual report,” http://files.shareholder.com/downloads/mlm/5519439460x0x932416/88ab9794-3ec6462a-aaaa-0ed16ee13fc0/annual_report_2016.pdf. 18forestar group, form 10-k, 2016. pg. 70. available from http://investor.forestargroup.com/phoenix.zhtml?c=216546&p=irol-sec&control_symbol=&control_symbol. https://www.law360.com/articles/762833/texas-jury-awards-pecan-farmers-2-5m-in-water-takings-suit https://www.law360.com/articles/762833/texas-jury-awards-pecan-farmers-2-5m-in-water-takings-suit http://www.tdtnews.com/archive/article_ffa15658-9cc1-566f-99dc-0f0343ba804b.html http://www.tdtnews.com/archive/article_ffa15658-9cc1-566f-99dc-0f0343ba804b.html http://jmehlaw.com/trials-appeals/types-of-cases/condemnationeminent-domain/ http://jmehlaw.com/trials-appeals/types-of-cases/condemnationeminent-domain/ http://www.tdtnews.com/archive/article_33fbf22f-c781-53fd-811e-9a7657c55fbe.html http://www.tdtnews.com/archive/article_33fbf22f-c781-53fd-811e-9a7657c55fbe.html https://utcle.org/practice-areas/index/practice_area_id/26 https://utcle.org/practice-areas/index/practice_area_id/26 http://files.shareholder.com/downloads/mlm/5519439460x0x932416/88ab9794-3ec6-462a-aaaa-0ed16ee13fc0/annual_report_2016.pdf http://files.shareholder.com/downloads/mlm/5519439460x0x932416/88ab9794-3ec6-462a-aaaa-0ed16ee13fc0/annual_report_2016.pdf http://files.shareholder.com/downloads/mlm/5519439460x0x932416/88ab9794-3ec6-462a-aaaa-0ed16ee13fc0/annual_report_2016.pdf http://investor.forestargroup.com/phoenix.zhtml?c=216546&p=irol-sec&control_symbol=&control_symbol http://investor.forestargroup.com/phoenix.zhtml?c=216546&p=irol-sec&control_symbol=&control_symbol http://investor.forestargroup.com/phoenix.zhtml?c=216546&p=irol-sec&control_symbol=&control_symbol texas water journal, volume 9, number 1 economic valuation of groundwater in texas 56 be corroborated by observable market data for substantially the full term of the assets or liabilities,” and19 3. level 3: “unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.”20 aside from high-activity oilfield areas, the main high-activity “market” for groundwater in texas to date is in the edwards aquifer, which provides an online portal for parties wishing to sell or lease groundwater, but does not comprehensively report transaction and price data.21 for other groundwater transactions throughout texas, data availability is even sparser, which makes finding “apples-to-apples” transaction data upon which to price the water difficult. accordingly, buyers and sellers must generally apply multiple adjustment factors to determine a defensible fair value range for a transaction at a given place and time. key variables to consider when adjusting comparable transaction valuations include the 11 criteria enumerated below. these factors are not rank-ordered because under various circumstances their relative importance may differ. for instance, a rapidly growing city in a drier part of texas may be most concerned about a resource’s drought resistance and water quality, while an oilfield or factory user may be most concerned with how quickly water can be brought online and the availability of rights of way and infrastructure to get it to market. factors 1-3: water location, the existence of production and delivery infrastructure, and the cost of such infrastructure. these factors tend to be closely related to one another, hence the decision to group them in a bloc here. take for instance the vista ridge project supplying water from burleson county to san antonio. as of february 2017, the project’s expected water cost per acre-foot was $460 per acrefoot to purchase the water from bluewater systems, $1,146 per acre-foot to finance infrastructure costs, $191 per acre-foot in electricity costs, and $196 per acre-foot in operations and maintenance costs, for a final delivered water price of $1,993 19ibid. 20ibid. 21“sellers lessors listing,” edwards aquifer authority, http://data.edwardsaquifer.org/sellerslessors. per acre-foot.22 in simple terms, infrastructure and debt service costs alone account for nearly 60% of the final delivered water price for the vista ridge project (figure 2). 4: market competition. multiple parties competing for a water asset will likely drive up the price, while a lack of competition empowers a potential buyer to seek a lower price.23 5: water quality. the price of water may be varied based on its quality. for instance, in agreements to supply municipal drinking water, water volumes with lower total dissolved solids (tds) content (a proxy for salinity) can entitle producers to higher royalty payments while water volumes with higher tds levels yield lower royalty payments.24 conversely, oilfield water supply agreements in texas have been designed to incentivize the use of high-tds non-potable water for fracturing fluid by prohibiting the production of water below a specific tds level and requiring a lessee to effectively forfeit the gross revenues earned from any sales of water below a certain defined tds level.25 6: a closely related concept is the cost of physically extracting and treating the water. a water seller will likely have to discount the price of water they are selling if that water has a quality impairment that requires a customer to spend on treatment. quality-related premiums and discounts abound in the oil and gas world and provide ample precedent for parties valuing water and structuring sales and purchase agreements. 7: the intended use of the water. agricultural users are the largest users of water per unit of economic output produced but also generally have the lowest capacity to pay, municipal users have a medium capacity to pay and contract the largest steady volumes of water for the longest periods, and specialty users such as oilfield frac’ers have much smaller volume 22data obtained from “project introduction: san antonio’s vista ridge regional water project,” nancy belinsky, vp & general counsel, delivered at 59th annual v.g. young school for county commissioners courts, austin, tx, 8 february 2017. 23bruce k. darling, “groundwater in texas: marketability and market value,” the water report, 15 july 2007. 24see, for instance: groundwater rights sales contract between the roark interests, winkler land, llc, and the midland county fresh water supply district no.1 (2015). 25see, for instance: the groundwater lease signed on 1 november 2017 between the texas general land office and layne water midstream, llc. figure 2. vista ridge delivered water cost visualization. source: saws http://data.edwardsaquifer.org/sellerslessors http://data.edwardsaquifer.org/sellerslessors texas water journal, volume 9, number 1 57economic valuation of groundwater in texas requirements but can pay an order of magnitude higher than what a municipality or factory could (figure 3). 8: protection from drainage by neighboring pumpers. texas currently governs groundwater under “rule of capture” principles that in practice mean water owners do not have access to a given volume of water nor do they have practical recourse to prevent themselves from being pumped out by neighboring users.26 the practical implication is that water sourced from very large contiguous tracts or pooled leases is the most “protected” and, all else held equal, will likely command the highest valuations for groundwater in place in that particular area. 9: political, legal, and regulatory barriers that could impede development of the resource. developing water resources for off-tract use generally requires some—or at times all—of the following: groundwater conservation district export permits (which ideally need to cover a period of 15 years or longer to support the financing of infrastructure necessary to get the water to end users), payment of groundwater conservation district export fees, public support, the consent of third 26gabe collins, blue gold: commoditize groundwater and use correlative management to balance city, farm, and frac water use in texas, 55 nat. resources j. 441, 463 (2015). parties whose property must be crossed, and the consent of other parties who may hold a property interest in the groundwater resource in question. these “above-ground factors” often present the greatest challenge to developing a water asset and exert great influence on what a given groundwater asset is actually worth because potential investors will generally seek the highest practicable degree of regulatory certainty. 10: time sensitivity of the end use. in practice, time sensitivity is often inversely correlated with the length of the period in which the consumer will need the water. for instance, sourcing water for hydraulic fracturing completions of oil and gas wells is the epitome of a “time-is-of-the-essence” transaction, but such purchases often occur on an irregular schedule and energy companies are generally unwilling to enter into longer-term or take-or-pay water procurement agreements. in contrast, cities that need water for the next 30 to 50 years will not pay as much as a frac’er and will not move as quickly to seal up a deal, but when a purchase agreement is executed, it typically spans multiple decades. the most rapidly implemented municipal water development and acquisition transactions typically occur when a city already owns an anchor water property—such as midland’s t-bar ranch—and then patches satelfigure 3. economic value generated per acre-foot of water used, 2016 dollars. source: ag extension data, company reports, fracfocus, mekonnen and hoekstra, u.s. census bureau, usda, author’s estimates texas water journal, volume 9, number 1 economic valuation of groundwater in texas 58 lite properties such as the roark and clearwater ranches into the supply corridor. 11: resource dependability (i.e. drought resistance and available volumes). the value of a groundwater resource will be affected by how much water is available at a given time as well as by whether or not the aquifer is “mined” or recharges (such as the edwards aquifer in central texas).27 groundwater resources are generally much more insulated from drought than surface water sources. as such, access to groundwater can help cities and other water users hedge against a drought by offering them an alternative water source that replaces supplies lost from surface water sources and helps buy time for demandside reforms aimed at optimizing water conservation. oilfield water assets, an important subset of the market in the permian basin and parts of south texas, generally require analysts to apply a number of additional criteria to properly evaluate their potential economic value. first, how close is the asset to a state-owned highway that offers a potential right of way for pipelines or layflat hoses to be laid in the bar ditch? second, how many drilling permits have been approved for the next six-12 months forward within a 20-mile radius of the asset? third, how intense is the competition from other water suppliers in the area? is there a larger supplier whose “zone of influence” curtails the potential market opportunities that the asset under evaluation might otherwise enjoy?28 comparable transaction pricing has, to date, been the preferred method of valuing groundwater sold in texas. but income-based value approaches are likely to become more prominent if institutional investors become more interested in texas water assets, whether they are businesses directly selling water or those using water as a critical intermediate input (like farms). in australia, the executive director of bdo, a prominent firm representing institutional buyers of agricultural assets, noted in a 2014 interview that “the comparable sales methodology is not the valuation methodology expected to be used by sophisticated investors…instead, they are more likely to adopt an income approach when valuing agricultural businesses for acquisition, divestment and general reporting.”29 nevertheless, the comparable transactions method is likely to continue serving as a core groundwater valuation tool in texas for at least two reasons. first, the final sale price of a 27bruce k. darling, “the rule of capture, changing perspectives on water management in texas, the tragedy of the commons, and developments in the valuation of groundwater,” conference paper, april 2009, doi: 10.13140/rg.2.1.1516.3047. 28for these points, i am indebted to the insights shared with me in october 2017 by a large delaware basin frac water supplier. 29matthew cranston, “earnings call for farm value,” farmonline national, 17 march 2014, http://www.farmonline.com.au/story/3578573/earnings-call-for-farm-value/. given groundwater asset is likely to incorporate the influence of income-based valuation methods, particularly in cases where the water renders the land its value and drives its income generation potential. second, basic human psychology makes it such that buyers and sellers of an asset will want to see what “similar” assets fetched on the market. and in turn, this information in many cases will “anchor” their own subsequent value perceptions and expectations. how has groundwater actually been priced in texas to date? data from actual sales shows three fundamental pathways in which buyers acquire access to groundwater in texas (figure 4). one method is to purchase the groundwater in place outright. the second method involves purchasing surface acreage to acquire the accompanying groundwater. the third method is to lease groundwater rights. the following section will offer case examples of each method and discuss how they price groundwater resources relative to one another. leasing and sale of the groundwater estate in texas texas law recognizes a separate groundwater estate that can be severed from the surface land and bought and sold as an independent asset. in its landmark coyote lake ranch decision in may 2016, the texas supreme court affirmed that the groundwater estate is not only a stand-alone real property interest, but that it is also dominant relative to the surface estate. without specific contractual provisions to the contrary, a surface owner now generally cannot prevent a groundwater estate owner from making reasonable use of the surface in order to develop her asset.30 coyote lake ranch reinforces the property rights underlying an approximately 50-year history of groundwater estate transactions in texas. for example, in 1969 university lands leased for up to 50 years all groundwater rights down to 1,200 feet depth on an 11,500-acre tract in ward county to an entity called duval corporation, which subsequently transferred its interest to the colorado river municipal water district.31 furthermore, in a 1986 transaction, university lands leased all groundwater that was potable or capable of being rendered potable under a 1,319-acre tract in upton county to the 30coyote lake ranch, llc v. city of lubbock, 498 s.w.3d 53, 65 (tex. 2016), reh’g denied (sept. 23, 2016). (the principle, absent an agreement to the contrary, that a severed mineral estate’s implied right to use the surface must be exercised with due regard for the surface estate’s rights, and the rules common to mineral and groundwater estates, compel the conclusion that the accommodation doctrine extends to groundwater estates.) 31agreement available upon request. doi: 10.13140/rg.2.1.1516.3047 http://www.farmonline.com.au/story/3578573/earnings-call-for-farm-value/ http://www.farmonline.com.au/story/3578573/earnings-call-for-farm-value/ texas water journal, volume 9, number 1 59economic valuation of groundwater in texas upton county water district.32 like the ward county agreement discussed above, the upton county contract also used a total potential lease life of 50 years. moving to recent transactions, the vista ridge project is perhaps the signature groundwater lease project in texas at present. vista ridge aims to begin supplying water to san antonio in 2020 through a 142-mile pipeline from burleson county. saws will purchase groundwater from a trust controlled by blue water vr at a price of $460 per acre-foot.33 this groundwater is sourced from a pool of 1,312 individual groundwater leases covering a total of 50,000 surface acres.34 metropolitan water company, l.p. amassed these leases over 32agreement available upon request. 33conformed version of saws vista ridge water transmission and purchase agreement, as revised by the third amendment dated april 5, 2017, http://www.saws.org/your_water/waterresources/projects/vistaridge/download.cfm. pg. 601. 34“groundwater leases of metropolitan water company, l.p.” http:// www.metwater.com/landleases/index.html. a period of approximately 15 years as part of its porter’s branch groundwater project, which the company claims “was the first large-scale groundwater lease project in the state of texas.”35 met water then transferred a portion of the total lease pool to blue water, which in turn marketed them to the vista ridge project. landowners who leased their water receive a royalty equal to 10% of the water purchase price, or $46 for each acrefoot produced.36 the author has also located two examples of agreements to sell groundwater in place.37 one contract specified a price based on the thickness of water-saturated strata underneath the 35ibid. 36http://www.hillcountryalliance.org/wp-content/uploads/2015/12/vista-ridge-project-financial-questions-answered-nov-18-2015-3.pdf. 37there are almost certainly many more such agreements, but most are confidential and kept inaccessible to the public. the agreements cited by the author involved a municipal entity and were thus accessible via a request under the texas open records act. figure 4. selected valuations for groundwater resources in texas, $/acre-foot (flow values), $/saturated foot (groundwater estate values), $/surface acre (judicial values). note: in sales tranactions listed, seller is listed first followed by the buyer (i.e., seller/buyer) where applicable. source: baker institute for public policy, crmwa, water supply agreements, company reports, local newspapers, author’s model (layne christensen asset). http://www.saws.org/your_water/waterresources/projects/vistaridge/download.cfm http://www.saws.org/your_water/waterresources/projects/vistaridge/download.cfm http://www.metwater.com/landleases/index.html http://www.metwater.com/landleases/index.html http://www.hillcountryalliance.org/wp-content/uploads/2015/12/vista-ridge-project-financial-questions-answered-nov-18-2015-3.pdf http://www.hillcountryalliance.org/wp-content/uploads/2015/12/vista-ridge-project-financial-questions-answered-nov-18-2015-3.pdf texas water journal, volume 9, number 1 economic valuation of groundwater in texas 60 tract of interest, while the second agreement entailed the payment of a fixed price for the groundwater estate under a tract. in the first instance, the city of amarillo agreed in 2015 to purchase the groundwater estate from the base of the ogallala aquifer upwards under the lands of the mc cattle company in roberts and ochiltree counties northwest of amarillo. the city priced the water resource based on the feet of saturated water available under each acre in the surface tract and attached a value premium to those acres underlain by the thickest saturated layer. it paid $250 per surface acre for acreage underlain by a saturated layer with an average thickness less than 200 feet, $300 per acre for acreage with an average saturated thickness between 200 and 257 feet, and $1.16 per average saturated foot for each acre with saturated aquifer strata with an average thickness of 258 feet or more.38 in the second instance, the midland county fresh water supply district no. 1 paid $3.2 million to winkler services and members of the roark family to purchase the groundwater rights underneath approximately 4,500 acres of the roark ranch.39 data from the texas water development board (twdb) show that the average thickness of the pecos valley aquifer under the tract is approximately 850 feet.40 this suggests a groundwater estate purchase value of approximately $0.83 per water-bearing foot per acre. parties seeking water may also purchase an entire tract of land in order to access the water underneath. this is more likely to occur with sales of farmland, where property owners may be reluctant to sever the groundwater estate, since doing so impairs the land’s farming value.41 accordingly, “unbundling” the value of the surface alone can shed light on the likely value of the groundwater beneath. this is important to parties considering agricultural investments where the water “renders the land its value,” as well as to parties such as municipalities, water 38see contract of sale, groundwater rights between mc cattle company and m&d mclain family (sellers) and city of amarillo (purchaser). 39winkler services also retained a royalty interest in water sold, with a scaled system that premium priced water from the ranch based on its quality as measured by total dissolved solids content. 40this figure was calculated by taking a shapefile of the pecos valley aquifer from the texas water development board containing approximately 6800 data points, including thickness of the water-saturated strata, finding the 14 cells that completely or partially underlay the relevant sections of the roark ranch in winkler county, and then averaging the thickness of those cells and using that number as the denominator to calculate the price paid for the groundwater estate. 41that said, in wetter areas near the texas triangle where high-value, large-volume water sales to municipalities are a real possibility, some landowners now wish to retain groundwater ownership interests in case water leasing occurs in the future. a groundwater conservation district official in central texas that the author spoke with in september 2017 noted that in that area, landowners increasingly seek to retain all or part of the groundwater estate associated with the tract they are selling. export project developers, or oilfield water suppliers that only seek access to the groundwater estate but may have to purchase the surface tract to obtain the water underneath.42 unbundling opens the door for a direct “apples-to-apples” comparison of the implied price paid for groundwater in a land purchase transaction and the price paid for an explicit agreement to acquire only the groundwater estate beneath a tract. the value-unbundling process proceeds as follows: 1. take the entire capital investment amount. in addition to the land and groundwater, this can also include the value of fixtures or improvements to the land, if relevant. 2. subtract the cost of infrastructure, labor, and other nonland expenditures (which may have to be estimated) from the total capital investment amount. 3. take the remaining dollar figure, which reflects the implied value paid for the land and divide by the number of acres in the tract to find the implied total cost per acre for the land and the water beneath. 4. find data that reflect the value of the land per acre in its “most recent prior use” (farming, for instance). 5. subtract the most recent prior-use value from the total value paid per acre of land. this reveals the implied “premium” paid for the groundwater. 6. divide the premium by the average saturated thickness of the groundwater underlying the land to derive the implied value paid per saturated foot per acre.43 the author’s recent work offers an example of how to develop in-place groundwater valuations by combining total purchase price or capital investment data and baseline land value data for a specific region of texas, as outlined below.44 finding the value first, the author developed an input cost model based on technical and other data, then refined the model based on conversations with knowledgeable industry sources. next, the estimated input cost figure ($15.2 million) was subtracted from the total reported project capital investment of $18 million, leaving an implied land cost just over $2.7 million. dividing 42there can be exceptions. consider, for instance, the hypothetical of a developer who purchases the entirety of the surface estate of a 1,000-acre tract for $1,000 per acre, then re-sells the surface rights for the same $1,000 per acre, but severs and retains the groundwater estate. such situations are less likely now that more parties in texas recognize the value of groundwater—especially for large tracts where farming, water sales to cities and the oilfield, and other such activities are feasible and may actually be a core reason for purchasing that particular piece of land. 43derived from gabriel collins, “valuation of groundwater in place at a texas frac water supplier,” baker institute issue brief, 7 december 2017, https://www.bakerinstitute.org/media/files/research-document/c96199a5/ bi-brief-120717-ces-groundwatervalue.pdf. 44ibid. https://www.bakerinstitute.org/media/files/research-document/c96199a5/bi-brief-120717-ces-groundwatervalue.pdf https://www.bakerinstitute.org/media/files/research-document/c96199a5/bi-brief-120717-ces-groundwatervalue.pdf texas water journal, volume 9, number 1 61economic valuation of groundwater in texas that number by 1,000 acres delivers a land cost of $2,733 per acre. land sales value data from the texas chapter of the american society of farm managers and rural appraisers (asfmra) indicate that irrigated cropland in the trans-pecos region of texas sold for an average price of between $500 and $750 per acre in 2016.45 to be conservative, the high end of the asfmra value range ($750 per acre) was subtracted from the implied land valuation of $2,733 per acre, leaving an implied value premium 45“texas rural land value trends for 2016” (report presented at the 27th annual outlook for texas land markets, april 20, 2017), 23. table 1. estimating the likely value for the groundwater estate at layne’s hermosa oilfield water supply asset. source: company reports, author’s interviews of relevant providers of goods and services. item units number unit cost subtotal wells (new drill) 2 $127,250 $254,500 wells (refurbish) 4 $65,000 $260,000 storage ponds (built and lined) bbl 750,000 $1.25 $937,500 pumps (200 hp) 4 $25,000 $100,000 booster pumps on pipeline 3 $10,000 $30,000 22-in high-density polyethylene pipeline feet 107,000 $90.20 $9,651,400 pipe fusion joint welds 2,112 $150.00 $316,800 trencher operation (vermeer t1155) feet 107,000 $7.50 $802,500 right-of-way miles 20 $71,680 $1,433,600 riser stations for water offtake 13 $15,000 $195,000 labor days 90 $8,400 $756,000 branch lines linking wells to central pits feet 21,000 $12 $252,000 electronics on wells 6 $10,000 $60,000 electrification 1 $50,000 $50,000 concrete tonnes 500 $167 $83,250 rebar tonnes 16 $600 $9,494 roads miles 1.50 $50,000 $75,000 total, ex-land $15,267,044 total estimated capex $18,000,000 implied land cost $2,732,956 acreage 1,000 implied land value per acre $2,733 est. value of “farming only” farmland in trans-pecos region ($/acre) $750 implied value premium for water, $/acre $1,983 average available aquifer thickness under tract 1,825 implied price paid for groundwater estate ($/available foot) $1.09 texas water journal, volume 9, number 1 economic valuation of groundwater in texas 62 figure 5. avoided cost valuation in action—valuing farmer joe’s deep aquifer rights. cost of water city is forced to purchase from high cost water authority $1,000 per acre-foot new cost of self-sourced water if city deepens wells and taps farmer joe’s deep aquifer. $600 per acre-foot = implied maximum price city would be willing to pay for farmer joe’s water $400 per acre-foot of $1,983 per acre for groundwater. the pecos valley aquifer shapefile from the twdb was then laid over the approximate location of the layne tract using qgis software. the cells where the two layers overlapped were selected, and the thickness of each cell was used to calculate the average thickness of the water-bearing strata under the tract area (1,825 feet). finally, the $1,983 implied water premium per acre was divided by 1,825 feet of potentially water-bearing thickness shown in the twdb model data, yielding an implied groundwater estate valuation of $1.09 per saturated foot per acre (table 1). the price paid for water in place can become a basis for analyzing other groundwater transactions across the state, subject to adjustment factors. method 2: avoided cost groundwater can also be valued relative to the savings realized by procuring water from a lower-cost supplier, since avoiding a cost effectively yields an economic benefit.46 other authors have called this concept “replacement cost,” but the concepts are essentially alike, as both measure the cost of self-sourcing water to either compensate for a supply disruption or avoid procuring water from more expensive sources.47 it is an especially relevant methodology in cases where an entity such as a city or farm owns the water wells and supporting infrastructure necessary to produce and deliver water but is subjected to a politically motivated requirement that it procure water from an alternative higher cost source (figure 5). 46“assessing the value of groundwater,” uk environment agency, science report—sc040016/sr1, http://www2.aueb.gr/users/koundouri/resees/ uploads/econ%20val%20gw.pdf. 47charles porter and ed mccarthy, “valuation of water rights,” 2016 texas water law institute, https://utcle.org/practice-areas/index/practice_ area_id/26. consider the following simplified hypothetical example: burdened city supplies its residents from a well whose water costs $100 per acre-foot to pump to the surface, $200 per acre-foot to treat, and $300 per acre-foot to distribute. despite burdened city having access to a relatively shallow aquifer, acme water conservation district amends its ruleset to require all large-scale groundwater pumpers to reduce withdrawals by 50% and instead purchase water from an alternative supply source (the high cost water authority) costing $1,000 per acre-foot. taking high cost water’s price of $1,000 per acre-foot and subtracting the likely cost of self-sourced groundwater of $600 per acre-foot [$100 per acre-foot lifting cost + $200 per acre-foot treatment cost + $300 per acre-foot distribution cost] leaves a difference of $400 per acre-foot. under serious budgetary pressure from the cost of paying over 60% more for its water, burdened city searches for alternative options. it decides to tap a deeper aquifer layer exempted from the groundwater pumping restrictions, whose rights are owned by farmer joe. the farmer hasn’t used the deeper water to date because it costs too much to pump for agricultural use. but the city has run its numbers and realizes that it can deepen its wells and use its existing infrastructure to produce, treat, and distribute farmer joe’s water to municipal customers at the final cost of $600 per acre-foot described above. so how much would the city potentially be willing to pay farmer joe for his water? the likely solution is up to $400 per acre-foot. any amount between that figure and zero would represent a net economic gain for the city, as it would allow it to avoid the existing cost it must bear for supplies from high cost water authority. avoided cost valuation will likely prove especially important to medium-sized and smaller cities as well as farmers and industrial water users. such parties generally cannot take on http://www2.aueb.gr/users/koundouri/resees/uploads/econ%20val%20gw.pdf http://www2.aueb.gr/users/koundouri/resees/uploads/econ%20val%20gw.pdf https://utcle.org/practice-areas/index/practice_area_id/26 https://utcle.org/practice-areas/index/practice_area_id/26 texas water journal, volume 9, number 1 63economic valuation of groundwater in texas the hefty financial risk of multibillion-dollar water supply projects like the vista ridge pipeline. accordingly, they will likely seek to augment their water resources by acquiring groundwater-bearing tracts near their existing wellfields and pipelines, using a strategy of incremental expansion. this in turn is likely to drive ongoing market activity in the form of such cities/ governmental entities and certain large private consumers leasing or purchasing entire land tracts or, at the very least, the groundwater estate beneath them. method 3: the land value method the land value method is an inductive approach, which derives water values by comparing transactions of irrigated and non-irrigated farmland. for instance, if dry cropland in an area sells for $1,000 per acre and irrigated cropland in the same zone sells for $2,000 per acre, this would suggest that the water associated with the land is worth $1,000 per surface acre. the method is simple and provides a “starting-point” value for a broader assessment. yet with proper adjustments for the capital costs of accessing and using the water (center pivot sprinklers, for instance), useful basic valuations can be rapidly obtained and used as reference points. data from the annual texas rural land value trends report offer insights into the implied value of water per acre of farmland sold. the instant analysis focuses on the northern texas panhandle. this region, consisting of carson, dallam, gray, hansford, hartley, hemphill, hutchinson, lipscomb, moore, ochiltree, oldham, potter, roberts, and sherman counties, is one of the most intensively farmed in texas and relies almost exclusively on groundwater for irrigation. as such, the difference in value per acre between dryland and irrigated farm tracts offers a relatively “pure” indicator of how much value the water renders to the land. the land value method’s utility in a farming-centric area such as northwest texas is reinforced by the fact that buyers and sellers of land in the area are typically sophisticated parties who understand the land’s potential to yield income through agricultural production and how water is an integral component of that process. to calculate the value of water on northern panhandle farmland, this author employs a three-step process. first, take the reported value range of “irrigated cropland good water,” which in 2016 was $3,000–$4,000 per acre, based on reported transactions that year. second, subtract the value of dry cropland in the eastern portion of the northern panhandle ($750–$1,200 per acre) from the value of the irrigated land. this yields a difference of $2,250 per acre [$3,000–$750] on the low end and $2,800 per acre [$4,000–$1,200 per acre] on the high end. third, these numbers should then be adjusted for the value per acre of center pivot sprinkler systems, which are the primary figure 6. implied water value in north texas panhandle based on land value method, $/acre. source: asfmra, author’s analysis. texas water journal, volume 9, number 1 economic valuation of groundwater in texas 64 mode of irrigation in the northern texas panhandle. data from texas a&m university suggest a cost range of $325–$375 per acre for a quarter-mile center pivot capable of watering 120 acres and $200–$250 per acre for a half-mile center pivot system capable of watering a 500-acre area, not including the costs of drilling water wells and installing pump equipment.48 since farm tracts vary in size but tend to be larger than 500 acres in the area of interest, this analysis assumes a cost of $225 per acre for center pivot systems, which we apply as an “adjustment factor.” that step yields final implied water values in 2017 of $2,025 per acre on the low end [$2,250– $225] and $2,700 per acre on the high end [$2,925–$225] (figure 6). to “cross-check” the theoretical valuation outlined above, the author compares it to the price amarillo paid for the mc cattle company’s groundwater estate in southern roberts and northern ochiltree counties, which, like the farmland discussed above, is located in the northern panhandle. under eight sample tracts of farmland listed for sale in the northern texas panhandle as of late october 2017, the average thickness of the high plains aquifer averaged between 450 to 710 feet, depending on the tract. amarillo paid $1.16 per saturated foot in 2015 for the thickest portions of the mc cattle groundwater estate. if we assume that there are 500 feet of saturated layer under a farm whose adjusted water value is $2,500 per acre using the land value method, this would suggest a value for water in-place of $5.00 per saturated foot. the improvements made to land for farming can increase the surface tract’s value and implicitly reduce the “groundwater premium” but even those adjustments would still likely leave groundwater estate values more than twice as high as those paid by amarillo in its 2015 purchase. one possible explanation for the disparity is that a farm typically pumps and consumes water close to the wellhead, while supplying water from a distant asset—mc cattle’s tracts are located roughly 90 miles from amarillo—requires expensive infrastructure whose cost must also be borne by the end users of that water. the fact that a final delivered water price includes all costs necessary to pay back capital investments and cover operating expenses—from pumping, to treatment, to delivery—potentially limits the actual price that can be paid for the groundwater itself, lest the final delivered water become unaffordable for customers. method 4: income capitalization the income capitalization method is most appropriate for valuing groundwater in contexts where money is invested in a water-focused asset to generate cash flow. this happens when 48“center pivot irrigation,” texas agricultural extension service,” b-6096 4-00, http://aglifesciences.tamu.edu/baen/wp-content/uploads/ sites/24/2017/01/b-6096-center-pivot-irrigation.pdf. direct sales of water are occurring or where the water is a critical input to a broader industrial or agricultural process that generates cash flow and water’s contribution to the final value of the product can be clearly attributed. as a general proposition, income capitalization should be employed as a valuation technique “only when actual income from the property can be established in a continuing on-going business.” 49 the income capitalization method fundamentally hinges on the perceived risk of an investment, as this is a key determinant of the discount rate applied to an income stream.50 water sales transactions often involve significant risks that can arise from timing, climate factors, and, perhaps most of all, legal, political, and regulatory barriers that prevent an owner from monetizing groundwater resources. returns-focused investors generally want to pay back the original capital as quickly as possible and then begin garnering returns on the original capital employed. this reality has two immediate implications for prospective texas water investments and the valuation of the underlying water. first, as mccarthy and porter point out, municipal and industrial water sourcing agreements generally specify prices, minimum offtake volumes, and a multi-year (often decades long) timetable over which the deal plays out. each of these factors, generally speaking, “de-risks” a transaction and suggests capitalization rates should be lower than those that an appraiser would apply to more speculative water transactions. second, oilfield water supply deals, which bear a high degree of risk from commodity price volatility and which are generally spot market or short-term deal structures without take-or-pay conditions, will usually entail much higher capitalization rates. a capitalization rate of between 20% and 30% represents the level of returns that would likely be needed to entice capital into an oilfield water supply deal without long-term minimum volume commitments, as well as to offset the opportunity costs of putting capital to work in competing investments in real estate, oil and gas, and other sectors. valuation estimates for municipal supply projects could likely be defensibly capitalized at lower rates. consider the table 2 example, which compares the capitalized value of water used in the trans-pecos region of texas as an intermediate input for growing alfalfa and as hydraulic fractur49foster v. united states, 2 cl. ct. 426, 448 (1983); the texas property code further notes that when a governmental entity condemns land that includes groundwater rights and the rights may be developed or used for a public purpose, the resulting condemnation proceeding should use methodologies prescribed in chapter 23 of the texas tax code, which includes income capitalization tex. prop. code ann. § 21.0421 (west)(b); tex. tax code ann. § 23.012 (west). 50a broadly accepted “risk-free rate” is the annual interest rate paid on 10-year united states treasury notes (commonly known as “t-bills”). investors generally seek to put their capital to work in exchange for returns that would be a multiple of the risk-free rate. http://aglifesciences.tamu.edu/baen/wp-content/uploads/sites/24/2017/01/b-6096-center-pivot-irrigation.pdf http://aglifesciences.tamu.edu/baen/wp-content/uploads/sites/24/2017/01/b-6096-center-pivot-irrigation.pdf texas water journal, volume 9, number 1 65economic valuation of groundwater in texas ing fluid. two things quickly become apparent. first, changing the underlying commodity price massively shifts indicated water value when using the income capitalization method. alfalfa that costs $196 per ton under normal conditions implies a water value of $807 per acre-foot. if we assume that alfalfa prices and water use each rise 25% due to drought, the indicated value of the groundwater used rises by 160%, leverage of more than six-fold. second, changing the capitalization rate (i.e. the risk profile of an asset) also exerts substantial, although much less dramatic impacts on underlying water values. source: harry f. blaney and eldon g. hanson, “consumptive use and water requirements in new mexico,” technical report 32, new mexico state engineer, pg.19; “period of record monthly climate summary: pecos, tx,” western regional climate center, http://www.wrcc.dri.edu/cgi-bin/climain. pl?tx6892; yonts et.al, “water loss from above-canopy and in-canopy sprinklers,” university of nebraska extension, http://extensionpublications.unl. edu/assets/html/g1328/build/g1328.htm; laurialt et.al, “the 2015 new mexico alfalfa variety test report,” new mexico state university, http://aces.nmsu. edu/pubs/variety_trials/avt15.pdf; texas district 6 alfalfa crop budget, 2017, tamu extension, https://agecoext.tamu.edu/resources/crop-livestock-budgets/budgets-by-extension-district/district-6-far-west/2017-district-6-texas-crop-and-livestock-budgets/, texas district 6 center pivot cotton crop budget, 2017, tamu extension, https://agecoext.tamu.edu/files/2017/02/2017d6tpcottonpivot.pdf; author’s interview of permian basin-focused oilfield water investors, october 2017. table 2. sample valuations of water using the income capitalization method. alfalfa farm alfalfa farm, high municipal water sales intermittent frac water sales contract frac water sales acreage 640 640 n/a n/a n/a commodity units sold 6.8 6.8 15,000 1,500,000 9,000,000 tonnes tonnes acre-feet barrels barrels unit price $196 $245 $500 $0.50 $0.50 per tonne per tonne per acre-foot per barrel per barrel gross income $854,400 $1,068,000 $7,500,000 $750,000 $4,500,000 total costs $644,480 $644,480 $1,500,000 $60,000 $360,000 net income $209,920 $423,520 $6,000,000 $690,000 $4,140,000 capitalization rate 16% 16% 10% 30% 15% implied payback time of investment, years 6.3 6.3 10.0 3.3 6.7 capitalized income $1,312,000 $2,647,000 $60,000,000 $2,300,000 $27,600,000 water used annually, acre-foot 1,626 2,033 15,000 193 1,160 indicated value of groundwater used/ sold, ($/acre-foot) $807 $1,302 $4,000 $11,896 $23,791 high leverage to commodity price changes a price increase of only 25% boosts the indicated value of the groundwater used by 160%. significant, but lesser leverage to changes in capitalization rate a 50% reduction in the capitalization rate doubles the indicated value of groundwater sold. http://www.wrcc.dri.edu/cgi-bin/climain.pl?tx6892 http://www.wrcc.dri.edu/cgi-bin/climain.pl?tx6892 http://extensionpublications.unl.edu/assets/html/g1328/build/g1328.htm http://extensionpublications.unl.edu/assets/html/g1328/build/g1328.htm http://aces.nmsu.edu/pubs/variety_trials/avt15.pdf http://aces.nmsu.edu/pubs/variety_trials/avt15.pdf https://agecoext.tamu.edu/resources/crop-livestock-budgets/budgets-by-extension-district/district-6-far-west/2017-district-6-texas-crop-and-livestock-budgets/ https://agecoext.tamu.edu/resources/crop-livestock-budgets/budgets-by-extension-district/district-6-far-west/2017-district-6-texas-crop-and-livestock-budgets/ https://agecoext.tamu.edu/wp-content/uploads/2017/02/2017d6tpcottonpivot.pdf texas water journal, volume 9, number 1 economic valuation of groundwater in texas 66 to further test the data in table 2, we analyzed a sales listing from an irrigated corn farm in sunray, texas, located approximately 50 miles north/northeast of amarillo. the 480-acre center pivot-irrigated farm was listed as of early november 2017 on lands of texas for $1,488,000.51 u.s. department of agriculture national agricultural statistics service census data from 2013 indicate that statewide, texas corn producers using pressure irrigation enjoyed a yield of 202 bushels per acre (~5 metric tons per acre). crop budget data for the north panhandle from texas a&m suggest that growers in that area—where the sunray farm is located—could potentially reap closer to 225 bushels per acre.52 at a realized price of $3.80 per bushel, the farm could thus produce $855 per acre in revenue. using data from the same crop budget, corn grown on land owned by the farmer would incur costs of approximately $748.56 per acre, yielding a net income of $106.44 per acre and $51,091.20 for the entire farm [$106.44 per acre x 480 acres]. at a capitalization rate of 16%, the capitalized net income would be $319,320. so how does this translate into a value for water? data from the twdb show that between 1999 and 2007, farmers in the north plains region applied an average of 14.44 inches of irrigation water to their crops per year—roughly 1.2 feet.53 a farm like sunray would thus likely require about 576 acre-feet of water per year to maintain its corn production, suggesting the water has an indicated value of approximately $554 per acre-foot [$319,320 of capitalized income ÷ 576 acre-feet of water]. using a corn price of $5 per bushel would drive the implied water value up to nearly $1,961 per acre-foot; a 2.5fold increase in implied water value driven by an increase of only 32% in the value of the underlying commodity being produced with the water. it is interesting to consider how water valuations reached via the income capitalization method compare to alternative business valuations using multiples of cash flow or earnings. for instance, the hypothetical intermittent fracturing sales business shown in table 2 has a capitalized income value of $2.3 million when valued with a 30% capitalization rate (indicating a volatile, high-risk business). oilfield water investors the author has spoken with generally examine cash flow when evaluating such an asset. in doing so, they would typically use a rule of thumb that a water sales business is worth two to three times earnings before interest, taxes, depreciation, and amortization (ebit51https://www.landsoftexas.com/property/480-acres-in-sherman-county-texas/3440331. 52district 1 crop budget for bt corn, sprinkler irrigated, texas a&m agrilife extension, 2018, https://agecoext.tamu.edu/resources/crop-livestock-budgets/budgets-by-extension-district/district-1-panhandle/2018-district-1-texas-crop-and-livestock-budgets/. 53http://www.twdb.texas.gov/publications/reports/numbered_reports/ doc/r378_irrigationmetering.pdf. da).54 with annual net income of $690,000 in the example below, plus fixtures (wells, catchment pit, etc.) that are likely worth at least $500,000, this would suggest a business valuation of $1.9 million [$690,000 ebitda x 2 + $500,000 in fixtures] on the lower end and $2.6 million on the upper end [$690,00 ebitda x 3 + $500,000 in fixtures]. the capitalized income value suggested by the simple model above falls almost squarely in the middle of that range, which indicates it can be valid as a “quick-and-dirty” method for assessing possible values of a water-centric business. method 5: residual value the concept of calculating a residual value (or “shadow price”) for water is rooted in the idea that a profit-maximizing enterprise will only use water to the point at which the net revenue generated by using that additional unit of water is equal to the marginal cost of obtaining it.55 residual value analysis is appropriate for valuing water for agricultural or industrial use if comparable transaction data cannot be found or if water is an input that is not explicitly priced. many of these circumstances would involve parties with their own water supply infrastructure, in which case “cost of substitute” valuation methods could also be used. crop budget residual valuation has been utilized to assess the value of water in multiple locations globally, including the high plains region of the united states along with spain, and namibia.56 at its core, this technique takes the total value of output from growing a specific crop or conducting a specif54broadly similar businesses such as manufacturing or construction firms might be evaluated using a multiple of 3-4 times “seller’s discretionary earnings,” a measure analogous to cash flow, as commonly defined. barbara taylor, “determining your company’s value: multiples and rules of thumb,” the new york times, 15 july 2010, https://boss.blogs.nytimes. com/2010/07/15/determining-your-companys-value-multiples-and-rulesof-thumb/. 55mesa-jurado, m.a. et. al., irrigation water value scenarios for 2015: application to guadalquivir river,” paper prepared for presentation at the 107th eaae seminar “modelling of agricultural and rural development policies”. seville, spain, january 29th -february 1st, 2008, https://ageconsearch.umn.edu/bitstream/6450/2/pp08me20.pdf. 56concept drawn from jadwiga r. ziolkowska, “shadow price of water for irrigation—a case of the high plains”, in agricultural water management, volume 153, 2015, pages 20-31, issn 0378-3774, https://doi. org/10.1016/j.agwat.2015.01.024. see also: j. berbel, m.a. mesa-jurado, j.m. piston, “value of irrigation water in guadalquivir basin (spain) by residual value method,” water resour. manage., 25 (6) (2011), pp. 15651579 and “case studies of water valuation in namibia’s commercial farming areas, g.m. lange, r. hassam (eds.), the economics of water management in southern africa: an environmental accounting approach, edward elgar publishing, chelthenham (2006), pp. 237-255, and finally, james macgregor, et.al., “estimating the economic value of water in namibia,” paper prepared for 1st warfsa/waternet symposium: sustainable use of water resources; maputo; 1-2 november 2000. https://www.landsoftexas.com/property/480-acres-in-sherman-county-texas/3440331 https://www.landsoftexas.com/property/480-acres-in-sherman-county-texas/3440331 https://boss.blogs.nytimes.com/2010/07/15/determining-your-companys-value-multiples-and-rules-of-thumb/ https://boss.blogs.nytimes.com/2010/07/15/determining-your-companys-value-multiples-and-rules-of-thumb/ https://boss.blogs.nytimes.com/2010/07/15/determining-your-companys-value-multiples-and-rules-of-thumb/ https://ageconsearch.umn.edu/bitstream/6450/2/pp08me20.pdf https://ageconsearch.umn.edu/bitstream/6450/2/pp08me20.pdf https://doi.org/10.1016/j.agwat.2015.01.024 https://doi.org/10.1016/j.agwat.2015.01.024 texas water journal, volume 9, number 1 67economic valuation of groundwater in texas ic industrial activity under a specified set of conditions and subtracts the operational costs incurred under those conditions. expenses include seed, fertilizer, labor, fuel, equipment depreciation, and importantly, the capital and operating costs associated with providing necessary irrigation water to the crop. including the costs of accessing groundwater is essential because it helps bring the analysis closer to what the water could potentially be worth while still in the ground. the sum left over is then divided by the volume of water needed to grow the crop under the specified conditions, and the quotient shows the theoretical maximum amount a farmer could pay for the water and still break even. consider the following simple hypothetical: residual value simplified example revenue from hay cultivation 50 acres x 10 tons per acre x $100 per ton = $50,000 costs of hay cultivation 50 acres x $500 per acre = $25,000 net revenue = $25,000 water needed = 100 acre-feet net revenue/water needed= residual water value of $250 per acre-foot method 6: net present value valuation net present value (npv) analysis entails examining the amount of money an investment is expected to make and discounting it based on anticipated risks in order to translate expected investment returns into “today’s dollars.”57 as such, npv analysis offers some advantages to those seeking to value groundwater assets in a place such as texas, where groundwater is owned as real private property. npv analysis can help translate specific activities into the common language of financial value anchored along a timeline and providing transparent assumptions of the risks used to determine the requisite discount factors. this makes it a tool for conducting “apples-toapples” value comparisons between disparate uses of the surface that might affect access to groundwater beneath. for instance, a 1,000-acre tract of land in the midland or pecos area could have valuable groundwater underneath but might also be the subject of competition between various business interests. an oilfield water sales company might want to purchase the surface as a means to access the water beneath, leading it to seek a farmland-level price for the land to minimize the relative price it is paying for the underlying water, so as to maximize its returns on that natural capital asset. in contrast, a pipeline operator seeking to build a tank farm might 57amy gallo, “a refresher on net present value,” harvard business review, 19 november 2014, https://hbr.org/2014/11/a-refresher-on-netpresent-value. be willing to pay a surface price far in excess of the implied “farmland value.” this is because the pipeline company would be investing many tens of millions of dollars to install infrastructure intended to yield cash flow for decades and would presumably not seek to make a primary business of extracting and selling groundwater from under its tract. under this type of circumstance, using a “land value method” valuation approach like that employed in the layne christiansen example above could yield a highly distorted view of groundwater value. a bulk water seller might be willing to pay $2,500 per surface acre for the entire tract, but the pipeline operator might be willing to pay five or more times that much for subdivided portions of the tract. npv analysis can potentially help bridge the valuation gaps by quantifying the economic returns each party expects relative to its anticipated investment outlay for the land. similarly, npv analysis is also useful in environmental and water security contexts because it can provide insights into competing water users’ willingness to accept payment to forego water use.58 such foregone use could take the form of spot market sales, longer-term supply agreements whereby a lower value user (like a cotton farm) fallows fields to supply water to a higher paying user (like oilfield frac’ers), and/or investment in technology that creates a more durable surplus of water available for alternative, higher-value uses. npv analysis can potentially help backstop insights provided by sporadic local market transactions and potentially guide water owners in making more nuanced long-term allocation and investment decisions. npv analysis also has downsides. first, the calculation’s mathematical structure is enormously sensitive to input assumptions. commodity prices matter. for instance, a fracturing water project with an $18 million initial project investment that sells 100 thousand barrels per day (kbd) of water at an average water sales price of $0.35 per barrel (bbl) yields a net present value of approximately $70 per acre-foot of water, assuming a 15-year project life. changing the water price to $0.40/bbl lifts the 15-year npv to $121 per acre-foot. in other words, a 14% increase in the water sales price yielded a roughly 70% increase in the underlying groundwater resource’s implied value. discount rate assumptions also matter. the discount rate for a water project typically consists of a baseline risk-free rate (typically the 10-year t-bill rate) and then a discretionary discount factor applied on top of that. in determining this rate, the borrower’s company-level situation matters (how good of a credit is it in lenders’ eyes?) and the global commodity price situation will also greatly influence the discount rate. herein 58qureshi, m. e., ranjan, r. and qureshi, s. e. (2010), an empirical assessment of the value of irrigation water: the case study of murrumbidgee catchment*. australian journal of agricultural and resource economics, 54: 99–118. doi:10.1111/j.1467-8489.2009.00476.x. https://hbr.org/2014/11/a-refresher-on-net-present-value https://hbr.org/2014/11/a-refresher-on-net-present-value doi:10.1111/j.1467-8489.2009.00476.x texas water journal, volume 9, number 1 economic valuation of groundwater in texas 68 inputs, defensible values are eminently achievable. actionable valuations for water assets can unlock many billions of dollars in currently constrained economic potential, including reservebacked lending, more sales and leases of water reserves in-situ, and potentially, enabling equity markets to price in the potentially significant water holdings of multiple publicly traded companies with substantial land footprints in texas. this analysis is akin to a “beta version software.” it seeks to lay the foundation for more groundwater property holders to systematically value their assets, scrutinize the methodologies presented here, and, ideally, find ways to improve upon them. as the process of iterative improvement proceeds, the groundwater value data points developed can guide the creation of economic opportunities and the resolution of disputes alike. the author also hopes that more groundwater valuation data can be made publicly available. the twdb already does an admirable job of making a substantial—and growing—repository of geospatial and hydrogeological data available to the public. augmenting this dataset with greater disclosure of groundwater transaction prices and valuations can help property owners, policy-makers, and the voting public more effectively collaborate and craft policy approaches to protect private property and optimally manage our great state’s groundwater resource base. problems arise because a 10-year time horizon in the oil and gas or farming sectors exposes projects to potentially huge commodity price risks whose timing is very difficult to predict. furthermore, there are currently no direct hedges a pure-play water seller can use to mitigate its exposure to oil and gas price fluctuations, particularly since energy producers in the permian basin generally avoid signing firmly binding take-or-pay contracts for water supplies. the current npv approach of making essentially straightline risk projections will likely need to give way to methodologies that incorporate more probabilistic assessments and better reflect the complex realities of risk in the modern global economy. as two experienced risk assessment practitioners put it in late 2016: “valuation methods—not only for infrastructure projects but in general—should start by accepting that cash flows are uncertain and treat them accordingly. that is, relying on a branch of mathematics (probability and statistics) that knows how to deal with uncertainty.”59 the same reasoning applies to water-oriented investment projects. method 7: conservation value in certain instances, water may also have a “conservation value,” in essence, an existence or preservation value. since groundwater is owned as real private property in texas, a regulatory regime aiming to preserve groundwater in place should compensate property owners for idling their natural capital assets. for surface lands, conservation easement values in texas often range between 35% and 65% of the tract’s market value.60 such a range could help anchor the determination of what property owners should be paid for groundwater assets that they forego developing for a certain time period. conclusion groundwater valuation is—and will remain—an exercise requiring analysts to make judgment calls for each specific asset and aquifer location being evaluated. but this is true of markets for many illiquid assets whose combined transaction volume is in the hundreds of billions of dollars per year globally, including other forms of real property such as residential and commercial properties as well as athletic talent, energy commodities, and intangible assets such as financial derivatives. as long as those appraising water values provide a clear and transparent accounting of their assumptions and analytical 59arturo cifuentes and david espinoza, “infrastructure investing and the peril of discounted cash flow,” the financial times, 2 november 2016, https://www.ft.com/content/c9257c6c-a0db-11e6-891e-abe238dee8e2. 60“faq page: what amount can i expect to receive from a conservation easement?,” texas agricultural land trust,” http://www.txaglandtrust.org/ faq-page/. https://www.ft.com/content/c9257c6c-a0db-11e6-891e-abe238dee8e2 http://www.txaglandtrust.org/faq-page/ http://www.txaglandtrust.org/faq-page/ desalination and long-haul water transfer as a water supply for dallas, texas: a case study of the energy-water nexus in texas texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 1, number 1september 2010 texas water journal inaugural issue desalination and long-haul water transfer as a water supply for dallas, texas climate change impacts on texas water condensing water availability models https://www.texaswaterjournal.org editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas water journal volume 1, number 1 inaugural issue september 2010 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas agrilife research, the texas agrilife extension service and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute layout editor leslie lee texas water resources institute website editor jaclyn tech texas water resources institute cover photo: © lynn mcbride https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water journal, volume 1, number 1 33 texas water resources institute texas water journal volume 1, number 1, pages 33-41, september 2010 desalination and long-haul water transfer as a water supply for dallas, texas: a case study of the energy-water nexus in texas introduction desalination is a water treatment technology that produces potable water from brackish groundwater or seawater. though many desalination technologies exist, including thermal processes such as multieffect distillation and multistage flash, the most popular is reverse osmosis (van der bruggen and vandecasteele 2002). most reverse osmosis treatment operations use a staged or cascade layout like that shown in fig. 1 to improve recovery—the ratio of permeate (product water) to feed water. historically, commercial desalination plants operated using thermal processes in locations where energy was plentiful or inexpensive and freshwater was scarce. for example, desalination provides substantial volumes of drinking water in areas of the middle east with abundant energy resources. emerging reverse osmosis technology has enabled the construction of new and larger desalination plants, yet estimated worldwide capacity totals only 15.8 billion gal/d (59.9 million m3/d), or 0.5% of global freshwater use (desalination & water reuse 2009). public resistance to desalination plants in the united states stems from both environmental and energy sustainability issues. seawater intake structures can harm marine wildlife and excessive brackish groundwater withdrawal can contribute to land subsidence (galloway et al.1999; lattemann and hopner 2008). furthermore, the large energy requirement for desalination—more than 10 times the traditional surface water treatment—contributes to greenhouse gas emissions when using fossil fuel-generated electricity (cec 2005; epri 2002b). as an alternative, wind-generated electricity can be used to power a desalination plant, as has been demonstrated in perth, australia, which switched from coal to wind power after protests, and produces 36 million gal/d (mgd) (136,000 m3/d) of potable water without emissions (barta 2008). sydney water, the water utility of sydney, australia, has also laid plans for wind-powered desalination (tadros and robins 2008). since desalination makes use of water normally considered abstract: as existing water supplies become increasingly strained in some locations, water planners turn to alternative options to quench cities’ thirst. among these options for inland cities is desalination of seawater or brackish groundwater with longhaul water transfer. desalination using reverse osmosis membranes is the most common technology in use, yet high pressures required for operation make desalination an energy-intensive water supply option. the subsequent conveyance of desalinated water through long-haul pipelines also requires large amounts of energy. to analyze desalination and long-haul transfer as a drinking water supply, dallas, texas, was chosen as a test-bed with two scenarios: seawater desalination near houston and brackish groundwater desalination near abilene, both with long-haul transfer of desalinated water to dallas. combining the energy requirements for long-distance pumping with the energy demands for desalination, we estimate that desalination and long-haul transfer is nine to 23 times more energy-intensive per unit of water than conventional treatment of local surface water sources, an increase of 230 to 630 mwh/d for 20 million gal (75,700 m3). these results suggest that desalination and long-haul transfer as a water supply for dallas is less sustainable, based on energy consumption, than use of local surface water sources or water conservation. keywords: desalination, long-haul transfer, energy, water ashlynn s. stillwell1*, carey w. king2, michael e. webber3 1 the university of texas at austin, 1 university station c1786, austin, tx 78712,2 the university of texas at austin, p.o. box b, austin, tx 78713, 3 the university of texas at austin, 1 university station c2200, austin, tx 78712 *corresponding author: ashlynn.stillwell@mail.utexas.edu 2010. ashlynn s. stillwell; carey w. king; micheal e. webber. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0 or the twj website. https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 1, number 1 34 texas water journal, volume 1, number 1 unusable, many turn to desalination as an alternative water resource when existing supplies become strained. due to the abundance of saline ocean water and brackish groundwater, desalination—and the subsequent transfer of treated water— can provide a reliable water supply that is generally plentiful and resistant to droughts. this reliability comes with a price; desalination is an energy-intensive water treatment technology. despite that price, historical trends show a near-exponential increase in installed desalination capacity in the united states (gleick et al. 2006). dallas, texas, as a case study strained water supplies and growing populations often cause cities to pursue alternative water sources. dallas, texas, is no exception. in 2003, the dallas-fort worth metropolitan statistical area population totaled 5.6 million people, which has increased annually by 2%, on average. per capita water use, as reported by the texas water development board (twdb) from water use survey data, for dallas and fort worth is 238 and 177 gal/person/ (0.90 and 0.67 m3/person/d), respectively (ward et al. 2007). this large water use in the dallas area— the third largest in texas based on twdb estimates—and others throughout the state has led water resource planners to pursue alternative water supplies for the future, with desalination among those options (herring et al. 2008; office of governor [cited 2009]; texas comptroller of public accounts [cited 2009]). one drought-resistant water supply option is seawater desalination. for example, corpus christi, texas, is currently evaluating three desalination opportunities for incremental water supply; additional water supply was added in 1998 via a 101-mi (163-km) long-haul transfer pipeline from lake texana (city of corpus christi 2009). for inland cities, desalination must be coupled with long-haul transfer to become a usable water supply. this analysis considers such a scenario for dallas. in the situation modeled here, seawater from the gulf of mexico is desalinated near houston, transferred via pipeline to a central distribution point in dallas, and then distributed to water users, as necessary. as an alternative comparison, a brackish groundwater source was analyzed for desalination near abilene and long-haul transfer to dallas. dallas was selected for this case study as an inland population center with potentially increasing water needs. while a project such as this would likely be both capitaland energy-intensive and is not currently being considered, this analysis focuses only on the energy aspects of two possible desalination and long-haul transfer scenarios and not life-cycle economic costs. competing options for increasing water supply to dallas include development of new reservoirs, construction of pipelines to connect dallas to lake palestine, fostering relationships with oklahoma water, and conservation coupled with direct and indirect water reuse (dallas water utilities department 2009). data and assumptions analysis of this desalination and long-haul water transfer scenario was completed by integrating a variety of geographic, water, and energy datasets with models for energy consumption (for pumping, treatment, and conveyance). arcgis software from esri was used for the spatial analysis and standard fluid mechanics equations were used for the pipeline analysis. to simulate the desalination and long-haul transfer scenario, certain data and assumptions were necessary. our analysis relied on a variety of datasets for the simulation, including the following: global 30 arc-second elevation dataset (usgs [mod• 2009]) – this 1-km digital elevation model (dem) was used to determine elevation changes between the desalination plants near houston and abilene and the cendesalination and long-haul water transfer as a water supply for dallas, texas fig. 1. typical reverse osmosis units are configured in a cascade layout to improve water recovery, which typically ranges from 35% to 50% for seawater and 60% to 85% for brackish groundwater (lawler and benjamin 2008; zander et al. 2008). texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 35 tralized distribution point in dallas. the 1-km dem was appropriate for this analysis to represent topographic variability at sufficient scale. roads/highways of texas (texas glo [cited 2008]) –• this u.s. department of transportation dataset showing major roads and highways in texas was used to determine state-owned right-of-ways as a possible water pipeline route. major texas river basins (twdb [cited 2008]) – this• dataset from the twdb was used to analyze which river basins were crossed by the long-haul pipeline. google earth latitude and longitude – google earth• was used to estimate latitude and longitude of the potential desalination plants and centralized distribution point. existing brackish groundwater wells• (twdb 2009) – this dataset from the twdb was used to determine locations and water quality of existing brackish groundwater wells near abilene. energy for desalination (cec 2005) – reported rang-• es of energy for desalination of seawater and brackish groundwater were used to determine energy consumption for water treatment. the following assumptions provide the basis for scenario evaluation: desalination capacity of 20 mgd (75,700 m• 3/d) – this treatment capacity is sufficient for 100,000 people at a mid-range current water use of 200 gal/person/d (0.76 m3/person/d). this mid-range estimate is based on current per capita water use of 238 and 177 gal/person/day (0.90 and 0.67 m3/person/d) in dallas and fort worth, respectively, as calculated by the twdb (ward et al. 2007). real estate available for desalination – though demand• for coastal property is high, this simulation assumes land is available for the seawater desalination facility. while the data described above were generally reported in consistent formats, energy analysis is not a built-in function of the elevation capabilities of arcgis. as a result, raw elevation data exported to a spreadsheet were used for the pipeline simulation. methodology dem and facility locations to begin the desalination with long-haul transfer to dallas simulation, a 1-km dem was used to represent elevation changes along the water pipeline route. the dem and all other arcgis layers were projected using the north american desalination and long-haul water transfer as a water supply for dallas, texas fig. 2. major texas roads and highways were used to determine the right-of-way long-haul pipeline routes such that the routes follow existing easements. the brackish groundwater pipeline is shown traveling west to east and the seawater pipeline is shown traveling southeast to northwest. 21 fig. 3. a map of the right-of-way water pipeline for long-haul transfer illustrates a more practical pipeline route from a property rights perspective. fig. 4. an alternative desalination and long-haul transfer water supply for dallas analyzed here is brackish groundwater desalination near abilene with a long-haul pipeline following existing road right-of-ways. fig. 4. an alternative desalination and long-haul transfer water supply for dallas analyzed here is brackish groundwater desalination near abilene with a long-haul pipeline following existing road right-of-ways. fig. 3. a map of the right-of-way water pipeline for long-haul transfer illustrates a more practical pipeline route from a property rights perspective. texas water journal, volume 1, number 1 36 texas water journal, volume 1, number 1 datum 1983 texas statewide mapping system projection. this dem for the state of texas was extracted from the u.s. geological survey 30 arc-second dem using the raster calculator function in arcgis 9.3. pipeline routing to simulate the long-haul water pipeline in arcgis, routes were drawn between the two facility points. a shortest-distance, straight-line approach was initially considered due to the possibility that is would be the lowest energy consumption option, but such a pipeline is impractical from a property rights perspective; thus a straight-line pipeline was excluded from the final analysis. if a long-haul project such as this were to be implemented, the pipeline would likely follow existing right-of-ways. possible routes for the seawater and brackish groundwater long-haul pipelines might follow existing rightof-ways of major state roads, shown in fig. 2, where easements could be used as pipeline routes. adding the seawater rightof-way pipeline route shown in fig. 2 to the dem creates the pipeline route illustrated in fig. 3. the brackish groundwater right-of-way pipeline, combined with the dem, is shown in fig. 4. as additional analysis, a layer for major river basins in texas was added to the dem and simulated pipelines. illustrated in fig. 5, the seawater right-of-way pipeline begins in the trinity-san jacinto river basin at the desalination plant, then passes into the trinity and san jacinto basins, returns to the trinity basin, and then passes briefly into the brazos river basin before returning to the trinity basin at the distribution point. the brackish groundwater right-of-way pipeline, shown in fig. 6, begins in the brazos basin and then passes into the colorado river basin before returning to the brazos basin and ending in the trinity basin. while this case study considers two possible pipeline routes, many routes are possible between the desalination plants and distribution point. desalination and long-haul water transfer as a water supply for dallas, texas fig. 5. the seawater right-of-way long-haul transfer pipeline passes back and forth between major river basins: trinity-san jacinto, trinity, san jacinto, and brazos, before ending in the trinity basin. fig. 6. the brackish groundwater right-of-way long-haul transfer pipeline begins in the brazos basin and moves into the colorado, before returning to the brazos and ending in the trinity basin. texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 37 treatment and long-haul transfer were considered separately. seawater desalination requires 9,780 to 16,500 kwh/106 gal, while brackish groundwater requires 3,900 to 9,750 kwh/106 gal (cec 2005). for treatment of 20 mgd (75,700 m3/d), the energy requirements for seawater desalination using reverse osmosis total 196 to 330 mwh/d, while brackish groundwater desalination consumes 78 to 195 mwh/d. to calculate the energy requirements for long-haul transfer, both the elevation change and pipeline distance were considered. the power for overcoming the potential energy of raising the elevation of the water is: = ρqg∆h (1) in equation 1, is the change in potential energy per time, ρ is the fluid density, q is the flow rate, g is acceleration due to gravity, and ∆h is the net or cumulative change in height. elevation change using 3d analyst to determine the elevation change over the route of the rightof-way long-haul water pipelines, the 3d analyst capabilities of arcgis were used to measure elevation changes along the route. following the pipeline routes, the profile graph shown in fig. 7 was generated, providing a snapshot of the elevation cross section for the seawater and brackish groundwater pipelines, respectively. the net elevation change between the proposed seawater desalination plant in the houston area and dallas was measured as 125 m. since the elevation decreases between the proposed brackish groundwater desalination plant in abilene and the distribution point in dallas, the net elevation change is negative at -385 m. additionally, the cumulative elevation was measured as the summation of elevation increases measured in the direction of flow. while it is possible to generate energy during downward flows (similar to what is done in california, where water from the owens valley generates electricity with in-line turbines on its way downhill to los angeles) elevation decreases in the direction of flow are ignored to provide a high estimate of energy consumption. this high energy-consumption estimate represents a worst-case scenario, which could be used to determine whether in-line turbines or other energyrecovery devices are necessary. complete energy recovery on downhill runs—that is, using only the net elevation change between the desalination plant and the distribution point— was used as a low estimate of energy consumption. the net elevation change, cumulative elevation change, and pipeline distance from fig. 7 are provided in the data shown in table 1. these data were then used to calculate energy needed for long-haul water transfer. results to calculate the energy required by the desalination and long-haul transfer scenarios discussed above, the desalination desalination and long-haul water transfer as a water supply for dallas, texas net elevation change (m) pipeline length (km) cumulative elevation change (m) seawater right-of-way pipeline 125 434 939 brackish groundwater right-of-way pipeline -385 325 1,010 table 2. estimated and measured parameters for calculations in the long-haul transfer pipeline were used to determine energy consumption of water transfer. parameter value units acceleration due to gravity, g 9.81 m/s2 density, ρ 997.08 kg/m3 flow rate, q 20 (0.8763) mgd (m3/s) friction factor, f (bertin 1987) 0.0115 unitless height, ∆h see table 1 m length, ∆l see table 1 m pipe diameter, d 3.66 m velocity, v 0.305 m/s viscosity, μ 8.94e-04 kg/m∙s ∆ep______ ∆t ∆ep______ ∆t table 1. pipeline length and cumulative elevation change for the long-haul pipeline routes were used to determine total energy consumed for long-haul transfer. texas water journal, volume 1, number 1 38 texas water journal, volume 1, number 1 for the flow rate of 20 mgd (75,700 m3/d), overcoming net elevation changes in the seawater pipeline (a low estimate of energy consumption for elevation changes, assuming complete energy recovery on downhill runs) requires approximately 26 mwh/d; overcoming cumulative elevation changes (a high estimate of energy consumption for elevation changes with no energy recovery on downhill runs) requires 193 mwh/d for right-of-way water transfer. since the net elevation change of the brackish groundwater pipeline is negative, no energy is required to overcome net elevation changes; power generation might be possible, depending on sharp elevation increases along the route, but zero is used here as an approximation. for cumulative elevation changes, the brackish groundwater long-haul transfer requires 208 mwh/d. note that although the net elevation change of the brackish groundwater scenario is negative, the cumulative elevation change of the downhill brackish groundwater pipeline is greater than that of the uphill seawater pipeline. thus, these scenarios illustrate that a pipeline with an overall downhill route does not necessarily require less energy than an uphill route due to cumulative elevation changes along the pipeline. additional energy is required to overcome friction within the pipeline. for turbulent flow in the pipeline, the darcyweisbach equation can be used to estimate head loss due to friction: h f = f in equation 2, h f is the head loss due to friction, f is the friction factor, ∆l is the pipe length, v is the average fluid velocity, and d is the inside pipe diameter. the friction factor f was estimated using a moody diagram (bertin 1987). using the head loss calculated from the parameters in table 2 and equation 2, the additional energy requirement to overcome pipe friction is 1.3 mwh/d and 1.0 mwh/d for seawater and brackish groundwater right-of-way transfer, respectively. factoring in high-flow pump efficiencies of 65% (cat 2009) and additional distribution from the centralized point in dallas to consumer homes at 1.2 mwh/106 gal, estimated total energy consumption is 261 to 653 mwh/d for seawater desalination and 423 to 540 mwh/d for brackish groundwater desalination, both with right-of-way transfer. energy requirements for the two water supply options are shown in table 3, showing energy for treatment and distribution with long-haul transfer for desalination. based on estimated energy consumption totals compared to conventional local surface water treatment, the total energy use of 261 to 653 mwh/d is nine to 23 times more energyintensive than conventional water treatment from local surface sources at 28.5 mwh/d for 20 mgd (75,700 m3/d). note that here conventional local surface water treatment is based on national average values of energy consumption for water treatment and distribution. energy-consumption data for water collection, treatment, and distribution are not directly meadesalination and long-haul water transfer as a water supply for dallas, texas fig. 7. elevation profiles for the seawater and brackish groundwater pipelines show a general uphill route for seawater and downhill route for brackish groundwater. despite these trends, elevation increases along the brackish groundwater pipeline are larger than those increases of the seawater pipeline. v2 ∆l___ ___ 2g d (2) texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 39 sured and reported in texas, thus this comparison to national average values of energy consumption serves as the baseline for our analysis. implications the desalination and long-haul transfer simulation presented above represents a highly energy-intensive water supply for dallas. for the 100,000 people served by this scenario, the energy requirements total approximately 2.61 to 6.53 kwh per person per day. on average, texans used 39.1 kwh of electricity per person per day in 2008 (eia 2010; u.s. census bureau [cited 2010]). implementation of this desalination and long-haul transfer project causes a 7% to 17% average increase in daily energy consumption per person that uses the desalinated water. additional electricity generation releases additional air emissions, depending on the fuel source for power generation. for coal and natural gas, which generate much of the electricity consumed in texas, the daily air emissions for 653 mwh, the high estimate of a desalination and long-haul transfer scenario, are shown in table 4. thermoelectric power generation using coal or natural gas combined-cycle power plants also requires water for cooling. generation of 653 mwh would withdraw 150,000 and 359,000 gal and consume 118,000 and 313,000 gal for natural gas combined-cycle and coal power generation, respectively, both using cooling towers (epri 2002a; stillwell et al. 2009). while nuclear power would not directly produce air emissions like coal and natural gas, generation of 653 mwh with nuclear power would withdraw 620,000 gal and consume 470,000 gal using cooling towers (epri 2002a; stillwell et al. 2009). for seawater desalination (with 50% recovery) and long-haul transfer, total water withdrawals for desalination and power generation could reach 40.6 million gal (154,000 m3) for delivery of 20 million gal (75,700 m3) of desalinated water. similarly, brackish groundwater desalination (with 90% recovery) and long-haul transfer could total 22.8 million gal (86,500 m3) of water withdrawn to deliver 20 million gal (75,700 m3) of desalinated water. this feedback loop of alternative water supplies requiring additional energy, which requires water for power generation, might become increasingly more important desalination and long-haul water transfer as a water supply for dallas, texas treatment (mwh/d) long-haul transfer (mwh/d) distribution (mwh/d) total (mwh/d) seawater desalination + longhaul transfer 196-330 41.4-299 24.1 261-653 brackish groundwater desalination + long-haul transfer 78-195 321 24.1 423-540 conventional surface water 4.4 0 24.1 28.5 desalination with long-haul transfer and distribution conventional surface water treatment with distribution coal natural gas coal natural gas co 2 (kg/d) 679,000 340,000 25,100 12,500 so 2 (kg/d) 2,020 296 74 11 no x (kg/d) 1,480 8.9 55 0.3 table 3. a comparison of the energy consumption for the cases with conventional surface water treatment shows a much larger energy requirement for desalination and long-haul transfer (epri 2002b). table 4. daily air emissions from electricity generation of 653 mwh using coal and natural gas show the desalination and long-haul transfer scenario to produce large quantities of greenhouse gases (co2) and criteria pollutants (so2 and nox) compared to conventional surface water treatment (epa [mod 2010]). texas water journal, volume 1, number 1 40 texas water journal, volume 1, number 1 desalination and long-haul water transfer as a water supply for dallas, texas as water managers seek the next increment of water supply. while a desalination and long-haul transfer project would provide a plentiful source of water for dallas, additional electricity consumption and increased air emissions are trade-offs for securing water. notably, if nuclear, wind, or solar power were used, the emissions would be zero. analysis of the elevation profiles of the seawater and brackish groundwater long-haul pipelines shows that cumulative elevation changes along the route are important for energy consumption for pumping. while the brackish groundwater pipeline has a general downhill trend, the cumulative elevation changes along the route are greater than that of the uphill seawater pipeline. thus, we cannot assume that downhill longhaul water transfer consumes less energy than uphill transfer consumes, depending on whether energy capture via in-line turbines is deployed. elevation analysis becomes necessary to evaluate energy consumption from moving water long distances. additional reliability concerns might arise in response to a desalination and long-haul water transfer scenario. while reverse osmosis technology is reliable, external factors can affect the consistency of the seawater supply. the selected location of the seawater desalination plant is close to trinity bay as a source of seawater. though a location near the shore minimizes raw seawater pumping distance, such a location is also susceptible to inclement weather during hurricane season. additionally, recreational and commercial activity in trinity bay may degrade influent water quality by increasing suspended sediment, as was observed during pilot-scale testing for a seawater desalination plant in brownsville, texas (herring et al. 2008). discharge of seawater reverse osmosis concentrate can also harm marine life due to elevated levels of salinity (lattemann and hopner 2008). multiple factors regarding human behavior figure into such an alternative water supply option as desalination and longhaul water transfer. quantity of water consumption is not constant and might increase or decrease over time. additionally, lower cost options such as conservation and redistribution to high-valued water applications may replace or reduce pursuit of new water supplies (zander et al. 2008). another option for providing the next increment of water supply is implementation of desalination in coastal communities in texas, eliminating the need for long-haul water transfer. as coastal communities move to seawater or brackish water sources, holding surface water rights in these communities might no longer be necessary, opening up the possibility for inland cities to negotiate contracts for local surface water sources. while transfer of existing surface water rights would require complex legal negotiations, such a redistribution of water sources, would likely decrease energy consumption for water pumping over long distances. conclusions while desalination and long-haul transfer of treated water might improve the resiliency of water supply to dallas, this water comes with a large cost of additional energy consumption and attendant emissions. such a water treatment and supply system is nine to 23 times more energy-intensive than conventional surface water treatment of local sources for drinking water. sustainability of a water supply includes all aspects of the water system: collection, treatment, disinfection, and distribution. seawater desalination near houston, texas, or brackish groundwater desalination near abilene, texas, with subsequent long-haul water transfer to dallas, texas, requires additional energy over local surface water sources for both treatment and distribution. however, desalination and longhaul transfer might be appropriate as a back-up water supply during times of drought. the increased energy requirement, along with reliability concerns due to weather and influent water quality, might make desalination and long-haul transfer as a water supply scenario less sustainable than other alternatives, including conservation and end-use transfer. acknowledgments the authors would like to thank dr. david maidment and dr. desmond lawler, the university of texas at austin, and amy hardberger, environmental defense fund, for their contributions to this research. this research was supported by the energy foundation and the texas state energy conservation office. references barta p. 2008 mar 11. amid water shortage, australia looks to the sea. wall street journal [internet]. available from: http://online.wsj.com/article/sb120518234721525073. html bertin jj. 1987. engineering fluid mechanics. englewood cliffs (nj): prentice-hall, inc. 528 p. cat. 2009. cat pumps. minneapolis (mn): cat pumps. available from: http://www.catpumps.com/select/ pdfs/4k111.pdf [cec] california energy commission. 2005. california’s water-energy relationship. sacramento (ca): california energy commission. 174 p. available from: http://www. energy.ca.gov/2005publications/cec-700-2005-011/ cec-700-2005-011-sf.pdf texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 41desalination and long-haul water transfer as a water supply for dallas, texas city of corpus christi [internet]. c2009. corpus christi (tx): city of corpus christi. water resources: local water supply; [cited 2010 apr 9]. available from: http://www. cctexas.com/?fuseaction=main.view&page=1009 dallas water utilities department. 2009. the path to 2060: dallas’ long range water supply plan. dallas: dallas water utilities department. desalination & water reuse. 2009 nov 8. total world desalination capacity close to 60 million m3/d [internet]. surrey (uk): faversham house group; [cited 2010 apr 10]. available from: http://www.desalination.biz/news/ news_story.asp?id=5121 [epri] electric power research institute. 2002a. water & sustainability (volume 3): u.s. water consumption for power production – the next half century. palo alto (ca): electric power research institute. 1006786. 57 p. [epri] electric power research institute. 2002b. water & sustainability (volume 4): u.s. electricity consumption for water supply & treatment – the next half century. palo alto (ca): electric power research institute. 1006787. 93 p. galloway d, jones dr, ingebritsen se. 1999. land subsidence in the united states. reston (va): u.s. geological survey. 175 p. gleick ph, cooley h, katz d, lee e, morrison j, palaniappan m, samulon a, wolff gh. 2006. the world’s water 2006-2007: the biennial report on freshwater resources. oakland (ca): pacific institute. 392 p. herring je, hunt j, crutcher jm, labatt tw 3rd, vaughan eg, mcmahan lh, ward jk. 2008. the future of desalination in texas. austin: texas water development board. 73 p. lattemann s, hopner t. 2008. environmental impact and impact assessment of seawater desalination. desalination 220(1-3):1-15. lawler d, benjamin m. forthcoming. physical and chemical treatment processes for water. new york: mcgraw hill. office of the governor (tx). [internet]. [cited 2009 oct 1]. austin: office of the governor. seawater desalination in texas. available from: http://governor.state.tx.us/priorities/infrastructure/natural_resources/seawater_desalination_in_texas/ stillwell as, king cw, webber me, duncan ij, hardberger a. 2009. energy-water nexus in texas. austin : university of texas at austin, environmental defense fund. 51 p. tadros e, robins b. 2008 may 14. wind farm vow to power desalination [internet]. the sydney morning herald; [cited 2009 mar 16]. available from: http://www.smh. com.au/news/environment/wind-farm-vow-to-powerdesalination/2008/05/13/1210444436869.html texas comptroller of public accounts [internet]. [cited 2009 oct 1]. austin: texas general land office. texas in focus: south texas infrastructure. available from: http:// www.window.state.tx.us/specialrpt/tif/southtexas/infrastructure.html [texas glo]. texas general land office [internet]. [cited 2008 dec 3]. austin: texas general land office. maps, research & data, geographic information systems data. available from: http://www.glo.state.tx.us/gisdata/gisdata. html [twdb] texas water development board [internet]. [cited 2008 dec 5]. austin: texas water development board. gis data. available from: http://www.twdb.state.tx.us/ mapping/gisdata.asp [twdb] texas water development board. 2009. austin: texas water development board brackish groundwater dataset. [obtained from: personal communication 2009 oct 13] u.s. census bureau. [internet]. [cited 2010 apr 10]. washington dc: u.s. census bureau. general demographic characteristics, 2008 population estimates. available from: http://factfinder.census.gov/servlet/qttable?_ bm=y&-context=qt&-qr_name=pep_2008_est_ dp1&-ds_name=pep_2008_est&-context=qt&t r e e _ i d = 8 0 8 & g e o _ i d = 0 4 0 0 0 u s 4 8 & s e a r c h _ results=01000us&-format=-_lang=en [us eia] u.s. energy information administration [internet]. 2010 mar. washington dc: u.s. energy information administration. independent statistics and analysis, texas electricity profile. 2008 edition; [cited 2010 apr 10]. available from: http://www.eia.doe.gov/cneaf/electricity/ st_profiles/texas.html [us epa] u.s. environmental protection agency [internet]. [modified 2010 jul 19]. washington dc: u.s. environmental protection agency. clean energy, egrid; [cited 2008 dec 3]. available from: http://www.epa.gov/ cleanenergy/energy-resources/egrid/index.html [usgs] u.s. geological survey, earth resources observation and science center. [internet]. [modified 2009 oct 20]. sioux falls (sd): u.s. geological survey, earth resources observation and science center; gtopo30; [cited 2008 dec 3]. available from: http://eros.usgs.gov/#/find_data/ products_and_data_available/gtopo30_info van der bruggen b, vandecasteele c. 2002. distillation vs. membrane filtration: overview of process evolutions in seawater. desalination 143(3):207-218. ward jk, mullican wf 3rd, and brittin cl. 2007. water for texas 2007. austin: texas water development board. zander ak, elimelech m, furukawa dh, gleick p, herd k, jones kl, rolchigo p, sethi s, tonner j, vaux hj, weis js, wood ww. 2008. desalination: a national perspective. washington dc: national academies press. 2010 vol1num1cover final 2010 vol1num1 desal _ final 2010 vol1num1cover final 2010 vol1num1 desal _ final residential outdoor water use in one east texas community texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 6 number 1 2015 texas water journal http://texaswaterjournal.org volume 6, number 1 2015 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: anzalduas dam in hidalgo county. photo courtesy of the texas water development board. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 6, number 1, pages 79–85 abstract: municipalities continue to implement efforts to encourage water conservation among residents. landscape irrigation has been central to many of those conservation efforts. reference evapotranspiration data is a tool that can be used in determining the appropriate amount of water to apply to amenity landscapes. monthly water-use data for 3 years was examined in 1 neighborhood in huntsville, texas. the irrigated area for 1,229 residents was calculated and used to determine the depth of monthly irrigation for each residence. replacement of 100% of local reference evapotranspiration data, minus rainfall, was used as a determinant of how much water to apply to the landscape each month for 3 years. potential over-irrigation for each month was then compiled. data expressed that over-irrigation was occurring among 99.51% of residents, of which 12% of these residents over-irrigated by at least 100,000 gallons in at least 1 month during the 36 month study. in 2011, the entire neighborhood of study over-irrigated by 21.2 million gallons. outdoor water use accounted for 64% of the total water use by households. average indoor water usage was 4,302 gallons per month. based on the data overall, greater conservation efforts in landscape irrigation are crucial for texas residents if water demands are to be met in the 21st century. keywords: evapotranspiration, outdoor water use, indoor water use, residential irrigation timothy r. pannkuk* and lawrence a. wolfskill residential outdoor water use in one east texas community department of agricultural sciences and engineering technology, p.o. box 2088, sam houston state university, huntsville, texas, 77340 * corresponding author: pannkuk@shsu.edu texas water journal, volume 6, number 1 citation: pannkuk tr, wolfskill la. 2015. residential outdoor water use in one east texas community. texas water journal. 6(1):79-85. available from: https://doi.org/10.21423/twj.v6i1.7009. © 2015 timothy r. pannkuk, lawrence a. wolfskill. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:pannkuk@shsu.edu https://doi.org/10.21423/twj.v6i1.7009 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 6, number 1 residential outdoor water use 80 introduction potential estimated deficits between water use and water availability continues to be a topic of concern in texas. on may 28, 2013, the texas governor signed house bill 4, which presented texas voters with the option of transferring $2 billion from the state’s economic stabilization fund, or rainy day fund, to the existing $6 billion in the texas water development board’s bond authority. these funds are dedicated to implementing capital projects in the state’s 50-year water plan. on november 5, 2013, 73% of texas voters approved proposition 6, which enabled 2 funds that will help finance projects in the state water plan (twdb 2013). municipal-urban water use in texas has grown to be the second largest water use activity in texas behind irrigated agriculture (twdb 2012). water use in irrigated agriculture has stabilized in recent years due to fewer irrigated acres and greater irrigation efficiency on farms. however, municipal-urban water use continues to increase primarily due to increases in population. the texas water development board (2012) forecasts that the texas population will increase by 82% from 2010 to 2060, and water demand will increase by 22%. however, water supplies (surface water, groundwater, and re-use water) are predicted to decrease by about 10% over the same period of time. information from the state water plan suggests that if texas does not implement new water projects or plans of management, then farms, businesses, and homes are projected to need 8.3 million acre-feet of additional water supply by 2060 (twdb 2012). in 2060, irrigation represents an estimated 45% of this total need, and municipal users account for 41% of needs (twdb 2012). if these water needs are not met, it will result in economic losses and millions of lost jobs by 2060. water conservation is one of a variety of methods that can be used to curb the projected increase in water demand in texas. other methods include demand-side management (e.g. time-of-day or day-of-week restrictions on outdoor water use and banning certain activities such as car-washing) and (sub)urban planning to design low water use into future municipality expansions. in the municipal-urban water-use sector, where the number of users is continually increasing, conservation has become an integral part of the plan to supply enough water. beyond human consumption, water has a variety of uses by the municipal user, including: recreation, cleaning, and irrigating the outdoor environment. residential lawn irrigation has been suggested as a large user of municipal water supply; however that conjecture has not been well tested in the literature (runfola et al. 2013). regardless, outdoor irrigation is a highly visible practice and has been the target of many conservation efforts (austin water utility 2014; dallas water utilities 2014a; saws 2014). the u.s. geological survey (kenny et al. 2009) found that about 349 billion gallons of freshwater are withdrawn each day in the nation by humans. irrigation withdrawals accounted for 37% of all freshwater withdrawals and 62% of all freshwater withdrawals excluding withdrawals used for thermoelectric power production (kenny et al. 2009). in 2005 — the latest data available from the u.s. geological survey — residential water use totaled 29.4 billion gallons per day (kenny et al. 2009). in 1999, mean residential outdoor water use accounted for 31.4% of total use in single-family homes (doe 2011). some estimates of outdoor water use are nearly 50% to 80% of the total residential use (kjelgren 2000; vickers 2001). the u.s. environmental protection agency (2009) estimates that over half of this water is used for irrigating plants, including lawns. to remain healthy and aesthetically pleasing, most plants in the home landscape typically have to be irrigated periodically to supplement insufficient rainfall. an irrigated landscape has a variety of benefits (frank 2003). landscape plants increase property value, benefit individuals psychologically, and reduce noise and pollution. water conservation methods, tools, and practices include: improved irrigation efficiency, time-of-day watering, odd-even address watering days, rain-off sensors on automatic systems, increased water rates, drought-tolerant plants, and irrigation based on soil moisture or climatological conditions. many water purveyors and municipalities provide recommendations for conserving water in the landscape (e.g., city of houston 2014; city of lubbock 2014; dallas water utilities 2014b; lcra 2014; saws 2014). one effective method is to adjust landscape irrigation based on climatological conditions. this technique most often uses rainfall information to cancel watering whenever significant rainfall is detected. including reference evapotranspiration from local weather station data can substantially increase the efficiency of irrigation measures (mccready et al. 2009). reference evapotranspiration is calculated from local daily temperature, humidity, wind speed, and radiant energy (allen et al. 1998). the reference evapotranspiration calculation can be used over multi-day periods to determine how much irrigation water to apply to a crop or a landscape (pannkuk et al. 2010). landscape irrigation based on the principles of reference evapotranspiration is an emerging area of water conservation. outdoor water use for irrigation varies geographically and seasonally (kjelgren et al. 2000; pannkuk et al. 2010; cabrera et al. 2013). a recent study analyzed water consumption patterns in standard new homes and in high-efficiency new homes built after 2001 (deoreo et al. 2011). in that study, only new standard homes had outdoor water use measured, and annual outdoor water use averaged 84,000 gallons. in another recent study, hermitte and mace (2012) analyzed metered water-use data from single-family residential connections from 2004 through 2011 from 259 municipalities across texas water journal, volume 6, number 1 81residential outdoor water use texas. in that study, outdoor water as a percentage of total water use varied from a low of 13% in galena park to a high of 64% in gail. the weighted average across the entire state was 31% of the total water use. average outdoor water usage in gallons was also calculated per household for urban areas. houston had the low at 37 gallons per household per day, and the high was tyler at 195 gallons per household per day. the hermitte and mace (2012) study concludes by recommending that a multi-year study of geographically diverse texas cities involving individual surveys, billing data, and climatic data be conducted. this type of household-level exploration of single-family residential water consumption would provide more conclusive evidence of how we use our water. the purpose of this study is to examine residential outdoor water use in one neighborhood in huntsville, texas. to accomplish this goal, we used the following: monthly residential water use by household for 3 years, the measured area receiving irrigation for each residential user, monthly local rainfall, and reference evapotranspiration data. these tools provided us with the ability to accurately measure landscape water use each month as well as calculate potential over-irrigation based on actual landscape water needs. materials and methods the city of huntsville, texas provided monthly billed water usage data for 2009, 2010, and 2011. the data comprised 1,229 residential units (substantially all) in one neighborhood of the city. before we received the data, the names and addresses were removed, and a unique identifier was applied to each residence. the city of huntsville also allowed the researchers to use their arcgis© mapping platform and gis data to measure the lot size, built area, and the irrigated area within each homeowner’s lot. to determine outdoor water usage, researchers measure or estimate indoor usage, and subtract that from total billed water usage. thus, an accurate measure of indoor usage is critical to proper analysis. romero and dukes (2011) identified several methods that could be used to make the estimate. the most common method in the literature is to assume that winter usage includes a negligible amount of landscape watering, therefore the average monthly usage during the winter months must be subtracted from each month’s metered consumption. while not exact, this method allows for reasonable estimates without requiring individual homes to be metered separately at each outdoor hose bib and is considered to be adequate for areas where a defined winter season exists. another method used in the literature involves estimating per capita consumption patterns and applying the rate to each household (deoreo et al. 2011). various rates have been proffered, including 0.57 cubic meters per person per day (hanemann 1997) and 0.38 cubic meters, from the u.s. environmental protection agency (2009). these 2 figures include both indoor and outdoor usage, and the u.s. environmental protection agency estimates that approximately 30% of the total would be dedicated to outdoor use, while haley et al. (2007) found in their study that 36% of the total water consumption was outdoors. for this study, the indoor water usage was calculated for each residence from an average usage from november through february (romero and dukes 2011), a time when residents do not normally use outdoor irrigation. during this period, the city measures water usage to calculate sewer rates, so residents are encouraged through bill notices and advertising to limit outdoor water usage to minimize their sewer bill for the upcoming year. this average indoor usage for each residence was subtracted from the remaining months to estimate outdoor water usage. the outdoor water usage, in gallons, was converted to a depth of water, in inches, using the irrigated area information. local monthly reference evapotranspiration and monthly rainfall data were then used to determine net water loss in the landscape, which must be replaced using lawn irrigation to maintain a healthy landscape (figure 1). the depth of monthly outdoor water usage was compared to that month’s reference evapotranspiration minus rainfall depth. this calculation created an overwatering/underwatering figure. an example is presented in table 1 for 1 customer over a 12-month period during 2009. for the customer in this example, overwatering in 2009 was by 12.56 inches, or 8,488 gallons of water. underwatering figures were converted to zeros. overwatering figures were calculated monthly and then compiled for each year by residence. results for the neighborhood under study, the 1,229 households had an average irrigation area of 9,300 square feet. not every property had the full 3 years of monthly data available, and the average number of months of data were 34.5 of the 36 possible months. eight of the lots (0.7%) had less than 1 year of data available, but we did not choose to discard these data although they could slightly affect the results. the majority of the properties (885, 72.0%) had 36 months of data. average monthly total water usage for all the properties was 11,878 gallons per month. of this total, an average of 4,302 gallons (36.2%) was used indoors per household per month. for calculating the outdoor need, we used 100% replacement of monthly reference evapotranspiration values, minus rainfall, as the base amount of irrigation water that should be applied each month to the landscape. based on this calculation, 277 residences (22.5%) overwatered by at least 50,000 gallons in texas water journal, volume 6, number 1 residential outdoor water use 82 at least 1 of the years under study, and 148 residences (12%) overwatered by at least 100,000 gallons in at least 1 of those years (figure 2). the entire neighborhood overwatered by about 28.9 million gallons in both 2009 and 2010. in 2011, during a severe drought, the total amount of overwatering was 21.2 million gallons. note that this is not the amount of water needed for irrigation each year but rather an extra amount of water that is above the rainfall plus reference evapotranspiration requirement. it could be considered “wasted water.” over the 3-year period of study, only 6 of 1,229 households (0.49%) did not have a net level of overwatering. a common method in the industry for considering landscape watering relates to inches of irrigation, which is comparable from one site to another, irrespective of the actual square footage of each site. for the properties under study, the average overwatering per month was 0.62 inches, with a maximum of 33.55 inches (figure 2). of the studied households, 173 (14.1%) had a monthly average overwatering of at least 1 inch for all the months recorded for that property. figure 1. total reference evapotranspiration, precipitation, and irrigation depth need by year. figure 1. total reference evapotranspiration (ret), precipitation, and irrigation depth need by year. table 1. example of data organization and calculation from one household in 2009 with a lot area, building area, pavement area, and irrigation area of 12200, 3237, 633, and 8329 square feet, respectively. billing date total consumption (gallons) outdoor usage (gallons) depth of irrigation (inches) reference evapotranspiration (inches) rainfall (inches) reference evapotranspiration rainfall (inches) excess monthly water (inches) 20090210 12100 5660 1.10 2.66 1.06 1.6 0.00 20090310 11900 5460 1.06 3.50 1.9 1.6 0.00 20090408 21800 15360 2.97 3.97 4.85 0 2.97 20090511 9600 3160 0.61 4.87 7.84 0 0.61 20090611 31000 24560 4.76 5.66 2.68 2.98 1.78 20090714 45200 38760 7.51 7.36 0.25 7.11 0.40 20090811 41000 34560 6.69 7.47 3.51 3.96 2.73 20090914 30000 23560 4.56 6.71 2.70 4.01 0.55 20091013 13200 6760 1.31 3.86 5.56 0 1.31 20091112 5100 0 0.00 3.18 9.68 0 0.00 20091211 7400 960 0.19 2.17 1.87 0.3 0.00 20100112 5400 0 0.00 1.54 5.48 0 0.00 texas water journal, volume 6, number 1 83residential outdoor water use we also performed correlation analysis on the variables being examined to further understand any trends in landscape water use. for this analysis, the proc corr procedure of sas v9 was utilized (sas 2002). there was no correlation between the size of the irrigated area and the amount of overwatering. this suggests that overwatering is occurring in all sizes of landscapes. there was also a lack of correlation between monthly indoor usage and the amount of overwatering. this is in contrast somewhat to a finding by tinker and woods (2000) that found a positive correlation between indoor water usage and outdoor water usage. conclusions and implications this study took a systematic approach in measuring indoor and outdoor residential water usage in one community in southeast texas. monthly water bills and irrigated area of each landscape were used in the calculations. data provide conclusive evidence of how water was used over a 3-year period. potential shortcomings of the study include the lack of analysis of water cost and the subsequent effects on water usage and the lack of inclusion of income data per household. water is being wasted in texas residential landscapes during periods of both drought and plentiful rainfall. this wasted water increases demand for pumping, purchase, piping, and treatment of water by the water purveyor. if all the residents of this 1 neighborhood had watered based on reference evapotranspiration, then the yearly demand for the entire city of huntsville, texas would have decreased to the point whereby a new water well would not have been needed in 2012 (reed 2011). the new well cost the city of huntsville between $1.2 and $1.5 million (brock 2011). this cost should be a powerful economic motive. in the long run, water users will not pay as much for their overall water bill if expensive water supply projects are delayed by 20 or more years due to conservation efforts. if texas is to meet its future water needs, then effective water conservation must be an integral input. increased education and awareness of reference evapotranspiration principles for landscape watering as well as water purveyors focusing additional conservation information on individual homeowners who waste water, are proving to be viable solutions. one possibility for additional conservation information is providing homeowners a monthly “water budget” based on the size of their landscape. as the scarcity of water increases, evidence indicates that water costs will also rise (white 2012), and this too will further induce conservation. figure 2. number of households classified by total depth of overwatering, in inches. figure 2. number of households classified by total depth of overwatering, in inches. texas water journal, volume 6, number 1 residential outdoor water use 84 references allen rg, pereira ls, raes d, smith m. 1998. crop evapotranspiration – guidelines for computing crop water requirements [internet]. rome (italy): food and agriculture organization of the united nations; [cited 2014 january 10]. chapter 2, fao penman-monteith equation. 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[lcra] lower colorado river authority. 2014. save water [internet]. austin (texas): lower colorado river authority; [cited 2014 january 10]. available from: http://www. lcra.org/water/save-water/watersmart/pages/default.aspx/ mccready ms, dukes md, miller gl. 2009. water conservation potential of smart irrigation controllers on st. augustine grass. agricultural water management. 96(11):16231632. pannkuk tr, white rh, steinke k, aitkenhead-peterson ja, chalmers dr, thomas jc. 2010. landscape coefficients for singleand mixed-species landscapes. hortscience. 45(10):1529-1533. reed c. 2011. personal interview. city of huntsville water public utilities director. romero cc, dukes md. 2011. are landscapes over-irrigated in southwest florida? a spatial-temporal analysis of observed data. irrigation science. 29:391-401. runfola dm, polshy c, nicolson c, giner nm, pontius rg jr, krahe j, decatur a. 2013. a growing concern? examining the influence of lawn size on residential water use in suburban boston, ma, usa. landscape and urban planning 119:113-123. [saws] san antonio water system. 2014. watering efficiently [internet]. san antonio (texas): san antonio water system; [cited 2014 january 8]. available from: http:// www.saws.org/conservation/outdoor/watering.cfm sas institute inc. 2002. the sas system for windows. release 9.3. cary (north carolina): sas institute. [twdb] texas water development board. 2012. water for texas 2012 state water plan [internet]. austin (texas): allen rg, pereira ls, raes d, smith m. 1998. crop evapotranspiration – guidelines for computing crop water requirements [internet]. rome (italy): food and agriculture organization of the united nations; [cited 2014 january 10]. chapter 2, fao penman-monteith equation. available from: http://www.fao.org/docrep/x0490e/x0490e06.htm allen rg, pereira ls, raes d, smith m. 1998. crop evapotranspiration – guidelines for computing crop water requirements [internet]. rome (italy): food and agriculture organization of the united nations; [cited 2014 january 10]. chapter 2, fao penman-monteith equation. available from: http://www.fao.org/docrep/x0490e/x0490e06.htm http://www.austintexas.gov/department/watering-your-lawn http://www.austintexas.gov/department/watering-your-lawn http://www.itemonline.com/news/local_news/article_7d47c59e-4c8d-5e8e-a91e-4819c2fccdfe.html http://www.itemonline.com/news/local_news/article_7d47c59e-4c8d-5e8e-a91e-4819c2fccdfe.html https://journals.tdl.org/twj/index.php/twj/article/view/6992 https://journals.tdl.org/twj/index.php/twj/article/view/6992 http://help.houstonwater.org/understand-high-water-use http://help.houstonwater.org/understand-high-water-use http://www.ci.lubbock.tx.us/departmental-websites/departments/water-department/top-navigation-menu-items/conservation/tips http://www.ci.lubbock.tx.us/departmental-websites/departments/water-department/top-navigation-menu-items/conservation/tips http://www.ci.lubbock.tx.us/departmental-websites/departments/water-department/top-navigation-menu-items/conservation/tips http://savedallaswater.com/how-to-save-water/saving-water-outdoors/ http://savedallaswater.com/how-to-save-water/saving-water-outdoors/ http://savedallaswater.com/seasonal-watering/ http://savedallaswater.com/seasonal-watering/ http://www.epa.gov/watersense/outdoor/index.html http://www.epa.gov/watersense/outdoor/index.html http://greenplantsforgreenbuildings.org/wp-content/uploads/2014/01/benefitofplants.pdf http://greenplantsforgreenbuildings.org/wp-content/uploads/2014/01/benefitofplants.pdf http://www.lcra.org/water/save-water/watersmart/pages/default.aspx/ http://www.lcra.org/water/save-water/watersmart/pages/default.aspx/ http://www.saws.org/conservation/outdoor/watering.cfm http://www.saws.org/conservation/outdoor/watering.cfm texas water journal, volume 6, number 1 85residential outdoor water use texas water development board; [cited 2014 january 8]. available from: http://www.twdb.texas.gov/waterplanning/swp/2012/ [twdb] texas water development board. 2013. swift fund [internet]. austin (texas): texas water development board; [cited 2014 may 16]. available from: http://www. twdb.texas.gov/financial/programs/swift/index.asp tinker a, woods, p. 2000. development of a formula to determine outdoor residential water consumption in college station, texas. in: associated schools of construction, proceedings of the 36th annual conference. purdue university, west lafayette, indiana. windsor (colorado): the associated schools of construction. p. 147-154. [doe] u.s. department of energy. 2011. 2010 buildings energy data book [internet]. washington (district of columbia): u.s. department of energy; [cited 2015 march 16]. available from: http://buildingsdatabook.eren. doe.gov/docs/databooks/2010_bedb.pdf vickers a. 2001. handbook of water use and conservation. amherst (massachusetts): waterplow press. 464 p. white c. 2012. water scarcity pricing in urban centres. global water forum [internet]. [cited 2014 july 22]. available from: http://www.globalwaterforum.org/2012/02/06/ water-scarcity-pricing-in-urban-centres/ http://www.twdb.texas.gov/waterplanning/swp/2012/ http://www.twdb.texas.gov/waterplanning/swp/2012/ http://www.twdb.texas.gov/financial/programs/swift/index.asp http://www.twdb.texas.gov/financial/programs/swift/index.asp http://buildingsdatabook.eren.doe.gov/docs/databooks/2010_bedb.pdf http://buildingsdatabook.eren.doe.gov/docs/databooks/2010_bedb.pdf http://www.globalwaterforum.org/2012/02/06/water-scarcity-pricing-in-urban-centres/ http://www.globalwaterforum.org/2012/02/06/water-scarcity-pricing-in-urban-centres/ a new day? two interpretations of the texas supreme court's ruling in edwards aquifer authority v. day and mcdaniel texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 4, number 1 2013 texas water journal special issue: groundwater http://texaswaterjournal.org volume 4, number 1 2013 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: an artesian well, belonging to catfish farmer ronnie pucek, in the edwards aquifer in 1993. © peter essick http://texaswaterjournal.org http://texaswaterjournal.org texas water journal, volume 4, number 1 35 texas water resources institute texas water journal volume 4, number 1, 2013, pages 35–54 commentary: a new day? two interpretations of the texas supreme court’s ruling in edwards aquifer authority v. day and mcdaniel russell s. johnson1, gregory m. ellis2 editors’ note: many in texas waited patiently for the texas supreme court decision on edwards aquifer authority v. day and mcdaniel, arguably the most important decision on texas groundwater law in a generation. regardless of which way the decision went, it undoubtedly would have a big impact on the management of groundwater resources in the state. we were not disappointed. the decision is complicated and, in places, seemingly contradictory. by opening groundwater management to regulatory takings, a door to another complicated area of law has been opened. although the day case answers some questions, others remain unanswered. and there are strong opinions on what day means and doesn’t mean. while the texas supreme court considered the day case, russ johnson and greg ellis regaled audiences at multiple venues on their views on the case and what the court would or should do. johnson’s arguments leaned toward the landowner perspective while ellis’s arguments leaned toward the groundwater conservation district perspective. with the day case decided, we thought it would be informative to ask johnson and ellis what they thought day meant. given the topic and nature of the contributions, only the editorial board reviewed the papers before accepting them for publication. as expected, the papers are interesting and informative—and help set the stage for the path forward. keywords: texas water law, texas groundwater law, edwards aquifer authority, day case 1 partner, mcginnis, lochridge & kilgore, l.l.p., 600 congress avenue, suite 2100, austin, texas 78701 2 attorney at law, 2104 midway court, league city, texas 77573 citation: johsnon rs, ellis gm. 2013. a new day? two interpretations of the texas supreme court’s ruling in edwards aquifer authority v. day and mcdaniel. texas water journal. 4(1):35-54. available from: https://doi.org/10.21423/twj.v4i1.6990. © 2013 russell s. johnson, gregory m. ellis. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v4i1.6990 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 4, number 1 36 nature of the groundwater ownership right although the rule of capture has been the law in texas since 1904 and has been consistently described as a property right incident to ownership, the courts were never required to define the exact nature of the right until recently. beginning with the houston & t.c. ry. co. v. east case, the courts described the rule of capture as a real property right but never clearly defined when or if the right is vested. this is particularly important in the context of regulating the exercise of that right, as discussed later. in east, the texas supreme court, citing new york law, said: an owner of soil may divert percolating water, consume or cut it off, with impunity. it is the same as land, and cannot be distinguished in law from land. so the owner of land is the absolute owner of the soil and of percolating water, which is a part of, and not different from, the soil. houston & t.c. ry. co. v. east, 81 s.w. 279, 281 (tex. 1904) (quoting pixley v. clark, 35 n.y. 520 (1866)). similarly, in pecos county, the el paso court of appeals stated: it seems clear to us that percolating or diffused and percolating waters belong to the landowner, and may be used by him at his will...these cases seem to hold that the landowner owns the percolating water under his land and that he can make a non-wasteful use thereof, and such is based on a concept of property ownership. pecos county water control & improvement district no. 1 v. williams, 271 s.w.2d 503, 505 (tex. civ. app.—el paso 1954, writ ref ’d n.r.e.). the texas supreme court in friendswood development co. v. smith-southwest industries, inc. refused to abandon the rule of capture, noting that it had become “an established rule of property law in this state, under which many citizens own land and water rights.” 576 s.w.2d 21, 29 (tex. 1978). in spite of these statements, which imply that groundwater is owned by the landowner, the texas supreme court had not, prior to its recent decision in edwards aquifer authority v. day and mcdaniel, provided a description of the nature of the ownership right embraced by the absolute ownership rule. in sipriano v. great spring waters of america, inc., 1 s.w.3d 75 (tex. 1999), the supreme court deftly avoided a discussion of the nature of the ownership right and instead held that it was inappropriate for the court, given the legislature’s efforts to expand the powers of groundwater conservation districts, to insert itself into the regulatory mix by substituting the rule of reasonable use for the rule of capture. sipriano, 1 s.w.3d at 80. the court noted that any modification of the law would have to be guided by constitutional and statutory considerations, implying that ownership of groundwater is a property right and protected by the constitution. in the 1 case where the issue was argued to be directly relevant, barshop v. medina county underground water conservation district, the supreme court avoided making a definitive decision on the issue. 925 s.w.2d 618 (tex. 1996). in barshop, landowner plaintiffs filed suit prior to the implementation of the edwards aquifer authority act (eaaa or act), claiming that the act violated the texas constitution by taking their rights to use edwards aquifer groundwater. the plaintiffs claimed that the act deprived landowners within the jurisdiction of the edwards aquifer authority (the authority) jurisdiction of their vested property right in groundwater in violation of the constitution. plaintiffs conceded that the state has the right to regulate the use of groundwater but maintained that they had a vested property right in the water, which the act took away. the state countered that groundwater under the rule of capture, while an ownership right in real property, was not vested until the water was actually reduced to possession and therefore the act, which provided for regulation of use, could not result in a taking. id. without resolving these conflicting arguments or deciding the nature of the ownership right, the supreme court held that the act was not unconstitutional on its face, ruling that the plaintiffs had failed to establish that, under all circumstances, the act would deprive landowners of their property rights. therefore, the supreme court did not have to resolve definitively the clash between property rights in water and regulation of water— that is whether the act, as it might be applied, could result in an unconstitutional taking. while our prior decisions recognize both the property ownership rights of landowners in underground water and the need for legislative regulation of water, we have not previously considered this point at which water regulation unconstitutionally invades the property rights of landowners. the issue of when a particular regulation becomes an invasion of property rights in underground water is complex and multi-faceted. the problem is further complicated in this case because plaintiffs have brought this challenge to the act before the authority has even had an opportunity to begin regulating the [edwards] aquifer. a new day? a new day? landowner perspective by russell s. johnson texas water journal, volume 4, number 1 37 facts of the day case under the eaaa, landowners who had historically used edwards aquifer groundwater for irrigation purposes were assured by the legislation of a minimum permit amount of 2 acre-feet of production per year per acre irrigated. mr. day and mr. mcdaniel (day) jointly owned a tract of land located within the authority’s jurisdiction that had a well that flowed under artesian pressure. day’s predecessor in title irrigated a portion of the property directly from the well and a much larger portion of the property from an impoundment on a creek to which the artesian flow had been directed by a ditch constructed by the landowners. the authority granted day a permit for 14 acre-feet of groundwater based upon irrigation of land directly from the well but denied the request for a permit for land irrigated from the impoundment. the authority determined that the water pumped from the impoundment on the property was surface water and therefore owned by the state and did not constitute historical use of groundwater from the edwards aquifer. procedural history day appealed the decision to state district court, claiming error by the authority. in the alternative, they argued that the actions of the authority constituted a constitutional taking and an inverse condemnation of their groundwater rights and sought damages. the authority then sued the state in the same proceeding, alleging that the state should be liable in the event the court found there was a taking.  the trial court granted the authority’s and the state’s motions for summary judgment on the constitutional takings claims, finding that the plaintiffs had no vested right to groundwater under their property and granted a take-nothing summary judgment on all of day’s constitutional claims. the trial court disagreed with the authority’s decision to deny day a permit. the parties appealed to the fourth court of appeals. the court agreed with the authority’s conclusion that the water used from the lake was state water and not groundwater and reversed the trial court’s judgment granting a permit for acres irrigated with water from the impoundment. the court reversed the take-nothing judgment granted on summary pleadings on the takings claim and remanded to the trial court for further proceedings on the constitutional claims. the court of appeals concluded that landowners have ownership rights in groundwater, that those rights are vested and are therefore constitutionally protected, and reversed the trial court’s grant of summary judgment on these issues. the court held that the landowners’ “vested right in the groundwater beneath their property is entitled to constitutional protection.” id. at 756. a new day? despite these problems and competing interests, this case involves only a facial challenge to the act. because plaintiffs have not established that the act is unconstitutional on its face, it is not necessary to the disposition of this case to definitively resolve the clash between property rights in water and regulation of water. id. at 626. recently, the issue of the nature of the groundwater right was squarely before the fourth court of appeals of texas in 2 cases. in both cases, the court was confronted with questions of law requiring analysis of the ownership interest in groundwater. in both decisions, the court concluded that groundwater was owned as real property. in city of del rio v. clayton sam colt hamilton trust, the issue was whether a seller’s reservation in the conveyance of “all water rights associated with said tract” prevented the buyer from drilling a well and producing groundwater on the tract conveyed. 269 s.w.3d 613, 614 (tex. app.—san antonio 2008, pet. denied). litigation was initiated after the buyer, the city of del rio, drilled a water well on the purchased tract. the city argued that the trust’s reservation of water rights could not be effective and that under the rule of capture, the corpus of groundwater cannot be owned until it is reduced to possession. id. at 616. the court reviewed the supreme court’s authority holding that percolating water is part of and not different from the soil, that the landowner is the absolute owner of it, and that it is subject to barter and sale like any other species of property. id. at 617 (et. al). the court distinguished the absolute ownership rule from the rule of capture, holding that the rule of capture is a tort rule denying a landowner any judicial remedy and was developed as a doctrine of nonliability for damage, not a rule of property. id. at 61718. the court concluded that “under the absolute ownership theory, the trust was entitled to sever the groundwater from the surface estate by reservation when it conveyed the surface estate to the city of del rio.” id. at 617. the city’s petition to the texas supreme court was denied. shortly thereafter, in edwards aquifer authority v. day, 274 s.w.3d 742 (tex.  app.—san antonio 2008), the fourth court of appeals reviewed a summary judgment in favor of the authority on day’s and mcdaniel’s claim that the operation of the eaaa and the authority’s decision to deny day and mcdaniel a permit to produce groundwater constituted a taking under the texas constitution. the authority petitioned the texas supreme court to review this decision, and day and mcdaniel sought review of the decision denying them a permit. the supreme court granted the petitions for review. texas water journal, volume 4, number 1 38 both the state and the authority filed petitions for review of the court of appeal’s decision that plaintiffs have a vested and constitutionally protected interest in groundwater beneath their property. day filed a petition for review, claiming error by the court of appeals in denying a permit for acres irrigated with water from the impoundment. the texas supreme court granted all petitions for review. while the case was still awaiting a decision, the 82nd texas legislature passed legislation addressing the ownership issue. senate bill 332 amended section 36.002 of the texas water code to clarify the legislature’s view of the nature of the ownership interest and rights of landowners while recognizing that regulation and management of groundwater resources under the conservation amendment is a matter of public interest. section 36.002 now provides that landowners own the groundwater below the surface as real property, which entitles the landowner to drill for and produce the groundwater below the surface, subject to the common law limitations against waste, malice, or negligent subsidence and the regulatory authority outlined by the legislature in chapter 36. specifically, within amended section 36.002, subsection (c) provides that nothing in chapter 36 should be construed as granting authority to deprive or divest a landowner of the ownership and rights described by section 36.002. subsection (d) states that the section does not prohibit a district from limiting or prohibiting the drilling of a well not in compliance with district rules for spacing or tract size or affect the ability of a district to regulate groundwater production authorized by chapter 36. subsection (d)(3) clarifies that districts are not required to allocate to a landowner a proportionate share of available groundwater based on acreage owned, in effect stating that the ownership right does not require the application of a correlative rights rule to groundwater. subsection (e) exempts certain water management entities from the section. specifically, it provides that the section does not affect the ability to regulate groundwater as authorized by the laws creating and governing the edwards aquifer authority, the harris-galveston subsidence district, or the fort bend subsidence district. the argument at the supreme court at the supreme court, day and numerous amici argued that the ownership right of landowners in groundwater beneath their land is a vested real property right protected by the u.s. and texas constitutions from taking without compensation. several amici argued that the absolute ownership rule as applied to minerals had created a vested property right protected from uncompensated taking, finding that the minerals were owned in place. a new day? the authority argued that the rule lacked attributes essential to the ownership of property: the right to exclude others and enforce those rights. the authority also argued that groundwater should be treated differently because the law recognizes correlative rights in oil and gas but not in groundwater. finally, it argued that groundwater is so fundamentally different from oil and gas that ownership rights in oil and gas should not bind the court to apply those rights to groundwater. the state argued that while landowners do have some ownership rights in groundwater, they were not, in this case, sufficient to support a takings claim. the supreme court answers the question of the nature of landowner groundwater rights on february 24, 2012, the texas supreme court issued a 50-page, unanimous opinion in edwards aquifer authority v. day affirming the fourth court of appeals and confronting and answering for the first time the question of whether a landowner’s groundwater rights are a vested real property right protected by the texas and u.s. constitutions’ prohibitions against uncompensated taking. 369 s.w.3d 814 (tex. 2012). the opinion, written by justice hecht, begins with a succinct summary of the issue presented in the decision: we decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article 1, § 17(a) of the texas constitution. we hold that it does. id. at 817. the opinion reviews the history of the eaaa and its key provisions and summarizes the facts leading up to the authority’s decision to deny day a permit for groundwater use from an impoundment on a water course. the authority found that the water used from the impoundment had become surface waters of the state and that day were therefore not entitled to a groundwater production permit for water withdrawn from the impoundment and used for irrigation. the supreme court affirmed the authority’s decision, finding that day had failed to prove that their use of water was groundwater and not state water. this statement of the law has profound implications for any landowner using groundwater to supplement water in an impoundment on a water course. as stated by the court: we do not suggest that a lake can never be used to store or transport groundwater for use by its owner. we conclude only that the authority could find from the evidence before it that that was not what had occurred on day’s property. id. at 823. the supreme court then provided a detailed summary of the history of the rule of capture from its adoption in texas water journal, volume 4, number 1 39 character of the governmental action—in essence an analysis of the reasonableness of the regulation in light of the goals to be achieved and the impacts reasonably expected—must be considered. because this factual inquiry was not developed in the summary judgment proceeding, the texas supreme court agreed with the fourth court of appeals of texas that summary judgment against day’s taking claim should be reversed and the issue remanded to the trial court. as a side note, the supreme court rejected day’s complaint that section 36.066(g) of the texas water code, which authorizes an award of attorneys’ fees and expenses to a groundwater conservation district that prevails in a suit like the underlying action, violated equal protection. the court found the state has a legitimate interest in discouraging suits against groundwater districts to protect them from costs and burdens associated with such suits and that a cost-shifting statute is rationally related to advancing that interest. landowners who file takings claims should be aware of this provision. impacts on surface and groundwater management and regulation the opinion in edwards aquifer authority vs. day resolved decades of conflict concerning the nature of the ownership right held by landowners in groundwater in texas. by applying the case law applicable to oil and gas, the texas supreme court has determined that groundwater is “owned in place” by the landowner and that this ownership right can support a claim for uncompensated taking under the state and federal constitutions. the court’s decision profoundly affects the interface between groundwater and surface water law on the landowner’s property and outlines the current court’s view on the law that should be applied when a takings claim is brought by a landowner against a groundwater conservation district. first, the supreme court concluded that the groundwater produced by day from the well lost its character as groundwater and became surface water of the state of texas when the water from the well reached and entered the intermittent creek on the day and mcdaniel property. day had constructed a conveyance mechanism to move the groundwater from the well to the creek and assumed that they could withdraw their “groundwater” from an impoundment on their property without obtaining a permit from the state. the supreme court found that the authority correctly determined that the groundwater became surface water when it entered the creek, therefore losing its character as groundwater and extinguishing the ownership interest of day in the groundwater. by so finding, the supreme court has likely inadvertently converted what many landowners assumed was their lawful a new day? east to the decision in sipriano, finally concluding that ownership of groundwater in place had never been decided by the court. the court noted that while it had never addressed the issue with regard to groundwater, it had done so long ago with respect to oil and gas, to which the rule of capture also applies. the court noted that while ownership of gas in place did not entitle the owner to specific molecules of gas, which could be diminished through drainage, with proper diligence they could be replenished or obtained. the court stated that while the molecules are in the ground, they constitute a property interest. the court, quoting its previous decisions, noted that the right to the oil and gas beneath a landowner’s property is an exclusive and private property right inherent in land ownership, which may not be deprived without a taking of private property. the supreme court found that there was no basis in the differences cited between groundwater and oil and gas to conclude that the common law allows ownership of oil and gas in place but not groundwater. specifically, the court quoted itself regarding the ownership of oil and gas in place, before affirming this was its holding: in our state the landowner is regarded as having absolute title and severalty to the oil and gas in place beneath his land. the only qualification of that rule of ownership is that it must be considered in connection with the law of capture and is subject to police regulations. the oil and gas beneath the soil are considered a part of the realty. each owner of land owns separately, distinctly and exclusively all the oil and gas under his land and is accorded the usual remedies against trespassers who appropriate the minerals or destroy their market value. we now hold that this correctly states the common law regarding the ownership of groundwater in place. id. at 831-32. the court cited the legislative revisions to section 36.002 described above as demonstrating the legislature’s understanding of the interplay between groundwater ownership and groundwater regulation. the supreme court then analyzed whether day had stated a viable takings claim. in so doing, the court rejected the argument that the authority’s regulatory action could be considered a per se taking for fifth amendment purposes and instead applied the regulatory takings analysis originally adopted by the u.s. supreme court in penn central transportation co. v. new york city, 438 u.s. 104 (1978). in penn central, the court identified several factors that have particular significance in determining whether the regulation rises to the level of a taking under the constitution. primary among those factors are the economic impact of the regulation on the claimant and the extent to which the regulation has interfered with distinct investment-backed expectations. in addition, the texas water journal, volume 4, number 1 40 use of groundwater into unlawful diversions of state water without a permit. many rural properties have groundwater wells and facilities constructed so that the groundwater can be used from an impoundment on the landowners’ property. if the impoundment is on a watercourse, or the groundwater is withdrawn and used by the landowner after entering a watercourse, the supreme court’s opinion implies that this will be viewed as an unlawful diversion of state water, even though the water diverted would not have been there but for the actions of the landowner. the court made mention of the fact that day had not measured the amount of water flowing from the well to the lake or the amount pumped from the lake into the irrigation system, that there was no direct transportation from source to use, and that the withdrawal was only periodic, as needed, to irrigate the adjacent acreage. the court made much of the fact that the lake was apparently not used to store water for irrigation but was primarily used for recreation. however, landowners should be aware of this decision and the potential impact it may have on their ongoing water use on their property. the takings analysis after determining that landowners do have a constitutionally compensable interest in groundwater, the texas supreme court could, and probably should, have simply reversed and remanded to the trial court for consideration of day’s taking claim. instead, the court wrote on whether the authority’s regulatory scheme had resulted in a taking of that ownership interest. given the procedural history of the case (a takings claims denied on motion for summary judgment by the authority), the court was not obligated to address this issue; the issue was not directly before it. despite this, the court engaged in an extensive analysis of regulatory takings claims. as described by the court, 3 analytical categories of takings have been developed under texas and federal law. two categories of regulatory action generally deemed to be per se takings are (1) situations where the government requires owners to suffer a permanent physical invasion of their property and (2) regulations that completely deprive owners of all economically beneficial use of their property. the court noted that outside of these 2 relatively narrow categories, regulatory takings challenges are governed by the standards set forth by the u.s. supreme court in penn central. penn central holds that there is not a set formula for evaluating regulatory takings claims but identified several factors that had particular significance. primary among those factors are the economic impact of the regulation on the claimant and the extent to which the regulation interferes with distinct investment-backed expectations. in addition, the supreme court indicated that the character of the government action may be relevant in discerning whether a taking has occurred. quoting its own decision in sheffield development co. vs. city of glenn heights, the court noted that all the surrounding circumstances must be considered in applying a reasonableness test so that, in the end, whether the facts are sufficient to constitute a taking is a question of law. day at 839 (quoting sheffield dev. co. v. city of glenn heights, 140 s.w.3d 600 (tex. 2004)). noting that the case was before it on summary judgment, the supreme court examined the evidence and concluded that the 3 penn central factors did not support summary judgment for the authority and the state and that a full development of the record may demonstrate that the authority’s actions were too restrictive of day’s groundwater rights and without justification in the overall regulatory scheme. id. at 838-43. the court rejected the authority’s argument that if groundwater regulation can result in compensable takings, the consequences will be disastrous. id. at 843-44. what constitutes a taking? the day court did not answer the question of what actions will or will not be considered a taking under the penn central analysis. in fact, the court could hardly pronounce such an absolute rule given that all takings analyses are fact dependent. so, what is a groundwater conservation district to do? the short answer is that groundwater conservation districts must consider the goals they seek to accomplish by regulation in comparison to the economic impact on landowners within their jurisdiction. specifically, groundwater districts should consider the impact on investment-backed expectations of subsequent regulation and the economic impact to landowners of the application of these regulations. this analysis has particular application to groundwater users who have made investments based upon their ability to produce groundwater, which are interfered with by the regulations. interference alone, or negative economic consequences alone, are not sufficient, by themselves, to support a takings claim. a deciding court must measure the regulatory goals against the economic impacts. despite claims to the contrary, the day decision does not mandate a correlative rights approach to be used by groundwater conservation districts to avoid takings claims. a strict correlative rights system would inevitably have negative economic consequences for those already using groundwater inconsistent with whatever correlative rules are developed by the district. this is particularly true if the district assumes that all correlative rights will be exercised since these situations do not and have not occurred historically. groundwater conservation districts should be particularly concerned about the basis for their decision establisha new day? texas water journal, volume 4, number 1 41a new day? ing a desired future condition. specifically, absent findings of adverse consequences associated with less restrictive desired conditions, districts will be challenged if the restrictions levied cause severe economic dislocation and are designed to meet a laudable goal—one that, if not met, would not result in catastrophic consequences. conclusion prior to the decision in edwards aquifer authority v. day and mcdaniel, many groundwater conservation districts in texas were advised that regulations restricting access to groundwater could not support a takings claim. after the decision, these groundwater districts will need to reconsider their approach to establishing limits and, in particular, examine and justify the reasons for those limits. absent such justification, proof of economic dislocation or loss of investment-backed expectations will undoubtedly result in takings claims that could be successfully pursued. texas water journal, volume 4, number 1 42 a new day? a new day? district perspective by gregory m. ellis the day case the texas supreme court issued its opinion in edwards aquifer authority v. day and mcdaniel, 55 tex. sup. ct. j. 343, 369 s.w.3d 814 (tex. 2012) holding that there is a vested property right in groundwater prior to capture, and the courts must now consider whether a particular government action rises to the level of a regulatory taking. this paper discusses the background of the day case, the court’s opinion, and the impact the opinion will have on future litigation and groundwater regulation generally. synopsis1 farmers day and mcdaniel applied for an initial regular permit (irp) from the edwards aquifer authority (the authority) claiming 700 acre-feet of water rights. they presented evidence of having an edwards aquifer well and that they irrigated 150 acres of pasture from a lake on the property and an additional 7 acres directly from the well. the lake was filled by artesian flow from the well that discharged to a ditch and included intermittent surface water flows. the authority issued a permit for 14 acre-feet based on the 7 acres irrigated directly from the well; day and mcdaniel appealed the permit decision and filed multiple constitutional claims, including a takings claim for the groundwater lost. the texas supreme court upheld all the permitting decisions made by the authority, including limiting the permit to 14 acre-feet for the land irrigated directly from the well, but also held that landowners have a vested property right in groundwater prior to capture and day and mcdaniel were therefore entitled to have the court consider whether any of their property was taken through this permitting action. facts the authority conducted a contested case hearing on the application by day and mcdaniel. during the contested case hearing, the evidence concerning when and how many acres were irrigated was disputed. testimony ranged from a low of 150 acres to a high of 300 acres irrigated plus recreational use of 50 acre-feet in a lake on the property that was an impound1 parts of this paper were taken from a december 2010 paper co-authored by gregory m. ellis and russell s. johnson presented at the university of texas school of law 2010 texas water law institute (december 2–3, 2010, austin, texas). ment on the creek. in addition, the evidence demonstrated that day and mcdaniel had diverted water directly from the well to irrigate 7 acres of property adjacent to the well site. the authority does not regulate any formation other than the edwards aquifer, and the record does not indicate if day and mcdaniel attempted to access any formations other than the edwards aquifer. day and mcdaniel have not applied for a term permit as provided by section 1.19 of the authority’s enabling act2. procedural history and claims at the conclusion of the contested case hearing, the authority determined that the water pumped from the impoundment on the property was surface water and therefore owned by the state and did not constitute historical use of groundwater from the edwards aquifer. thus, the authority denied the permit application for the acres of property irrigated from the impoundment of the property. the authority found that day and mcdaniel had shown historical use of groundwater on the 7 acres adjacent to the well and issued a permit to withdraw 14 acre-feet of water per year from the aquifer. day and mcdaniel appealed to state district court claiming error by the authority. in addition and in the alternative, they argued that the actions of the authority constituted a constitutional taking and an inverse condemnation of their groundwater rights and sought damages. the authority interplead the state as a third-party defendant seeking contribution and indemnity from the state on the takings claims made by day and mcdaniel. 2 act of may 30, 1993, 73d leg., r.s., ch. 626, 1993 tex. gen. laws 2350, amended by act of may 16, 1995, 74th leg., r.s., ch. 524, 1995 tex. gen. laws 3280; act of may 29, 1995, 74th leg., r.s., ch. 261, 1995 tex. gen. laws 2505; act of may 6, 1999, 76th leg., r.s., ch. 163, 1999 tex. gen. laws 634; act of may 25, 2001, 77th leg., r.s., ch. 1192, 2001 tex. gen. laws 2696; act of may 28, 2001, 77th leg., r.s., ch. 966, §§ 2.60.62 and 6.01-.05, 2001 tex. gen. laws 1991, 2021-2022, 2075-2076; act of may 25, 2001, 77th leg., r.s., ch. 1192, 2001 tex. gen. laws 2696; act of june 1, 2003, 78th leg., r.s., ch. 1112, § 6.01(4), 2003 tex. gen. laws 3188, 3193; act of may 23, 2007, 80th leg., r.s., ch. 510, 2007 tex. gen. laws 900; act of may 28, 2007, 80th leg., r.s., ch. 1351, §§ 2.01-2.12, 2007 tex. gen laws 4612, 4627-4634; act of may 28, 2007, 80th leg. r.s., ch. 1430, §§ 12.01-12.12, 2007 tex. gen. laws 5848, 5901-5909; act of may 21, 2009, 81st leg., r.s., ch. 1080, 2009 tex. gen. laws 2818 [hereinafter “eaa act”]. citations are to the eaa act’s current sections, without separate references to amending enactments. a compilation of the eaa act including all amendments can be found on the authority’s website, at http://www.edwardsaquifer.org/files/eaaact.pdf. http://www.edwardsaquifer.org/files/eaaact.pdf texas water journal, volume 4, number 1 43a new day? the district court held that the water pumped from the impoundment on the day and mcdaniel property was not state surface water. the court found that the water used was groundwater from the aquifer and found, based on the record, that this water had been used to irrigate a 150 acres of the day and mcdaniel property, and that day and mcdaniel were entitled to a permit to withdraw 300 acre-feet of aquifer groundwater per year in addition to the 14 acre-feet authorized by the authority. the court granted the authority’s and state’s motions for summary judgment on the constitutional takings claims finding that the plaintiffs had no vested right to groundwater under their property, and granted a take nothing summary judgment on all of day’s and mcdaniel’s constitutional claims. both parties appealed to the fourth court of appeals in san antonio. the court of appeals agreed with the authority’s conclusion that the water used from lake was state water and not groundwater and reversed the district court’s judgment granting a permit for acres irrigated with water from the impoundment. the court of appeals affirmed the authority’s decision granting plaintiffs’ permit only for the 7-acre tract that was irrigated with groundwater directly from the well. the court of appeals reversed the take nothing judgment granted on summary pleadings on the takings claim and remanded to the district court for further proceedings on the constitutional claims. the court of appeals concluded that landowners have some ownership rights in groundwater, that those rights are vested and are therefore constitutionally protected, and reversed the district court’s grant of summary judgment on these issues. both the state and the authority filed petitions for review of the court of appeal’s finding that plaintiffs have a vested and constitutionally protected interest in groundwater beneath their property. day and mcdaniel filed a petition for review claiming error by the court of appeals to deny a permit for acres irrigated with water from the impoundment and making several constitutional claims. eventually all 3 petitions were granted and answered by the texas supreme court. the texas supreme court’s opinion, issued february 24, 2012, affirmed the opinion of the fourth court of appeals on the primary issues and remanded the case back to the district court for a full hearing on the takings issues raised by the plaintiffs. the opinion covers a number of issues and includes a comprehensive discussion of texas groundwater and property law. both sides filed motions for rehearing that were denied on june 8, 2012. the first 8 pages of the opinion provide a recitation of the facts and procedural history of the case, including the findings of the administrative law judge during the original permit hearings, the decision of the authority’s board of directors, the holdings of the district court judge on appeal from the board decision, and finally the opinion of the court of appeals. of course, the biggest question was the nature of the property right in groundwater prior to capture, to which the supreme court devotes most of its discussion. before reaching the discussion of the property right, however, the supreme court reviewed the authority’s permit decision. because the authority held that the water allowed to flow into the creek bed became state water, the board denied that portion of the application based on acres irrigated out of the creek-fed lake. first the supreme court determined that groundwater flowing into a surface-water course loses its nature as groundwater and becomes surface water owned by the state, citing the definition of state water as any “water of ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the gulf of mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state” (citing § 11.021(a), water code). the supreme court also noted that the legislature specifically declared surface water “when put or allowed to sink into the ground, . . . loses its character and classification . . . and is considered percolating groundwater.’” (citing § 35.002(5), water code). the lone exception it cited is a situation where the owner of the groundwater obtains a “bed and banks” permit to use the water course as a conduit for privately owned water (citing § 11.042(b), water code). however, there is no mention of the chapter 36 definition of “waste,” which includes “willfully or negligently causing, suffering, or allowing groundwater to escape into any river, creek, natural watercourse, depression, lake, reservoir, drain, sewer, street, highway, road, or road ditch, or onto any land other than that of the owner of the well unless such discharge is authorized by [a wastewater discharge] permit . . .”. § 36.001(8)(e), water code. that definition should require the supreme court to find that the groundwater discharge to the creek was wasteful, and therefore could not form the basis of a permit.3 either way, the supreme court held the board reached the correct decision on the permit. having determined the permit decision was correct, the supreme court turned its attention to the takings issue. the district court decided that day and mcdaniel failed to meet the threshold issue of having a vested property right that could be taken. the supreme court held that groundwater should be “owned in place” the same as oil and gas property. the supreme court then inexplicably spends 10 pages of the opinion discussing prior groundwater cases and how the supreme court 3 “to the extent water is available for permitting, the board shall issue the existing user a permit for withdrawal of an amount of water equal to the user’s maximum beneficial use of water without waste during any 1 calendar year of the historical period.” § 1.16(e), edwards aquifer authority act (emphasis added). texas water journal, volume 4, number 1 44 a new day? had never before held that groundwater was owned in place. it cited the original groundwater case, houston & t.c. railway v. east, saying, “no issue of ownership of groundwater in place was presented in east, and our decision implies no view of that issue.” (emphasis in original). the opinion then discusses 4 cases decided since east (city of corpus christi v. city of pleasanton, friendswood development co. v. smith-southwest industries, inc., city of sherman v. public utility commission, and sipriano v. great spring waters of america, inc.), finding that “[i]n none of them did we determine whether the water was owned in place.” the discussion on ownership ends with comparisons to oil and gas cases and early holdings that oil and gas is owned in place. an important statement that appears to be dicta is that the ownership interest is based on “volumes that, while they could be diminished through drainage, with ‘proper diligence’, could also be replenished through drainage.” this statement ignores one of the major differences between oil and gas formations and aquifers; almost all the aquifers in the state are replenished through recharge from the surface. any drainage that occurs may be fully replaced during the next rain event (especially true for the edwards aquifer, which measures well levels on a daily basis4). the “volumes” of oil and gas formations may be determined by measuring the formation; the same cannot be said for rechargeable groundwater formations. (see discussion of these differences on page 24 of the day opinion.) the opinion also addresses a recent supreme court decision in coastal oil & gas corp. v. garza energy trust, where the court denied an action for trespass liability based on “fracing” operations that may have extended onto the plaintiff’s land. the majority opinion in that case was that the plaintiff failed to state a claim for damages: in this case, actionable trespass requires injury, and salinas’s only claim of injury—that coastal’s fracing operation made it possible for gas to flow from beneath share 13 to the share 12 wells—is precluded by the rule of capture. that rule gives a mineral rights owner title to the oil and gas produced from a lawful well bottomed on the property, even if the oil and gas flowed to the well from beneath another owner’s tract. the rule of capture is a cornerstone of the oil and gas industry and is fundamental both to property rights and to state regulation. salinas does not claim that the coastal fee no. 1 violates any statute or regulation. thus, the gas he claims to have lost simply does not belong to him. coastal oil 268 s.w.3d 1, 9 (tex. 2008) (citations omitted; emphasis added). 4 see http://data.edwardsaquifer.org/display_technical_m.php?pg=j17_ live the majority re-iterates this reasoning a few pages later in the same opinion: [a]llowing recovery for the value of gas drained by hydraulic fracturing usurps to courts and juries the lawful and preferable authority of the railroad commission to regulate oil and gas production. such recovery assumes that the gas belongs to the owner of the minerals in the drained property, contrary to the rule of capture. while a mineral rights owner has a real interest in oil and gas in place, “this right does not extend to specific oil and gas beneath the property”; ownership must be “considered in connection with the law of capture, which is recognized as a property right” as well. the minerals owner is entitled, not to the molecules actually residing below the surface, but to “a fair chance to recover the oil and gas in or under his land, or their equivalents in kind.” coastal oil 268 s.w.3d 1, 9 (tex. 2008) (citations omitted; emphasis in original). the day opinion makes all of this applicable to groundwater. finally, the comparison to oil and gas is concluded with a reference to elliff v. texon drilling co. and the following quote, in which the phrase “oil and gas” has been replaced with “groundwater”: in our state the landowner is regarded as having absolute title in severalty to the [groundwater] in place beneath his land. the only qualification of that rule of ownership is that it must be considered in connection with the law of capture and is subject to police regulations. the [groundwater] beneath the soil [is] considered a part of the realty. each owner of land owns separately, distinctly and exclusively all the [groundwater] under his land and is accorded the usual remedies against trespassers who appropriate the [groundwater] or destroy [its] market value. 210 s.w.2d 558, 561 (internal citations omitted in original). section iv of justice hecht’s opinion discusses whether day and mcdaniel had properly stated a takings claim, in light of the court’s decision that groundwater represents a constitutionally protected, vested property right. that discussion begins with a lengthy recitation of the history of groundwater regulation and the powers and duties of groundwater conservation districts. then the supreme court held that facts in the record could not support a “physical invasion” taking; specifically, having been granted a permit for 14 acre-feet and could potentially drill a well for exempt uses up to 25,000 gallons per day5, day and mcdaniel could not claim a permanent physical invasion of their property. justice hecht added some interesting dicta by stating, “it is an interesting question, and one we need not decide here, whether regulations depriving 5 the opinion assumes each landowner may only drill 1 well for exempt uses, but there is no such limitation in either the edwards aquifer authority act, the authority’s rules, or chapter 36 of the water code. texas water journal, volume 4, number 1 45a new day? a new day? a landowner of all access to groundwater—confiscating it, in effect—would fall into the category.” presumably that would require district rules (or perhaps permit decisions) deny any possible permit for any amount of groundwater, along with a prohibition on wells even for exempt use. until an actual case arises, however, this issue remains just “an interesting question.” the supreme court then held that the “summary judgment record” was inconclusive on the issue of whether the permit decision denied day and mcdaniel “of all economically beneficial use” of their property. in reviewing the 3 penn central factors (see discussion infra), the supreme court held the record was incomplete on the first factor (the regulation’s economic impact on the property) and the second factor (the owner’s investment-backed expectations) but concentrated most of its effort on the third factor: the character of the governmental action. the discussion of groundwater regulation in terms of takings analysis began with a strong endorsement of the need for regulation. citing both east and the “conservation amendment6” the court said, “groundwater provides 60% of the 16.1 million acre-feet of water used in texas each year. in many areas of the state, and certainly in the edwards aquifer, demand exceeds supply. regulation is essential to its conservation and use” (emphasis added). the opinion then differentiates between the goals and methods of regulating groundwater and regulating oil and gas, concluding that while oil and gas regulation may generally be based on surface acreage, groundwater regulation “that affords an owner a fair share of subsurface water must take into account factors other than surface area.” reviewing the authority’s statutory regulatory scheme and its emphasis on historic use, justice hecht made a comparison to surface-water statutes that also awarded permits based on historical use and found that there are fundamental differences. specifically he said that riparian surface water rights are usufructuary and did not represent an ownership interest. “furthermore, non-use of groundwater conserves the resource, ‘whereas[] the nonuse of appropriated waters is equivalent to waste.’ to forfeit a landowner’s right to groundwater for non-use would encourage waste.” (citing in re adjudication of the water rights of the upper guadalupe segment of the guadalupe river basin). this argument ignores the fact that groundwater in the edwards aquifer flows from property to property and eventually out 1 of many springs7. just as water flowing down a river is lost either to the next landowner or to the sea, groundwater in the edwards aquifer cannot be “conserved” through non-use. if 6 art. xvi, section 59, texas constitution. 7 the opinion cites the amicus brief filed by the canadian river municipal water authority, which is located in the texas panhandle over the ogallala aquifer, a very different aquifer. landowners could conserve all their groundwater by not producing it, no regulation would be necessary. the justice also argues that historical use regulations “would have been perversely incentivized to pump as much water as possible” had they known the historic use regulations were imminent. of course that is exactly why the legislature set the historic period from june 1, 1972, to may 31, 1993—to prevent people from “gaming the system” by pumping groundwater to inflate their historical claims. sec. 1.16(a), eaa act. it is also why the legislature required the permits be based on “user’s maximum beneficial use of water without waste.” sec. 1.16(e), eaa act, emphasis added. pumping groundwater without putting it to a beneficial use would accomplish nothing. although there may be incentives to overproduce, there are adequate safeguards to prevent it. it is at this point in the opinion the supreme court attempts to interpret the meaning and intent of the recent amendments to section 36.002 (s.b. no. 332 from the 82nd legislature), a task made difficult by the compromises afforded to pass the legislation. the supreme court concluded that “deprive” and “divest” as used in subsection (c) of section 36.002 “does not include a taking of property rights for which adequate compensation is constitutionally guaranteed.” the constitutional protection for taking private property is adequate compensation; there is no prohibition against the government taking property for public uses. therefore, the prohibition in sec. 36.002 (c) against depriving or divesting someone of their property goes beyond the constitutional protection. one could easily argue that a groundwater conservation district (other than the authority, the harris-galveston subsidence district, or the fort bend subsidence district) is prohibited from denying a landowner permission to drill at least 1 well for some beneficial purpose. the supreme court’s interpretation seems to be that even if that 1 well is allowed, there must still be a complete takings analysis to see if that regulation goes too far. indeed the court goes on to say, “a landowner cannot be deprived of all beneficial use of the groundwater below his property merely because he did not use it during an historical period and supply is limited.”8 the supreme court affirmed the opinion of the fourth court of appeals that the case must be remanded to fully explore the takings claims. the supreme court then addressed various other constitutional issues raised by the plaintiffs. first, an administrative body has no authority to decide constitutional issues, so it is improper to raise them as part of an administrative hearing process. second, there is no constitutional requirement that the board of directors personally conduct hearings as opposed to referring them to a hearings examiner. third, the court 8 it is interesting to note that the court did not address term permits as authorized by sec.1.19, eaa act, as a means of allowing some beneficial use of the groundwater. texas water journal, volume 4, number 1 46 a new day? did not need to address the “open courts” and “due process” arguments against the provision in the administrative procedures act that allows ex parte communications between the administrative law judge and agency staff not involved in the contested case because day and mcdaniel did not claim any such contact occurred. fourth, the plaintiffs’ other due process claim against the substantial evidence rule is dismissed because they did not present any evidence that they were prevented from presenting at the hearing. the court also pointed out that the substantial evidence rule does not “operate to restrict day’s evidence on his takings claim.” the only interpretation of that statement must be that a party to an appeal of an administrative decision is allowed to present new evidence regarding constitutional takings claims without being bound by the substantial evidence rule. finally, the supreme court dismissed the plaintiffs’ equal protection argument against application of sec. 36.066(g), water code, which requires payment to a groundwater conservation district all attorneys’ fees and court cost in a suit in which that district substantially prevails without affording the same consideration to any other party to that suit. the court upheld the fourth court of appeals decision on that issue because the state’s interest in discouraging lawsuits against groundwater conservation districts is rationally related to the cost-shifting provision in the statute. this unanimous decision by the supreme court may open the door to any number of suits against any number of groundwater conservation districts. the immediate impact may be that districts shy away from protection for historical uses and more toward either a correlative rights or reasonableuse regulatory plan, both of which will likely prove to be very expensive for cities and others with high demand. the most interesting aspect of the decision is its derision for protecting historical uses. because takings litigation is generally centered around investment-backed expectations, one would think historical users would deserve the most protection, and any regulation that is aimed at protecting those investments would be the most likely to pass constitutional muster. instead, the court turned that analysis on its ear by deriding protection of historical uses to the potential detriment of landowners who have yet to invest a dime (beyond the purchase price of their property). mr. a. dan tarlock, in his well-known reference “law of water rights and resources, 2012 ed.,” discussed the day and mcdaniel decision in §4:29 as follows: [t]he texas supreme court . . . adopted the oil and gas rule of ownership in place for groundwater which inverts the usual objective of takings law— the protection of investment backed expectations— because the regulation of future uses may be more likely to be a taking compared to the restriction of existing uses! tarlock provides further analysis of the decision in §4:36: lower texas appellate courts rendered a series of decisions suggesting that the [eaa] act was not a taking. however, the texas supreme court opened the door to taking claims by unnecessarily hardening the state’s doctrine of capture by adopting the oil and gas rule of ownership in place for groundwater and thus inverting the usual objective of takings law—the protection of investment backed expectations. the oil and gas rule is a fiction to allow landowners to lease the right to extract oil and gas, and no other state has applied it to groundwater. a. dan tarlock, law of water rights and resources §§4.29, 4.36 (2012 ed.). the supreme court’s decision would allow several parties to raise takings claims in future permitting decisions: the applicant, an existing well owner, and a landowner with a desire to “conserve” his groundwater through non-use. once an aquifer has reached its limit (meaning the aggregate of all withdrawals meets or exceeds the amount the aquifer can sustain or the amount that will achieve the chosen desired future condition for that aquifer), what decision should a groundwater conservation district make? if the district denies an application because all available groundwater supply has already been permitted and is being produced by others, the applicant will surely sue. if the district grants the application but then reduces the permits for all other existing users, the existing users will certainly sue. if the district grants the application and does not reduce any other permitted uses thereby allowing aquifer levels to decline, surely the landowner, in attempting to “conserve” his water, will sue because the district’s actions are allowing his vested property rights to be confiscated by others. it may well turn out that after all the litigation is said and done very few plaintiffs will have prevailed. an “inverse condemnation” or “regulatory taking” is difficult to prove, and even if the plaintiff prevails he must pass the additional hurdle of proving up damages. until these issues are settled through multiple lawsuits over multiple aquifers testing multiple regulatory methodologies, groundwater conservation districts will be diverting resources towards litigation defense and away from where they are most sorely needed: data collection and aquifer modeling. although sec. 36.066(g), water code allows districts to recoup their costs in suits where they prevail, that does not mean they will actually recover any funds. when these suits are filed, how they will be prosecuted and what arguments may be raised are complicated issues. regulatory takings are fact-dependent and addressed on an ad hoc basis, even though they are ultimately considered as legal matters to be decided by a court. each new suit will require a complete analysis. the next section of this paper reviews the current state of regulatory takings law in texas. texas water journal, volume 4, number 1 47a new day? regulatory takings regulatory takings from pennsylvania coal to lucas and dolan both the united states and texas constitutions provide protection against the state taking private property without compensation. see tex. const. art. i, § 17 (“no person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the state, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the legislature, or created under its authority shall be subject to the control thereof.”) and u.s. const. amend. v. “. . . nor shall private property be taken for public use without just compensation.” although the provisions are a little different, texas courts have always applied the federal analysis to cases brought under the texas constitution. sheffield development co., inc. v. city of glenn heights, 140 s.w.3d 660 (tex. 2004). historical takings analysis the courts rejected the idea of regulatory takings until 1922 when the u.s. supreme court decided pennsylvania coal co. v. mahan, 260 u.s. 393 (1922). as a means to control surface subsidence, the state required coal companies to leave subsurface columns of coal in place. up to 98% of the coal could be removed, but the coal companies claimed the state had taken the remaining 2%. the state argued the regulation was a legitimate use of the state’s police powers. the u.s. supreme court held that regulations can reach the level of a takings if they go “too far” and interfere with the rights of property owners. over the next 50 years, the concept moved very little. in the 1960s, the u.s. supreme court began to address the question of where to draw the line, or “how far is too far.” because no bright line presented itself, the court turned to equity and fairness. the court ruled that the police powers could affect a taking both if it caused a physical occupation of property and if it burdened a few individuals with costs that should be shared by the whole. the takings clause is there to “bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” armstrong v. united states, 364 u.s. 40 (1960). without the bright line, each regulatory endeavor became an ad hoc analysis of who benefited and how much. in the late 1970s and early 1980s, the court found regulatory takings could occur along a continuum, beginning with physical invasions (per se taking), categorical takings, and regulatory takings. a categorical taking occurs if the regulation does not substantially advance a legitimate state interest or if it denies an owner all economic use of the property. agins v. city of tiburon, 447 u.s. 255 (1980). a regulatory taking occurs if the property is unfairly burdened; fairness is determined by considering the regulation’s economic impact on the property, the owner’s investment-backed expectations, and the character of the governmental action. penn central transportation co. v. city of new york, 483 u.s. 104 (1978). again, the lack of a bright line led to ad hoc decisions based on the facts of each individual case. of particular interest to the various parties considering texas groundwater issues are a pair of cases dealing with certain fundamental aspects of property ownership. the first case was hodel v. irving where the u.s. supreme court held that being able to pass property in a will was so fundamental to ownership that removing that right would be a taking. 481 u.s. 704 (1987). the court ruled that although property rights did represent a bundle of sticks, and removing only 1 stick from the bundle did not generally reach the level of a taking, there are some sticks in the bundle so fundamental to the ownership interest that they could not be removed without affecting the entire property right. the second case involved another “fundamental right:”. . . the right to exclude others from the property.” the u.s. army corps of engineers required the owners of kuapa pond in hawaii to allow the public access to their pond. the corps concluded that improvements to the pond made it a navigable stream and therefore waters of the united states. the court said: in this case, we hold that the “right to exclude,” so universally held to be a fundamental element of the property right, falls within this category of interests that the government cannot take without compensation. kaiser aetna v. united states, 444 u.s. 164, 179 (1979). some argue that kaiser aetna should have been decided as a physical invasion case because the government claimed the waters of the pond as waters of the united states. the difference is that the government would not be occupying the land but would require the landowners to allow access to the public. that debate is purely academic because the result is the same: the owner is entitled to compensation. although property rights had been described as a “bundle of rights,” and that removing 1 or more “sticks” from the bundle would not devalue the entire interest so much that compensation must be paid, clearly some of the “sticks” weigh more than others. where the regulations affected 1 of the “fundamental” sticks in the bundle, or excessively burdened the entire bundle, the government has taken the property. one of those sticks so fundamental to property ownership is the right to exclude— texas water journal, volume 4, number 1 48 a new day? the right to build a fence around that property and protect it. that raises the question that if the owner never had that right to begin with, what value can be applied to that particular stick in the property bundle? the rule of capture prevents a landowner from building that fence—any adjacent landowner may lower water levels or even dry up wells with impunity. sipriano v. great spring waters of am., inc., 1 s.w.3d 75 (tex. 1999). if the landowner cannot prevent a neighbor from capturing that property just how much can it be worth? the current takings analysis the primary impediment to completing a takings suit has been the ripeness issue. most cases involved “as applied” challenges rather than facial challenges. this is true for 2 simple reasons: (1) no one complains until the regulation keeps them from doing something and (2) facial challenges are extremely difficult because the plaintiff has to show no possible constitutional application of the regulation can exist. the typical takings case begins with an application to develop land or enhance a building. once refused by the administrative body, the applicant sues for the value of the land, usually hoping the state will relent and allow the development. when the state does not relent, the plaintiff must first prove that the claim is ripe for adjudication. in a variety of cases, and a variety of jurisdictions, the courts have required the plaintiff to return to the administrative body seeking another possible solution or possible use for the property. first, the property owner must file a “meaningful” application, meaning they cannot apply for uses clearly not permissible. in macdonald, sommer & frates v. yolo county, 477 u.s. 340 (1986), the court complained that the property owner’s plans were “exceedingly grandiose.” the court held that the plaintiff should have filed a more reasonable application, which would likely have been approved, and therefore the claim was not ripe for consideration. the basic ripeness question revolves around the question of finality. in williamson county regional planning comm’n v. hamilton bank, 473 u.s. 172 (1985), the court held that the claim was not ripe because the plaintiff never obtained a final determination. this is different from the exhaustion of remedies requirement. exhaustion of all administrative remedies simply means completion of the administrative appeal process. finality is achieved by obtaining a determination of what will be allowed on the property. in williamson the court also required the property owner to seek a variance to the offending ordinance. a number of cases have now been turned aside for lacking ripeness. cases have been dismissed for failure to make formal application (eide v. sarasota county, 908 f.2d 529 (11th cir. 1990)), failure to file for a variance (amwest investments v. city of aurora, 701 f.supp. 1508 (d. colo. 1988)), and failure to have a final decision (kinzli v. city of santa cruz 818 f.2d 1449 (9th cir. 1987). some courts have even ruled that the property owner must file an application even if doing so is futile. see kinzli, shelter creek dev. corp. v. city of oxnard, 838 f.2d 375 (9th cir. 1988). state courts are following suit. see city of jacksonville v. wynn, 650 so.2d 182 (fla. app. 1995); ventures northwest ltd. part. v. state, 896 p.2d 70 (wash. app. 1995); and city of iowa city v. hagen electronics, inc., 545 n.w.2d 530 (iowa 1996). however, a property owner is “not required to resort to piecemeal litigation or otherwise unfair procedures in order to obtain [a final] determination.” macdonald, sommer & frates v. yolo county, 477 u.s. 340, 352 n. 7 (1986). in mayhew v. town of sunnyvale, 964 s.w.2d 922 (tex.1998) the texas supreme court ruled the plaintiff’s claims were ripe even though an application that met the new ordinances standards was never filed. the court concluded that, “under the circumstances of this case, the mayhews were not required to submit additional alternative proposals, after a year of negotiations and $500,000 in expenditures, to ripen this complaint.” mayhew, 964 s.w.2d at 932. the u.s. supreme court addressed some of the confusion created by the ad hoc analysis required by decisions in the late 1980s in a pair of cases in the early 1990s. the first was the landmark decision of lucas v. south carolina coastal council, 505 u.s. 103 (1992). mr. lucas was a developer who owned property along the south carolina coast, and as such had to submit development plans to the council. after successfully developing a number of lots along the waterfront, lucas purchased 2 remaining lots for his personal use. in the meantime the council increased the size of the “construction-free zone” to include the 2 lucas-owned lots. following the council’s decision, lucas was prohibited from building on his property, or as 1 justice put it, he could only use the property for camping. lucas sued for compensation, and the supreme court ruled in his favor. the court specifically held that the government takes property when its regulations leave the landowner with no economically beneficial use of the land. there was no balancing test against the police powers and no need to inquire into the purpose for the regulation or the legitimate state interest being advanced therein. the regulation had gone so far that the government may as well have physically occupied the property. the court allowed only 2 exceptions to this new per se takings rule: (1) the regulation prevented a nuisance that could have been prevented under the common law and (2) the regulation was part of a state’s background principles of real property. in dolan v. city of tigard, 512 u.s. 374 (1994), the court defined the rules that must be followed when analyzing exaction cases. an exaction is when the government requires dedication of some portion of the subject property as a condition texas water journal, volume 4, number 1 49a new day? to receive a development permit. in dolan, the city required a plumbing supply store to dedicate a bike path and greenway as a condition to a building permit. in reviewing the city’s actions, the court set out a 3-part test: 1. does the permit condition seek to promote a legitimate state interest? 2. does an essential nexus exist between the legitimate state interest and the permit condition? 3. does a required degree of connection exist between the exactions and the projected impact of the development? after determining the city met both of the first 2 conditions, the court held that the exactions required of the dolans were not “roughly proportional” to the impact. this “rough proportionality” test was described as an individualized determination that the exaction was related both in the nature and extent of the development’s impact. as a disjunctive test, if the government fails any of the 3 prongs, the property owner is due compensation. the court also pointed out that the exaction required public access to the greenway, meant as a floodplain easement. the public access was once again a government trespass, stepping on the “fundamental” right to exclude others. while these cases provided some structure to takings cases, a large number of the cases still come down to an ad hoc, “i know it when i see it” analysis. because government agencies are smart enough to create legislative history sufficient to pass the legitimate state interest test, and most can create the essential nexus necessary to pass the second test, that leaves only the rough proportionality question. just as the pennsylvania coal decision left courts little guidance as to when a regulation went “too far,” the courts have little guidance as to when a regulation is “roughly proportional.” in addressing any takings claim, we now seem to have a several step process to follow. first, determine what property interest was taken. if the property interest is 1 of the fundamental sticks in the bundle or if the property is so burdened that the entire bundle loses all economically viable use, the case is a per se taking. one measure of whether the affected property right is fundamental is whether the state could have taken the same action under nuisance law or based on the background principles of property law. the next step is to determine whether the state’s action promotes a legitimate state interest and if the regulation has the essential nexus to that state interest. finally, the court must do an ad hoc analysis of whether the regulation is roughly proportional to impact of the activity. so the “current takings analysis” reverts back to 1978 where the u.s. supreme court set out a 3-prong test in penn central, a case involving the owners of grand central station in new york city and the city’s ordinance prohibiting substantial alteration of “historic structures.” penn central transportation company wanted to further develop the grand central station property by constructing office space above it. the city’s landmarks preservation commission  prohibited any such development, thereby requiring the property continue to be used as a railroad station with the existing commercial spaces. before the u.s. supreme court, the landowners argued that their development rights for the air space above the terminal had been taken by the city’s decision. the court articulated a 3-part test for determining regulatory takings (that do not fall into either the physical occupation or categorical takings): 1. the “economic impact” of the government action, 2. the extent to which the action “interferes with distinct investment-backed expectations,” and 3. the “character” of the action. measuring the economic impact of a government regulation should be fairly straightforward, especially in light of the facts of the penn central case itself. penn central transportation company (and its predecessor owners of grand central station) had operated the railroad terminal for 65 years, and nothing in the regulation prevented or restrained those operations in any way. in essence, the company could always do what it had always done, so could not thereby claim any economic impact of the regulation. where the regulation does have an economic impact, that impact must be measured against the investment-backed expectations of the landowner. one of the key considerations is whether the landowner had notice of the regulation when the property was purchased. although such notice is not a bar to a takings claim (see palazzolo v. rhode island 535 u.s. 606 (2001)), it is a strong factor in determining if the landowner could have reasonably “expected” a different result given the nature of the regulation. finally, the penn central opinion requires a review the “character” of the governmental action, a term that has been difficult to define and utilize. discussion of the “character” of the government action has taken several turns and followed multiple definitions. in lucas the court characterized the government action to be tantamount to a physical invasion of the property, leading to “categorical” takings as opposed to regulatory takings. in fact, if the government action is so burdensome as to prevent all economically viable use of the property, the rest of the penn central analysis becomes irrelevant. other courts have reviewed the purpose of the regulations as a balancing test against the private interests, in essence determining if the costs of the regulation are best borne by individual landowners or by the public at large. agins v. city of tiburon 447 u.s. 255 (1980) (overruled by lingle v. chevron u.s.a. inc., 544 u.s. 528 (2005)). another interpretation is found in keystone bituminous coal assn. v. debenedictis, 480 u.s. 470 (1987), where the court reviewed the regulation in terms of reciprocity of advantage: that the regulated community both benefits from and is burtexas water journal, volume 4, number 1 50 a new day? dened by a regulation. this may be a particularly useful way to view groundwater regulation, where a landowner may not be allowed to withdraw as much water as desired, but neither will his neighbor. the overall regulation should ensure all landowners are protected in exchange for their acceptance of the limitations in their permits. in 2005 the u.s. supreme court handed down its opinion in lingle, overruling the earlier decision in agins and providing some clarification regarding the character question in takings litigation. in lingle the court specifically repudiated the “substantially advances a legitimate government purpose” as a test better brought under due process arguments instead of takings litigation where the primary purpose is to determine if a regulation is so burdensome as to require compensation be paid. any regulation that does not advance a legitimate government purpose should be invalid on its face, thereby removing the regulation and any need for a takings analysis. further, lingle appears to have limited the “character” part of the penn central analysis (at least as far as it applies to groundwater regulation) to the reciprocity of advantage question. if the regulation is targeted to a small number of landowners who will ultimately benefit very little from the regulation’s impact on the entire community, then a court should be more likely to find there has been a taking. if, however, the regulation is applied broadly and helps benefit the entire regulated community (as well as the public at large), then the government will have met the burden imposed by the third prong of the penn central test. the texas supreme court has always followed the penn central analysis to review regulatory takings suits, and the 2 seminal cases for texas are mayhew v. town of sunnyvale, 964 s.w.2d 922 (tex.1998) and sheffield development co., inc. v. city of glenn heights, 140 s.w.3d 660 (tex. 2004) (both decided before lingle). the standard for compensable regulatory takings in texas is set forth in detail by the texas supreme court in mayhew v. town of sunnyvale. following the penn central takings analysis, mayhew found a compensable regulatory taking can occur if: 1. the regulation does not substantially advance a legitimate governmental purpose, 2. the regulation denies the owner all economically viable use of the property, or 3. the regulation unreasonably interferes with the owner’s use and enjoyment of the property. the first factor is now out of place based on the u.s. supreme court decision in lingle; a regulation that does not advance a “legitimate governmental purpose” should be considered invalid and the court may void such a regulation under a due process argument.9 if the invalid regulation causes irreparable harm before it can be rectified by the court, then certainly takings compensation would also be due, but that is a separate analysis that doesn’t involve the first prong of the mayhew test. the second factor reflects the decision in the lucas case and would only apply to groundwater regulation where the landowner is denied access to any groundwater and either (1) the entire property loses all economic value (the plaintiff proves the land cannot be developed without access to the groundwater) or (2) the courts find that groundwater should be considered a separate estate from the land and therefore valued separately. (see discussion below regarding the problems of valuing an estate of uncertain size.) most regulatory takings cases center on the third factor, which the mayhew opinion divides into 2 parts: 1. the economic impact of the regulation, and 2. the extent to which the regulation interferes with distinct investment-backed expectations. in mayhew the court considered a city’s decision to deny a proposed planned development and whether that denial caused a taking of the developer’s property. the trial court had ruled in favor of the developer, including findings that the development’s value prior to the town’s zoning ordinance requiring 1 unit per acre in planned developments was greater than $15,000,000, but as a result of the town’s denial the property was only worth $2,400,000 fair market value. the court of appeals reversed the district court’s judgment and dismissed the mayhews’ claims against the town, holding that none of the claims was ripe for adjudication. town of sunnyvale v. mayhew, 905 s.w.2d 234 (tex. app.—dallas 1994) (tex. app.—dallas 1994), rev’d on other grounds by mayhew v. town of sunnyvale, 964 s.w.2d 922 (tex.1998). the texas supreme court held that the claims were ripe for adjudication: “the ripeness doctrine does not require a property owner, such as the mayhews, to seek permits for development that the property owner does not deem economically viable.” mayhew, 964 s.w.2d at 932. because the claims were ripe, the court then had to perform the takings analysis. the court quickly disposed of the first 2 factors, holding that the town’s ordinances did advance a legitimate state interest and that the property held some economic value after the town’s decision. mayhew, 964 s.w.2d at 935 and 937, respectively. that left the final factor and the balancing test between the economic impact of the denial and the property owner’s investment backed expectations. the court ruled against the mayhews because they did not have a “reasonable investmentbacked expectation to build 3,600 units on their property.” 9 the texas supreme court discussed this issue and recognized various critiques of the rule, but then held that texas is bound by the u.s. supreme court precedent. sheffield, 140 s.w.3d at 674. presumably texas courts must now also follow the precedent in lingle. texas water journal, volume 4, number 1 51 mayhew, 964 s.w.2d at 937. the mayhews originally purchased the property for ranching and only later decided to offer it up for development. the historical use of the property is “critically important when determining the reasonable investment-backed expectation of the landowner.” mayhew, 964 s.w.2d at 937. the 2004 case involving sheffield development provides some additional detail in analyzing takings claims. just as the mayhews wanted a higher density development, the sheffield development co. investigated property that was partially developed and purchased the property relying on the ability to continue development at the same density. days after sheffield purchased the property, the city of glenn heights adopted a moratorium on accepting new plats until it could review its zoning ordinances to ensure they were consistent with the comprehensive land-use plan. eventually the city re-zoned the sheffield’s property to only allow half the number of homes. sheffield sued the city for takings and other constitutional claims, most of which the trial court found in sheffield’s favor, and, following a jury trial on the damages, sheffield was awarded $485,000 in damages. the tenth court of appeals ruled that the re-zoning did constitute a compensable taking, reasoning that the economic damages (a 38% reduction in the value of its property) and that the rezoning unreasonably interfered with sheffield’s investment-backed expectations. city of glenn heights v. sheffield development co., 61 s.w.3d 634 (tex. app.—waco 2001) rev’d by sheffield development co., inc. v. city of glenn heights, 140 s.w.3d 660 (tex. 2004). on appeal, the texas supreme court reversed the court of appeals and rendered a decision in favor of the city. first, the court said the city’s rezoning effort, although perhaps flawed in intent and execution, was not significantly different than the zoning effort made by cities every day. sheffield, 140 s.w.3d at 679. further, because sheffield could not show damages from the moratorium that were distinct from the rezoning or that the 15-month delay caused by the moratorium impacted its reasonable investment-backed expectations, the moratorium did not cause a taking. sheffield, 140 s.w.3d at 680. perhaps because local governments and state agencies work to avoid incurring any takings liability, there are a dearth of cases where plaintiffs have successfully won takings damages. in 2006 the fourth court of appeals ruled a taking had occurred in the case of city of san antonio v. el dorado amusement co. inc., 195 s.w.3d 238 (tex. app.—san antonio 2006, pet. denied). in that case the city zoning changed on the plaintiff’s property, which had been operating for 18 years providing on-site alcohol consumption, and the new prohibition on alcohol sales changed both the profitability and sale value of that property. damages were awarded for both lost profits until the property was sold and the loss of value at that sale. el dorado195 s.w.3d at 248. a 2011 oil and gas case from the 14th court of appeals held that a taking occurred when the city of houston prevented the owner of certain mineral rights from drilling to capture those minerals and the owner’s lease eventually expired. city of houston v. maguire oil co., 342 s.w.3d 726 (tex. app.— houston [14 dist.] 2011). in that case the only estate at issue was the severed mineral rights, and the court held a taking had occurred when city staff erroneously applied a city ordinance that prohibited oil and gas wells in the city’s extraterritorial jurisdiction to the plaintiff’s property, which was located within the city limits. maguire, 342 s.w.3d at 747. the damages awarded were based on the difference, if any, between the fair market value of maguire’s mineral estate immediately before and immediately after the revocation of the drilling permit by the city. regulating groundwater through groundwater conservation districts the texas legislature first began creating local regulatory agencies for the purpose of conserving groundwater in 1951, long after the 1917 voter ratification of the “conservation amendment,” section 59, article xvi, texas constitution. the agencies, now known as groundwater conservation districts, cover either an entire aquifer or some manageable portion thereof. their only duty is to protect the resource so that those who depend on groundwater are assured of a plentiful, clean supply. groundwater conservation districts have 3 regulatory tools at their disposal: spacing requirements, production limitations, and production fees10. these 3 tools are typically implemented through a permitting system, and most groundwater conservation districts require permits to drill a new well and operating or production permits for a specific term of years. groundwater conservation district jurisdiction spacing requirements nearly all of the groundwater conservation districts above the ogallala aquifer in the texas panhandle have adopted spacing requirements that prevent new wells from being drilled within a certain distance of any other well, and in some instances within a certain distance of the property line. the ogallala is a flat, sandy aquifer, and the primary problems are depletion 10 not all districts have all 3 of these tools. nearly all groundwater conservation districts were created by special legislation and the powers and duties of each are unique. a new day? texas water journal, volume 4, number 1 52 and overlapping cones of depression. every water well creates a cone of depression centered at the well and spreading out for some distance from the well. the distance it spreads is dependent on the hydrogeology of the aquifer. in the case of mr. east, the railroad well’s cone of depression extended onto the east property and mr. east claimed the railroad’s well operations drained all the water out of his well. wells much deeper and more powerful than were possible in 1904 can have cones of depression that reach for great distances. by spacing out the wells, the local district can minimize the impact of overlapping cones of depression. this helps ensure each landowner access to some amount of water. please note that the rule of capture still applies: whiteacre cannot sue blackacre for allowing the cone of depression to extend onto whiteacre. but the district’s spacing regulation helps protect both properties and thereby increases both the land values and productivity. production limitations in other areas, such as houston and san antonio, spacing requirements would have little or no effect on the problems facing those particular aquifer systems. in houston the problem is subsidence—the sinking of the land surface due to groundwater withdrawals. in san antonio the problem is rapidly dropping aquifer levels during periods of drought, adversely affecting both well owners and surface springs. in both locations the preferred method of regulation is limiting the amount of water that can be produced from each regulated well. by reducing the overall production, the aquifer pressure and water levels can be maintained to prevent the harm. again, the rule of capture still applies. the texas supreme court was asked to address this specific issue in 1978, 2 years after the creation of the harris-galveston coastal subsidence district when a group of landowners filed suit against an industrial group for causing its land to subside. friendswood v. smith-southwest indus., 576 s.w.2d 21 (tex. 1978). the court held that the rule of capture still applied, so the defendant owed the plaintiff no duty of care. the court did, however, prospectively modify the rule of capture to allow for future suits where the plaintiff could show that negligent pumping by the defendant had caused plaintiff’s land to subside. never did the court even consider what some have argued: that inside groundwater conservation districts the rule of capture has been abolished or modified. as aquifer depletion becomes more of a problem and as cities begin looking to rural groundwater supplies as their future water source, more and more groundwater conservation districts are adopting production limitations. the overall effect will be a safer supply for everyone. production fees production fees, the third tool, are not available to all of the groundwater conservation districts in the state and are greatly limited by statute. even with the statutory limits, fees can be used to help reduce production. the harris-galveston subsidence district is the only district that has adopted a fee schedule designed to create an economic disincentive to pumping groundwater. in the beckendorff v. harris-galveston coastal subsidence dist., 558 s.w.2d 75, (tex. civ. app.—houston [14th dist.] 1977), writ ref ’d per curiam, 563 s.w.2d 239 (tex. 1978), decision the houston court of appeals specifically approved the use of fees as a regulatory tool designed to reduce production. the austin court of appeals agreed 13 years later in creedmoor maha water supply corp. v. barton spring-edwards aquifer conservation dist., 784 s.w.2d 79 (tex. app.—austin 1989, writ denied). in both cases the appellate court said that the fees were designed to create a disincentive to pump groundwater and were thereby regulatory tools rather than taxes. takings implications of groundwater regulations every aspect of groundwater regulation may be rife with takings implications and certainly potential litigation. collectively the groundwater conservation districts must set desired future conditions for the various aquifers within a groundwater management area. § 36.108, water code. once the desired future condition is set for a given aquifer, each groundwater conservation district must regulate that aquifer to achieve that goal. § 36.1071, water code (management plan requirements); § 36.1132, water code (permitted groundwater production will achieve an applicable desired future condition). the amount of groundwater that may be withdrawn annually (and still achieve the desired future condition) is represented by the modeled available groundwater. § 36.1132(b)(1), water code. taken together these legislative mandates create a perfect storm for litigation. if the district continues to issue permits without limitation, the district is subject to enforcement action by the texas commission on environmental quality. § 36.1082(b)(7), water code. that district may also be the target of a suit by a landowner whose groundwater levels are steadily dropping because of the production authorized by the district. if the district sets a limit on production and stops issuing permits, an existing landowner that cannot get a permit to drill a well is likely to file a takings claim (see discussion of the bragg case supra). the only other option is for the district to continue issuing permits for new wells, and then require reductions in all permits to assure achieving the desired future condition. of course, permittees a new day? texas water journal, volume 4, number 1 53 forced to reduce their pumping are likely to sue based on their investment-backed expectations. whether any of the claims will succeed depends entirely upon an analysis under mayhew and day and mcdaniel, and whether a landowner has been denied a “fair share” of the groundwater. each case will be judged on its own facts, including the district’s management plan, regulations and permit decisions, and the plaintiff’s property interests and investment-backed expectations. future cases bragg v eaa bragg v. edwards aquifer authority, no. 06-1118170-cv (38th jud. dist., medina county, tex., filed nov. 21, 2006) glenn and jolynn bragg (“braggs”) applied to the edwards aquifer authority for initial regular permits to irrigate 2 pecan orchards: the “d’hanis” orchard and the “home place” orchard. in both cases the braggs requested 6 acre-feet of groundwater per acre, citing the higher water demand for pecan trees, although neither well had ever produced that amount of groundwater either during the historical use period or during any year prior to filing the litigation. however, under the edwards aquifer authority act permits may only be granted for the amount of water withdrawn and beneficially used during an historical use period (1971–1992). the well at the home place orchard had historical use, but the d’hanis orchard well was drilled in 1995 and did not qualify for an initial regular permit. as a result, the authority denied the d’hanis permit application on the basis that there was no irrigation during the historical use period. the authority granted the home place permit application at the statutory minimum for agricultural irrigation wells of 2 acre-feet of water per acre (which is more than the amount ever actually produced from that well) for each acre of land actually irrigated during any 1 year of the historical use period. the braggs claimed a constitutional taking of their common law water rights and sought compensation from the authority. the braggs originally sued the authority for federal civil rights violations as well, but all of those claims were denied in federal court and the state takings claim was remanded to state court. following a bench trial, the court ruled that edwards aquifer authority act’s enactment and implementation did not deprive plaintiffs of all economically viable use of their property and concluded that • the act’s enactment and implementation “substantially advance the government’s legitimate interest” in protecting the edwards aquifer and the associated springs; • no statute of limitations bar actions brought for takings claims raised as part of the permitting process; • the authority’s denial of the d’hanis initial regular permit application “unreasonably impeded the plaintiff’s [sic] use of the d’hanis orchard as a pecan farm, causing them a severe economic impact; interfered with their investment-backed expectations, and constituted a regulatory taking of the plaintiff’s [sic] property” under the penn central and sheffield (texas) cases for which the compensation owed the braggs is $134,918.40 (calculated from the difference, per acre, in the value of dry land farm land and edwards aquifer-irrigated farm land in medina county); and • the authority’s granting of the home place initial regular permit for less than the amount requested “unreasonably impeded the plaintiff’s [sic] use of the home place orchard as a pecan farm, causing them a severe economic impact; interfered with their investmentbacked expectations, and constituted a regulatory taking of the plaintiff’s [sic] property” under the penn central and sheffield (texas) cases for which the compensation owed the braggs is $597,575 (current market value of $5,500 for the 108.65 acre-feet of eaa permitted rights that were requested, but not granted). the total amount of compensation found owed was $732,493.40. the judge’s findings of fact and conclusions of law found, among other things, that • “the authority acted solely as mandated by the act and without discretion in denying the d’hanis application and in granting a permit on the home place property for 120.2 acre-feet of annual edwards aquifer water withdrawals” in an initial regular permit and • the authority’s requested attorney’s fees were reasonable. notably, the bragg court considered whether the relevant parcel for a takings could be limited to the groundwater estate in the regulated edwards aquifer and accepted such an approach with respect to the home place property, though that same calculus was rejected for the d’hanis property. further, the court determined that the braggs should be compensated for the home place property not based on the value of their groundwater rights but based on the groundwater rights the braggs requested from the authority but did not receive. the authority and the braggs each filed notices of appeal, and the parties’ briefs have all been filed with the fourth court of appeals in san antonio. in addition, 3 amicus briefs were filed, 1 by the san antonio water system in support of the authority and 2 filed in support of the braggs by the pacific a new day? texas water journal, volume 4, number 1 54 legal foundation and the texas farm bureau, et al11 (other amicus briefs are likely to be filed in the near future). the court of appeals heard oral argument on march 28, 2013. the medina county district court held that the authority took the bragg’s property through 2 actions: 1. denying a permit to withdraw non-exempt groundwater from a well and 2. granting a permit for an amount less than the landowners requested. neither approach considered alternative groundwater supplies still available to the braggs, thereby creating law that grants a vested property right in each and every aquifer formation beneath a property as a severable estate. neither approach considered the edwards aquifer groundwater still available to the braggs through exempt-use domestic and livestock wells or section 1.19 term permits, thereby creating law that grants a vested property right in each and every type of permit offered by a district. the fourth court of appeals must clarify just how takings analysis should be applied to groundwater regulation, and provide a regulatory path that groundwater conservation districts may follow to avoid taking private property in the future. as groundwater conservation districts approach the limits on the amount of groundwater that may be produced and still achieve that aquifer’s desired future condition each board of directors will be faced with a choice of denying new applications (highly unlikely in light of the day decision) or reducing existing permits. under this district court’s analysis, every groundwater conservation district would be potentially liable for money damages for every denied application and for every reduced permit. there is no path to nonliability other than foregoing any regulation. other potential lawsuits the potential for takings lawsuits filed against groundwater conservation districts is virtually limitless. because each aquifer is different the regulations addressing who gets permits and for how much is different. potential plaintiffs includes those who are denied permits, those whose permits are reduced and any landowner who watches aquifer levels decline over time. not only will production limitations be challenged, but spacing limitations as well. key questions include: 1. does this mean every urban and suburban lot owner is entitled to a water well and some amount of groundwater (or compensation)? what is the “fair-share” due to a small-lot landowner? 11 other amici on the texas farm bureau brief: texas and southwest cattle raisers association, texas forestry association, texas association of dairymen, texas wildlife association, and texas cattle feeders association. 2. can a landowner file suit against a groundwater conservation district for allowing groundwater beneath his property to decline (caused by permits for withdrawal on other properties)? 3. are municipalities that prohibit or restrict water wells now also facing takings liability? 4. is there a potential for federal takings claims in addition to state takings claims? 5. can groundwater conservation districts say “no permit this year” without takings liability, or would they face liability for a temporary takings? how will this affect water conservation requirements and drought restrictions? 6. do historical users, who have investment-backed expectations, have the best claim for a takings? 7. is domestic and livestock use enough of a “fair share” or is that going to depend on how many acres the landowner controls? 8. is there a vested property right to each aquifer or formation, or as long as the landowner has access to some reasonable amount of groundwater can restrictions on tapping other formations avoid takings liability? conclusion the argument over groundwater regulation in texas will be settled as groundwater conservation districts all over the state continue to tighten controls on groundwater production and landowners begin filing takings claims. cities will continue to look for plentiful, affordable water supplies for their growing populations, and rural areas will continue to worry about their long-term supplies as aquifer production increases. people who are looking to protect future supplies often speak of aquifers as “our water,” while those who are seeking to sell water supplies only refer to “my water.” in fact, groundwater is neither “ours” nor anybody’s “mine,” which is exactly why reasonable regulation is so necessary. landowners cannot fence their groundwater, cannot quantify the water that flows past their property underground, and cannot prevent anyone from drying up their well. landowners’ only “fence” is a strong groundwater conservation district permit quantifying their ability to capture groundwater and the requirement that their neighbors obtain permits. fighting against that regulation through takings lawsuits will only weaken everyone’s claim to ownership of groundwater. a new day? surface water-groundwater interaction issues in texas texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 9 number 1 | 2018 https://www.texaswaterjournal.org volume 9, number 1 2018 issn 2160-5319 editorial board todd h. votteler, ph.d. editor-in-chief collaborative water resolution llc kathy a. alexander, ph.d. gabriel collins, j.d. center for energy studies baker institute for public policy robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. meadows center for water and the environment texas state university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management, research, and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. ken a. rainwater, ph.d. texas tech university rosario sanchez, ph.d. texas water resources institute managing editor kathy wythe texas water resources institute layout editor sarah richardson texas water resources institute staff editor kristina j. trevino, ph.d. trinity university cover photo: sunrise over coastal bend bays & estuaries program land. © 2017 john reuthinger. see winning photos at wildlifeinfocus.org. http://wildlifeinfocus.org http://wildlifeinfocus.org https://www.texaswaterjournal.org https://www.texaswaterjournal.org texas water resources institute texas water journal volume 9, number 1, december 17, 2018 pages 129-149 abstract: in texas, surface water is owned and regulated by the state of texas, whereas groundwater is owned by respective property owners under the rule of capture. owners of surface water rights, issued by the state, and groundwater may use and sell their water as a private property right. the texas commission on environmental quality administers surface water rights, while groundwater conservation districts (where they exist) are primarily responsible for permitting groundwater use. this paper focuses on the complexity of both systems that are designed to manage water resources differently with specific emphasis on where surface water and groundwater interact. surface water-groundwater interactions have contributed to disputes over the actual ownership and right to water. the available science and the limitations of the models currently used to make water availability and permitting determinations are discussed, as are the investments in field data gathering and interpretation and model enhancements that can lead to better assessments of surface water-groundwater interactions and impacts. more complete science and enhanced models may also help reduce the timeline associated with the permitting of future water supply and use strategies. keywords: surface water, groundwater, interaction, availability models, permitting decisions surface water-groundwater interaction issues in texas 1principal geoscientist at intera incorporated. 2deputy executive director of the meadows center for water and the environment and professor of practice of geography at texas state university and a former senior scientist and deputy executive administrator at the texas water development board. 3principal of rsah2o, llc and a former chairman of the texas water development board and commissioner of the texas commission on environmental quality *corresponding author: syoung@intera.com texas water journal, volume 9, number 1 steven c. young1*, robert e. mace2, and carlos rubinstein3 citation: young sc, mace re, rubinstein c. 2018. surface water-groundwater interaction issues in texas. texas water journal. 9(1):129-149. available from: https://doi.org/10.21423/twj.v9i1.7084. © 2018 steven c. young, robert e. mace, carlos rubinstein. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v9i1.7084 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 9, number 1 surface water-groundwater interaction issues in texas130 terms used in paper acronyms descriptive name bbasc basin and bay area stakeholder committee bfi baseflow index dorm daily operational routing model dfc(s) desired future condition(s) eaa edwards aquifer authority es environmental stewardship esa endangered species act gam(s) groundwater availability model(s) gcd(s) groundwater conservation district(s) gma(s) groundwater management area(s) iha indicators of hydrologic alteration lcra lower colorado river authority lcrb lower colorado river basin mag(s) modeled available groundwater(s) mbfit modified base flow index with threshold scotus supreme court of the united states sw-gw surface water-groundwater tceq texas commission on environmental quality tifp texas in-stream flow program tpwd texas parks and wildlife department twc texas water code twdb texas water development board usfws u.s. fish and wildlife service usgs u.s. geological survey wam(s) water availability model(s) wrap water rights analysis package introduction the growing use of water resources and greater frequency of droughts, with associated impacts to streamflow, are placing a greater focus on groundwater and surface water interactions in texas by state agencies (nas 2005; scanlon et al. 2005; twdb 2016a; toll et al. 2017; young et al. 2017; smith et al. 2015; chowdhury et al. 2010). among the regulatory issues affected by surface water-groundwater (sw-gw) interactions in texas are managing water rights along a river, complying with the endangered species act (esa), implementing environmental flow recommendations, and obtaining bed and banks permits. a question central to all these regulatory issues is how to quantify the impacts of groundwater pumping on the availability of surface water. this question is at the center of several recent studies, conflicts and lawsuits in texas involving the rio grande, san saba, colorado, and brazos rivers. the situation on the san saba river resulted, in part, in an interim charge for texas house natural resources committee (85th legislative session) to evaluate “emerging issues in groundwater and surface-water interaction, in particular in areas of increasing competition for scarce resources”(straus 2017). as shown by the recent events associated with pumping groundwater near the four aforementioned rivers, an emerging issue associated with sw-gw interactions is that groundwater permitting and availability must recognize a person’s ownership and property interest in water. sound science is critical to ensuring such protection and determinations. to properly address questions of how groundwater pumping is affecting surface-water availability, there is a need to properly understand sw-gw interactions (nas 2005). several factors contribute to this lack of understanding, including an inadequate number of field studies that address sw-gw interactions, the use of baseflow estimation techniques that do not texas water journal, volume 9, number 1 131surface water-groundwater interaction issues in texas in some situations, the tceq may classify groundwater as “under the direct influence of surface water.” groundwater classified as under the direct influence of surface water in texas requires a higher level of treatment for a public water supply than does groundwater that is not under the direct influence of surface water. twc chapter 290, subchapter d defines groundwater under the direct influence of surface water as: “any water beneath the surface of the ground with: (a) significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as giardia lamblia or cryptosporidium; (b) significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or ph which closely correlate to climatological or surface water conditions; or (c) site-specific characteristics including measurements of water quality parameters, well construction details, existing geological attributes, and other features that are similar to groundwater sources that have been identified by the executive director as being under the direct influence of surface water.” the tceq definition above is based on u.s. environmental protection agency regulation (40 cfr 141.2). finally, the twc defines groundwater as “…water percolating below the surface of the earth” (twc §35.002(5) and §36.001(5)). however, stream underflow has been expressly excluded from being considered groundwater because it is state water. this distinction is important because it grants the tceq the legal authority to restrict non-domestic pumping of groundwater near streams if groundwater is present in an underflow zone. ownership and regulation of surface water and groundwater in texas texas surface water law has evolved from the riparian doctrine to the prior appropriation doctrine. surface water is owned by the state of texas held in trust for the public (twc §11.021, §11.0235). with passage of the water rights adjudication act in 1967, texas adopted a unified surface water permit system. unless the purpose of use is domestic or livestock (exempt uses that remain riparian), anyone wishing to use surface water must receive permission from the state in the form of a “water right.” the tceq is primarily responsible for granting surface water rights, which then become private property in and of themselves unless forfeited through nonuse. texas groundwater law is rooted in the rule of capture. texas landowners own the water beneath their property (twc §36.002) and may use or sell the water as private property. the texas legislature, however, has authorized the establishprovide consistent estimates or consider bank flow, and model simulations that do not adequately reflect the physical processes occurring in sw-gw interactions (parsons 1999; halford and mayer 2000; hdr 2007; mace et al. 2007; asquith et al. 2005; scanlon et al. 2005; partington 2012; young et al. 2017). the purpose of this paper is to (1) define key terms and identify statutes in the texas water code (twc) associated with sw-gw interactions, (2) summarize the role of sw-gw interactions in the management of water resources, (3) present key physical processes that occur in sw-gw interactions, (4) discuss the limitations of currently used techniques to estimate and model sw-gw interactions, and (5) present recommendations to improve the science in relation to sw-gw interactions in texas. although this paper is specific to texas law, management issues, and case studies, the issues raised could be of benefit and application outside of the state for anyone considering sw-gw interactions in their management decisions. definition of groundwater and surface water the twc does not define surface water specifically but rather makes the terms “surface water” and “state water” synonymous. twc §11.021 defines state water as “the water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the gulf of mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state…” in addition to the surface water features identified in §11.021, the twc also uses the term “watercourse.” the courts have described a watercourse as having (1) a defined bed and banks, (2) a current of water, and (3) a permanent source of supply (domel v. city of georgetown, austin 1999). these criteria are crucial in determining if water is classifiable as state water. generally, until water reaches a watercourse (where it becomes state water), it is classified as diffuse water. diffuse water includes rainwater, snowmelt, and overland flow and is the property of the landowner until it joins a watercourse. another water feature classified as state water is “underflow,” which is generally associated with the presence of subsurface water within the bed and banks of a watercourse. texas commission on environmental quality (tceq) rule §297.1 defines a stream’s underflow as “[w]ater in sand, soil, and gravel below the bed of the watercourse, together with the water in the lateral extensions of the water-bearing material on each side of the surface channel, such that the surface flows are in contact with the subsurface flows, the latter flows being confined within a space reasonably defined and having a direction corresponding to that of the surface flow” (30 tex. admin. code §297.1(55)). texas water journal, volume 9, number 1 surface water-groundwater interaction issues in texas132 ment of groundwater conservation districts (gcds), which generally have the authority to modify the rule of capture by promulgating rules for conserving, protecting, recharging, and preventing waste of underground water. twc §36.0015 states that gcds “are the state’s preferred method of groundwater management in order to protect property rights, balance the conservation and development of groundwater to meet the needs of this state, and use best available science in the conservation and development of groundwater.” there are currently 100 gcds that cover about 70% of the area of texas. gcds operate though a board of directors, whose members are either elected or appointed, generally by elected officials, per the conditions established in the legislative act that created the district or twc if the district was through petition. gcds may choose to recognize sw-gw interaction through the adoptions of management goals to maintain springflow and/ or stream baseflow. the tceq cannot authorize or regulate groundwater pumping via permit, just as a gcd cannot regulate the permitting and diversion of surface water. consequently, an inherent statutory conflict is created by having these separate regulatory mechanisms, particularly as it relates to sw-gw interaction. the differences in the regulatory agencies, technical disciplines, and ownership issues associated with surface water and groundwater have led to the development of programs to develop regulatory tools for evaluating groundwater availability and surface water availability but few tools for evaluating sw-gw interactions. surface water-groundwater interaction traditionally, surface water and groundwater have been treated independently when managing these resources in texas. however, it is well understood that these two resources are often hydrologically connected. in some instances, surface water serves as a source of flow that can change the chemistry and availability of groundwater. conversely, groundwater can increase the flow volume and affect the chemistry of surface water. in some cases, the same stretch of river may lose flow to the aquifer in one season and gain flow from the aquifer in another season. as the demand for water and the need for new water supplies increase in texas, understanding the hydrologic connection between surface water and groundwater becomes integral to developing appropriate legislation and strategies to effectively use and manage these two resources. gaining and losing streams a stream that receives water emerging from a submerged spring or other groundwater seepage through its streambed is a gaining stream (winter et al. 1998). a stream that loses water to groundwater by outflow through the steambed is called a losing stream (winter et al. 1998). figure 1 illustrates the dynamics of gaining and losing streams. a stream may always gain water from an aquifer (perennial streams) or always lose water to an aquifer (intermittent or ephemeral streams). the flow conditions in a stream might also vary over time and across space, such that it is characterized as both gaining and losing. the conditions that cause these variances can be natural, such as flood events, or anthropogenic, such as pumping. an important metric for evaluating sw-gw interactions is the difference in elevation between the water table in an aquifer and the water level in a stream. for a gaining stream, the water-level elevation in the stream is lower than the water level in the immediate aquifer. under these conditions, the aquifer discharges water to the stream, increasing the stream’s flow. for a losing stream, the water-level elevation in the stream is higher than the water-table elevation in the aquifer. under these conditions, the stream recharges water to the aquifer. groundwater contribution to a stream can originate from unconfined aquifers or from confined aquifers. for the case of an unconfined aquifer, groundwater flow typically exits an aquifer and flows to the stream as diffuse flow. in coastal aquifigure 1. schematic showing groundwater flow toward a gaining stream (a) and groundwater flow away from a losing stream (b) (modified from winter et al. 1998). texas water journal, volume 9, number 1 133surface water-groundwater interaction issues in texas in the aquifer than in the stream. figures 2b and 2c show the effects of a rainfall event on water levels in the stream, causing them to become temporarily higher than the water level in the aquifer that is in contact with the stream. during this time, stream water flows into the aquifer and is stored in the banks of the aquifer as bank storage. after the flood event has passed and the stream becomes a gaining stream again (see figure 2d and 2e), the water held as bank storage returns to the stream and mixes with the water that originated from the aquifer. after bank flow has ceded, the stream and aquifer water levels eventually return to conditions typical for a gaining stream. significant bank storage and flow occurs when (1) a stream reach is subject to stage increases, (2) bank materials have a high permeability, and (3) sufficient volumes of permeable bank material or alluvium provide storage (rassam and werner 2008). the abundance of high permeability alluvium will also promote the occurrence of underflow. in general, downstream reaches are more favorable to bank storage than headwater reaches (kondolf et al. 1987) because they have greater drainage areas that produce large flood peaks and are more likely to be flanked by alluvium with a large capacity to store water relative to streamflow. kunkle (1962) showed, in some cases, annual discharge from a groundwater basin can be less than the annual discharge from bank storage. the identification and calculation of bank flow requires at a minimum measured water-level elevations and water quality parameters from a river gage and wells in the aquifer underlying and adjacent to the stream. figure 3 shows water levels measured in 2007 at a colorado river gage and a water well located about 200 feet from the colorado river (urs and baer engineering 2008). these data are from a monitoring program performed by the lower colorado river authority (lcra) to investigate sw-gw interactions near the city of wharton from 2006 to 2008. over that period, the groundwater level in the aquifer was higher than the stream water level in the colorado river over 80% of the time, which means the colorado river was a gaining stream (see figure 1) over 80% of the time. however, during multiple high stream stage events, the increase in stream water levels caused significant increases in the groundwater level that represent bank storage in the aquifer (as illustrated in figures 2b and 2c). on several occasions, the bank storage became great enough to cause a reversal of groundwater flow direction 200 feet from the stream. following the peak stream stage and the accumulation of bank storage, bank flow (as illustrated in figures 2d and 2e) occurs as water levels recede in both the aquifer and the stream until another high stage ensues. although the data in figure 3 can be used to demonstrate the occurrence of bank storage and bank flow to sw-gw interactions, additional information is needed to determine the amount of water transferred between the stream and the fers such as the gulf coast aquifer system, the majority of groundwater contribution to streams occurs as diffuse flow. for the case of a confined aquifer, pressured groundwater flows through preferential flow pathways created by faults, fractures, and karstic features until it exits at a spring location and enters a stream. in the texas hill county, the confined section of the edwards aquifer produces some of the biggest springs in texas. these springs include barton springs, san marcos springs, comal springs, las moras springs, and san felipe springs. the texas water development board (twdb) (2016a) made several key points regarding sw-gw interactions in texas: • an estimated 9.3 million acre-feet of groundwater flows from major and minor aquifers to surface water in an average year. this represents about 30% of the average surface water flow in texas. • aquifer interactions with surface water vary regionally and within each aquifer. between 14% and 72% of streamflow over aquifer outcrop areas is due to groundwater discharge from major and minor aquifers. • the largest groundwater contributions to surface water occur in east texas, the hill country, and around major springs in west texas. • the aquifer with the most groundwater discharge to surface water is the gulf coast aquifer, with an estimated 3.8 million acre-feet per year. besides indicating that sw-gw interactions can significantly affect streamflow, the twdb (2016a) shows that local geology and meteorological conditions are important factors that affect sw-gw interactions. baseflow and bank flow tceq rule §297.1 defines baseflow as “[t]he portion of streamflow uninfluenced by recent rainfall or flood runoff and is comprised of springflow, seepage, discharge from artesian wells or other groundwater sources, and the delayed drainage of large lakes and swamps.” this definition implies that bank flow is not a part of baseflow. as discussed by freeze and cherry (1979), bank storage effects and bank flows can complicate the process of defining and determining baseflow. bank storage refers to the variable amount of water stored temporarily in the stream banks during rising flood stage (todd 1955). bank flow is the release of bank storage back to the stream that occurs following high river stage. despite being potentially important to characterizing sw-gw interactions, bank flow and bank storage are not recognized in tceq rules and are not considered in the water balance simulated by water availability models (wams) and groundwater availability models (gams). bank flow is the flow of water into and out of the banks along a stream (figure 2). figure 2a shows water levels under conditions for a gaining stream where the water level is higher texas water journal, volume 9, number 1 surface water-groundwater interaction issues in texas134 aquifer. among the additional information required to make such a determination are hydraulic properties of the aquifer and measurements of water quality parameters. the chemical data is used to partition flow based on mass-balance considerations. numerous studies have successfully used geochemical analysis of stable isotopes, anions, and salinity to estimate baseflow (boulton et al. 1999; porter 2001; oxtobee and novakowki 2002; brodie et al. 2005; skm 2012; scholl et al. 2015; rhodes et al. 2017; cook et al. 2018). the importance of bank storage to sw-gw interactions is difficult to assess in most texas rivers because of the sophisticated level of analysis and large quantity of data required to derive definitive answers. in order to thoroughly quantify bank storage effects, evaluations of flow exchange should include both figure 2. schematic showing groundwater flow toward a stream at sequential times. water levels during average flow conditions at a gaining stream (a). increase in stream elevation during a flooding event causes hydraulic gradient reversal at stream-aquifer interface. streamflow enters aquifer and becomes bank storage in stream bank (b and c). decrease in stream elevation after a flooding event. bank storage flows back to the stream as water level in the streams lowers over time (d and e). water levels in stream and aquifer return to conditions that existed prior to flood event (f). texas water journal, volume 9, number 1 135surface water-groundwater interaction issues in texas calculations based on hydraulic data and geochemical data. one texas river that has a relatively large amount of permeable bank material is the brazos river. a recent study by rhodes et al. (2017) that includes both hydraulic and geochemical analysis demonstrates that bank storage can be a significant component of groundwater flow to the brazos river. during a fourmonth river stage recession following a high stage event, less than 4% of the water discharged from the subsurface resembled the chemical fingerprint of the alluvial aquifer. instead, the chemistry of the discharged water closely resembled the high stage event river water. rhodes et al. (2017) concluded that the brazos river is well connected to rechargeable bank storage reservoirs but disconnected from the broader alluvial aquifer. surface water and groundwater availability in texas in 1997, senate bill 1 of the 75th texas legislature directed the tceq (then called the texas natural resource conservation commission) to develop wams for river basins in texas. a wam “is a computer based simulation program used to evaluate the amount of surface water in a river or stream that would be available to existing or proposed water rights under specified basin operations and hydrologic conditions”(hdr 2007). wams consist of two parts: the modeling program called the water rights analysis package (wrap)( wurbs 2001) and the text files that contain basin-specific information for the wrap to process. wams do not explicitly simulate water fluxes associated with stream-aquifer interactions, but they can indirectly account for the effects of a losing stream through a channel loss function or a naturalized flow adjustment file (hdr 2007). as noted by hdr (2007), however, the majority of wams do not include channel losses because the losses are typically small relative to streamflows. the authors believe that a potentially more valuable surface water model for investigating sw-gw interactions than wams are flow-routing models for the stream basin. flow-routing models solve hydrologic equations that describe how a pulse of water moves downstream. flow-routing models calculate flow as a function of space and time using equations based on flow continuity and momentum. two examples of routing models are the lcra’s daily operational routing model (dorm) (carron et al. 2010) and the upper rio grande water operation model (boroughs 2013). these and other routing models can be used to estimate sw-gw interactions by performing water budget calculations that account for all losses and gains along a stream reach except for those associated with sw-gw interaction. data used by dorm for its water budget calculations include hourly data from gaged tributaries, return flows, releases from lake travis, releases from lady bird lake, and known diversions. working with lcra to find twoto fourweek periods of stable low-flow conditions with high quality data, young et al. (2017) found that dorm simulations provided credible estimates of sw-gw interaction for low-flow periods in 2012, 2013, 2014, and 2015. based on dorm results that were generally consistent with previous estimates figure 3. comparison of measured water levels in the colorado river and in the colorado river alluvium near the city of wharton in 2007 (from urs and baer engineering 2007). texas water journal, volume 9, number 1 surface water-groundwater interaction issues in texas136 of sw-gw interactions (saunders 2009, 2012), young et al. (2017) recommends that dorm simulations be incorporated into field studies aimed at measuring sw-gw interaction along the colorado river. in 2001, senate bill 2 tasked the twdb with developing gams of all major and minor aquifers in texas. the twdb defines groundwater availability modeling as “the process of developing and using computer programs to estimate future trends in the amount of water available in an aquifer and is based on hydrogeologic principles, actual aquifer measurements, and guidance from persons with interest in the models and the program” (twdb 2016b). the goal of the gam program “is to provide useful and timely information for determining groundwater availability for the citizens of texas” (twdb 2016b). gams are constructed using the family of usgs modflow codes that simulate groundwater flow (mcdonald and harbaugh 1988; harbaugh and mcdonald 1996; harbaugh et al. 2000; harbaugh 2005; niswonger et al. 2005; panday et al. 2013). gams, in their current capacity, simulate water movement based on the physics of water flow and can simulate the exchange of water between aquifers and streams. among the factors that limit the ability of gams to accurately simulate sw-gw interactions is that they were developed to address water issues at a relatively large spatial scale and are not readily suitable to simulate sw-gw interactions at a local scale of a few miles and less (scanlon 2005; hdr 2007; kelley et al. 2008). another issue that limits gams’ capability for accurately simulating sw-gw interaction at the local scale is that they use time periods of months to years; whereas, accurate modeling of sw-gw interaction will usually require time periods of hours to days (scanlon 2005). besides having the limitations associated with spatial and temporal scales that are large compared to scales that drive sw-gw interactions, gams are also limited because gams cannot simulate unsaturated flow, which can be an important process for accurate modeling of sw-gw interaction. recognizing that these are gam limitations and not necessarily a limitation of modflow, as packages to include unsaturated flow processes exist, highlights one of the ways to enhance gams, or a modification of a gam, to improve simulations of sw-gw interactions. despite the inherent limitations with gams for simulating sw-gw interaction at the local scale of a few miles, gams will not necessarily provide reasonable estimates of sw-gw interaction even at the regional scale unless considerable care is taken with its development. specifically, the model calibration process for a gam is particularly important because of the wide range of factors affecting sw-gw interactions. these factors include how recharge, evapotranspiration, streamflow, stream channel geometry, stream-bed hydraulic properties, and runoff are represented in the model. additionally, another major issue affecting gam simulation of sw-gw interaction, discussed by mace et al. (2007), is the vertical resolution (i.e., the layer thicknesses) of the groundwater model: “one of the difficulties in accurately representing surface water-groundwater interaction is the vertical resolution in the groundwater availability model. the interaction of a stream and an aquifer is an intimate affair that occurs locally on the order of feet to tens of feet. in many cases, the current groundwater availability models are too coarse, both laterally and vertically, to accurately represent surface water-groundwater interaction. the difference between a gaining stream and a losing stream can be the difference of a few feet of groundwater level change, especially for the aquifers along the gulf coast where there is not much topography.” the importance of vertical resolution (inclusion of shallow model layers) at the regional scale is twofold. one reason is that the vertical resolution affects a gam’s capability to represent a shallow groundwater flow zone. this shallow flow zone is the primary conduit in the real physical aquifer system for much of the recharge that enter the groundwater system to move relatively quickly to discharge locations in the aquifer’s outcrop, which includes seeps, springs, and surface water bodies. a second reason is that the vertical resolution prevents deep pumping wells that are nearly hydraulically isolated from water table near ground surface from being represented in the same model layer that is a river or a lake. one of the first applications of shallow model layers to represent a shallow, local flow system in a regional groundwater model was the lower colorado river basin (lcrb) model (young et al. 2009). the lcrb model sought to improve the accuracy of both recharge and sw-gw interaction by including a shallow and relatively thin model layer near the water table to represent the shallow groundwater flow system. the incorporation of the shallow groundwater layer was made with considerations toward improving how the model represents the aquifers and alluvium. the geology representation was guided by using maps of surface geology including alluvium developed by barnes (1974). figure 4 shows that the county-scale lcrb model provides a significantly better match to historical estimates of groundwater contributions to the colorado river than the regional-scale central gulf coast gam (chowdhury et al. 2004). with regard to the source for pumped groundwater for matagorda, wharton, and colorado counties from 1980 to 2000, the central gulf coast gam predicts that 66% is leakage from streams whereas the lcrb model predicts 71% is from recharge from precipitation (young et al. 2009). the large differences in the source for the pumped groundwater illustrate that at a regional scale, model layering can have a significant effect on simulated sw-gw interactions. among the gams that include a thin model layer near the water table to represent shallow groundtexas water journal, volume 9, number 1 137surface water-groundwater interaction issues in texas water flow system are a gam for the yegua-jackson aquifer (deeds et al. 2010), a gam for the northern trinity and woodbine aquifers (kelley et al. 2014), and a gam for the central portion of the sparta, queen city, and carrizo-wilcox aquifers (young et al. 2018). independent studies funded by the twdb (hdr 2007) and the tceq (scanlon et al. 2005) have investigated the ability of models to predict sw-gw interactions. both studies emphasized that there is a critical need for field data that can be used to develop appropriate conceptual models and guidelines for developing gams to help standardize and improve the approaches used to simulate sw-gw interactions. before significant improvements in simulating sw-gw interactions with gams and other groundwater can occur, additional field studies need to be conducted. scanlon et al. (2005) recommended that additional field studies be performed that include (1) co-locating groundwater monitoring wells with stream gages, (2) characterizing stream morphology and aquifer hydraulic properties, (3) collecting water-level and water quality data, (4) evaluating streamflow gains and losses and aquifer bank storage and bank flow, (5) conducting aquifer tests near streams, and (6) evaluating the time it takes water to travel between streams and wells. stream hydrographs besides using models that simulate the movement of surface water or groundwater, sw-gw interactions can be estimated by using hydrograph-separation methods. stream hydrographs show changes in measured water levels (that is, stream height or stage) at river gages as a function of time. hydrograph-separation methods (sometimes called baseflow separation) aim to distinguish a streamflow hydrograph into two components: 1) quickflow – flow in direct response to a rainfall event including overland flow (runoff) and direct rainfall onto the stream surface (direct precipitation). 2) baseflow – the steady flow derived from groundwater discharge to the stream and lateral movement in the soil profile (interflow). many hydrograph-separation methods have been developed to estimate the baseflow and runoff components of streamflow, and these methods have been implemented in a number of computer programs that facilitate the estimation process (pettyjohn and henning 1979; nathan and mcmahon 1990; wahl and wahl 1995; sloto and crouse 1996; rutledge 1998; arnold and allen 1999; eckhardt 2005; lim et al. 2005; piggott et al. 2005). although each of the methods is based on formalized algorithms for identifying the baseflow component figure 4. comparison of measured baseflow along the colorado river (field data) with simulated baseflow values from the lcrb groundwater model and from the central gulf coast groundwater availability model (data from young et al. 2009; lcrb = lower colorado river basin, gam = groundwater availability model). the field data includes gain-loss studies performed with river gage data reported by slade (2002) and saunders (2006). texas water journal, volume 9, number 1 surface water-groundwater interaction issues in texas138 of total streamflow, they can differ substantially in their underlying assumptions and degree of freedom in their application. because of the different underlying assumptions with the different methods, there are advantages to using more than one hydrograph-separation method to analyze a streamflow record to assess uncertainty. hydrograph-separation methods have been widely used to estimate sw-gw interaction and recharge across watersheds in texas (young and kelley 2006; deeds et al. 2010; scanlon et al. 2012; kelley et al. 2014; ewing et al. 2016; twdb 2016a; young et al. 2018). most of these texas studies have used either the base-flow index (bfi) program (institute of hydrology 1980; wahl and wahl 1995) or the baseflow program developed for use with the texas a&m university’s soil and water assessment tool (nathan and mahon 1990; arnold and allen 1999). a potential concern with these two methods and other hydrograph-separation techniques is that they do not explicitly account for discharge that did not originate from the groundwater basin (scanlon et al. 2005) and thus will likely overestimate baseflow. scanlon et al. (2005) identify these sources as in-stream detention and subsequent discharge of surface water, alluvium aquifer recharge such as bank storage/release following flood events, perched groundwater zones, or fractured zone recharge/discharge in the near subsurface. in addition to the type of hydrograph-separation programs used by hydrogeologists to identify groundwater contribution to a stream, there are other types of hydrograph-separation programs used by surface water hydrologists to identify flow regimes. these type of hydrograph separations are performed to support the texas instream flow program (tifp). the purpose the tifp is to perform scientific and engineering studies to determine flow conditions necessary for supporting a sound ecological environment in the river basins of texas (tceq, tpwd, twdb 2008). to identify flow regimes, surface water hydrologist use either the indicators of hydrologic alteration (iha) program (richter et al. 1996) or the modified base flow index with threshold (mbfit) (brandes et al. 2011) to class a portion of a hydrograph into one of four flow regimes: subsistence flow, baseflow, high flow pulses, or overbank flows. figure 5a shows the results of a stream hydrograph analysis performed using the bfi program. the bfi program is used to partition a streamflow into a runoff component comprising diffuse surface water flow and a baseflow component comprising groundwater flow into a stream. figure 5b shows results from applying iha to the same stream hydrograph in figure 5a to identify baseflow regimes and high flow pulse regimes. the application of the bfi and the iha programs illustrate the different type of results produced by each program. because the two programs use very different sets of underlying assumptions, there is not a common set of information on which the two disciplines can rely to develop a shared understanding and quantification of sw-gw interactions. figure 5. analysis of a stream gage hydrograph by a surface water hydrologist using the iha software (a) and by a groundwater hydrologist using the bfi software (b) (iha = indicators of hydrologic alteration; bfi = baseflow index). texas water journal, volume 9, number 1 139surface water-groundwater interaction issues in texas halford and mayer (2000) share some of the same concerns that scanlon et al. (2005) state regarding the reliability of the hydrograph-separation techniques without some type of third-party dataset or analysis to ground truth the estimated groundwater contribution calculated from the hydrograph separation. halford and mayer (2000) question the accuracy of the hydrograph-separation technique when the underlying assumptions of the technique have not been validated. based on their analysis of 14 studies in nine states, halford and mayer (2000) say that: • “the recession-curve displacement method and other hydrograph-separation techniques are poor tools for estimating groundwater discharge or recharge when major assumptions of the methods are violated.” • “the identification of groundwater discharge in stream discharge records can be ambiguous because drainage from bank storage, wetlands, surface water bodies, soils, and snowpacks also decreases exponentially during the recession period.” usgs (2017) noted that an important limitation of the bfi program, as well as other hydrograph-separation methods, is that “in general, the method [bfi program] interprets most regulated releases as baseflow. if the program is used for regulated streams, the effects of regulation must be carefully accounted for thorough manual adjustment of the program output.” even when underlying assumptions of the baseflow separation methods are met, the applications of the methods can still be problematic. this situation is illustrated by results from partington et al. (2012) who analyzed numerically simulated river hydrographs with automated baseflow separation techniques. partington et al. (2012) found that the automated baseflow separation underestimates the simulated baseflow by as much as 28% or overestimates it by up to 74% during rainfall events. they also concluded that no separation method was clearly superior to the others, as the performance of the various methods varies with different soil types, antecedent moisture conditions, and rainfall events. some of the concerns documented by halford and mayer (2000) and scanlon et al. (2005) are confirmed by young et al. (2018) who estimated baseflow from 35 stream gages in groundwater management area 12. for the 35 stream gages, the average recharge rate across the watershed estimated using the bfi method and the program developed for use with the texas a&m’s soil and water assessment tool was 2.70 inches and 3.78 inches, respectively, which is about a 140% difference. such a large difference is evidence that additional work is needed to vet and ground truth the applications of baseflow-separation techniques to quantify sw-gw interaction. in our opinion, twdb (2016a) further illustrates the importance to vet and ground truth the approaches used for interpreting stream hydrographs in texas. this study, prepared in response to house bill 1232 of the 84th texas legislature, estimated the volume of flows from aquifers to surface water in texas. twdb (2016a) used the results from several u.s. geological survey (usgs) studies (wolock 2003a, 2003b; wolock et al. 2004) to spatially distribute groundwater contributions to surface water for the outcrop areas of the major and minor aquifers. wolock (2003a) analyzed hydrographs from approximately 19,000 stream gages across the united states using the bfi program (wahl and wahl 1995). one output of the bfi program is the bfi index, which is the average percentage that groundwater contributes to streamflow. figure 6 shows the bfi values from wolock (2003a) for the lower colorado river downstream of tom miller dam in austin. these nine values indicate that average annual groundwater contributions range from 40% to 65% of the total surface water flow in the colorado river. among other sw-gw studies performed in the region are stream low-flow gain-loss studies by saunders (2009, 2012). results from these studies can be used to generate bfi values. the analysis of saunders’ data produces bfi values that are up to four times smaller than those presented by wolock (2003a) at some of the gages shown in figure 6. comparisons of studies involving sw-gw interaction that provide different water budgets show that the variability is not only caused by using different types of data over varying time periods but also by using different assumptions for interpreting the data. among the assumptions that could be important to an analysis are those related to flow diversions, flow returns, regulated flows upstream, seeps from perched groundwater tables, pumping in or near the alluvium, alluvial recharge, and bank storage/bank flow. the need for well documented and vetted approaches for interpreting stream hydrographs is cited in previous studies funded by twdb (hdr 2007; young et al. 2017) and tceq (scanlon et al. 2005) as an important and necessary step toward improving the understanding and modeling of sw-gw interaction in texas. water resource management decisions affected by sw-gw interaction the twc recognizes that surface water and groundwater resources are hydrologically connected, at least locally, and requires that regulatory authorities consider this when issuing permits. twc §36.113(d)(2) requires that gcds, when evaluating groundwater permits, consider whether “…the proposed use of water unreasonably affects existing groundwater and surface water resources or existing permit holders…” similarly, twc §11.151 states “in considering an application for a permit to store, take, or divert surface water, the commission [tceq] shall consider the effects, if any, on groundwater or groundwater recharge.” statute recognizes the potential intertexas water journal, volume 9, number 1 surface water-groundwater interaction issues in texas140 connectivity between groundwater and surface water but (1) doesn’t specify what level of interaction would spark action on a permit, (2) doesn’t require any action by the regulating body, and (3) doesn’t coordinate the regulatory realms of tceq from the surface water perspective or gcds from the groundwater perspective. pumping near streams in texas, there are thousands of shallow wells with depths less than 100 feet that are located near streams. some of these wells, and those located in the river alluvium within a few hundred feet of the river, pump sufficient water to impact the flow between the stream and the aquifer. historically, there have been relatively few cases where regulators curtailed pumping. the general lack of action by parties affected is likely the result of a combination of several factors including (1) the lack of clarity in the twc with regard to how to characterize underflow and how to assess pumping impacts, (2) the dearth of field measurements characterizing sw-gw interactions, (3) the absence of a demonstrated and standardized approach for analyzing stream hydrographs, (4) the reluctance of gcds to require well owners to meter and report water use, and (5) the inaccuracies associated with many historical gain/loss studies on stream reaches and the inability of wams and gams to evaluate sw-gw interactions. the drought-induced periods of lower surface water availability during the last decade have created conditions such that affected parties or stakeholders have requested regulatory assistance to protect state waters from adverse impacts caused by groundwater pumping. this has occurred on the rio grande, san saba, brazos, and colorado rivers. rio grande in new mexico in january 2013, texas submitted a complaint to the supreme court of the united states (scotus) alleging that new mexico was in violation of the 1938 rio grande compact. specifically, texas alleged that new mexico had violated the compact by allowing the diversion of surface water through the pumping of groundwater that is hydrologically connected to the rio grande, thereby diminishing texas’ ability to obtain the water the compact apportioned to it. the new mexico wells, which are estimated to number 3,000, pump as much as 270,000 acre-feet/year (tlo 2018). in addition, new mexico has figure 6. baseflow index (bfi) from wolock (2003a) for stream gages on the lower reach of the colorado river. the bfi figures are percentages of groundwater contribution to streamflow. texas water journal, volume 9, number 1 141surface water-groundwater interaction issues in texas permitted wells that will facilitate additional water use in the future. in january 2017, new mexico requested that scotus dismiss the complaint from texas and dismiss a request from the united states to intervene as a party to the litigation. the special master appointed by the supreme court on this case ruled against new mexico’s motion to dismiss texas’ complaint and to hear oral arguments for the united states complaint. in early 2018, scotus heard arguments by the united states to intervene as a party and to essentially make the same claims as texas. in march 2018, the scotus ruled that the united states can be a party to the litigation. litigation will likely proceed well into 2019 to discovery, motions, and eventually a hearing of the merits before the special master. the special master will then make recommendations to scotus on the merits of the case (scotus 2013). san saba river since 2011, the tceq has received complaints alleging shallow groundwater wells are being used to pump surface water in the form of underflow from the san saba river. the area identified is a 40-mile reach between menard and brady (house committee on natural resources 2018; sadasivam 2017; 2018), where numerous wells within one mile of the river are completed in the alluvial deposits, which are believed to be a lateral extension of the river. before 2000, the san saba river was never known to cease flowing—not even during the record drought of the 1950s. from july to october in six of the past 15 years, and for every summer from 2011 to 2015 (house committee on natural resources 2018; sadasivam 2017; 2018), the river has gone dry along the 40-mile reach. in 2015, tceq investigation report number 1254241 (tceq 2015) presented findings from its hydrogeological investigation and determined that some of the groundwater wells were illegally capturing state waters and that, for future pumping to continue, the well owners needed to obtain the appropriate surface water rights. in may 2018, the texas house natural resources committee conducted a public hearing in brady, texas that included both local and statewide perspectives on issues related to sw-gw interactions. during the hearing, arguments were heard from upstream users that natural climate changes and decreased springflows are reasons for the low surface water flows whereas the downstream users claim that wells drilled close to the rivers are pumping the san saba dry. among the factors that could affect future actions is the threat of federal regulation. the san saba is home to five species of mussels that the u.s. fish and wildlife service (usfws) is considering listing as endangered. if any one of those mussel species is found to be endangered, it could mean restrictions on water use from the san saba. brazos river in 2009, surface water rights holders in the brazos river basin were subject to the first of several calls from the dow chemical company to exercise its senior priority water right. these water calls sparked a series of water diversion curtailments and associated actions that led the tceq to, in response to a petition from affected water right holders, establish a watermaster program to regulate diversion from the brazos river starting in 2015. curtailments have heightened awareness that groundwater pumping in the brazos river alluvium could be affecting surface water availability. within robertson, brazos, and burleson counties, the gcds have issued permits totaling more than 130,000 acre-feet/year, and the twdb has reported pumping greater than 100,000 acre-feet/year for several years in the brazos river alluvium. recently, the twdb (wade et al. 2017) used the brazos river alluvium gam (ewing and jigmond 2016) to establish 210,536 acre-feet/year as the minimum modeled available groundwater (mag) for groundwater management area (gma) 12 between 2013 and 2070. the concern that groundwater pumping could affect surface water availability can be investigated by evaluating the water budget for the twdb gam simulations (wade et al. 2017) and additional gam simulations that involved no pumping. the joint analysis of these gam simulations indicate that nearly all of the groundwater pumped from the brazos river alluvium wells originates from the brazos river. colorado river during the first joint planning cycle, environmental stewardship (es) petitioned gma 12 (es 2011) to argue that the desired future conditions (dfcs) did not adequately consider sw-gw relationships and did not include protection for the colorado river, brazos river, and associated streams and springs. during the second joint planning cycle, es (2016) presented results from gam and wam simulations to argue that future groundwater pumping would lead to declines in colorado river flow to impact over 1,100 water rights. es (2016) stated: “critical environmental flow standards for the colorado and brazos rivers are threatened by groundwater pumping and must be considered and mitigated in establishing dfcs for aquifers that impact the colorado and brazos rivers and their tributaries.” “there are logical arguments and credible evidence that the groundwater pumping in the proposed dfcs will have an adverse impact on surface water permits making it proper that the impact on surface water rights be considered under section 36.108(c)(7).” texas water journal, volume 9, number 1 surface water-groundwater interaction issues in texas142 in finding that the gma 12’s dfcs were reasonable and gma 12 did not need to account for sw-gw interactions, the twdb (2012) stated the following: 1. “senate bill 3 does not place the responsibilities discussed by environmental stewardship on the districts. before granting or denying a permit, a district must consider, among other things, whether ‘the proposed use of water unreasonably affects existing groundwater and surface water resources or existing permit holders.’ but that requirement is part of the permitting process; there is no explicit requirement in the statutes under which this petition was brought for the districts to consider impacts on spring flow and other interactions between groundwater and surface water.” 2. “a number of factors affect instream flow and outflows from the colorado and brazos rivers and technical work remains to be done to better monitor, analyzed, and manage that interaction.”...“but, the issue at hand is whether the dfcs are reasonable as expressions of the desired future conditions of the aquifers.” an overarching concern expressed by es (2011) is that gma 12 did not use the science and technology necessary and appropriate to simulate sw-gw impacts and evaluate groundwater pumping impacts on streamflows. during the second joint planning session, es (2016) maintained that the dfcs are not protective of the environment and recognized that the currently adopted dfcs are the current legal standard and, as such, should not be significantly changed until the gam has been improved and better data are available to assess sw-gw interactions. to help correct this situation, es, the lcra, the brazos river authority, and the gcds in gma 12 have worked with the twdb to update the gam for the central portion of the queen city, sparta, and carrizo-wilcox aquifers (young et al. 2018), which includes improved sw-gw interactions. the gam update included several modifications to better represent a shallow groundwater flow system. one of these modifications was to explicitly represent the colorado river alluvium and the brazos river alluvium as independent hydrostratigraphic entities with thicknesses and hydraulic properties based on hydrogeological studies and with pumping rates based on wells screened across the alluviums. another modification was to represent aquifers using two model layers instead of a single model layer where they outcrop and receive recharge from rainfall. in addition, the gam grid spacing in the vicinity of the colorado river and brazos river was changed from 1 mile by 1 mile to as small as 0.25 mile by 0.25 mile in order to more accurately represent well locations and the location and bathymetries of the colorado and brazos rivers. rio grande at el paso while pumping near el paso has not recently been a concern for regulatory agencies with regard to sw-gw interactions, it has been historically and may likely be in the future. in the first half of the 1900s, estimated pumping from deep wells in the el paso area increased from about 2,200 acre-feet/year in 1910 to about 31,000 acre-feet/year in 1953 (knowles and kennedy 1956). this caused a reversal of flow between the rio grande alluvium and the deeper aquifers. hutchison (2006) noted that in the el paso area, groundwater flow was generally toward the alluvium until about 1940, then away from the alluvium after 1960. hutchison (2006), using the groundwater model developed by heywood and yager (2003), showed groundwater pumping in the el paso area caused a switch from an overall flow of groundwater to surface water of about 3,000 acre-feet/year to 5,000 acre-feet/year before 1925 to an overall flow of surface water to groundwater after 1925. over the last 20 years, the net losses from the rio grande have stabilized at about 33,000 acre-feet/year (mace et al. 2007). with regard to the reported sw-gw interaction for the rio grande at el paso, it is important to recognize that these fluxes contain biases introduced by the uncertainties associated with using regional models. bed and bank permits, environmental flows, endangered species and desired future conditions besides surface water rights, other regulatory issues that could be affected by sw-gw interactions are environmental flows, habitat for endangered species, bed and bank permits, and desired future conditions. environmental flows senate bill 2 passed into law by the 77th texas legislature in 2001 established the tifp. tifp is jointly administered by the texas parks and wildlife department (tpwd), the tceq, and the twdb in collaboration as appropriate with other entities. the goal of the tifp is to identify flow regimes (quantity and timing of flow) that are adequate to maintain an ecologically sound environment, conserving fish and wildlife resources while also providing sustained benefits for other human uses of water resources. one of the objectives of the instream flow program is to mimic the natural flow regime as closely as possible. streamflow requirements (standards) for particular locations in specific stream systems are defined in terms of flow regimes. twc §11.002.16 defines an environmental flow regime as “quantities that reflect seasonal and yearly fluctuations that typically would vary geographically, by specific location in a texas water journal, volume 9, number 1 143surface water-groundwater interaction issues in texas 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.” the development of an instream flow regime includes four components: subsistence flows, baseflows, within-bank high flow pulses, and overbank high pulse flows. for some streams, sw-gw interactions can become an important process that impacts the quantity and quality of streamflow during subsistence flows or baseflows. subsistence flows occur during drought or very dry conditions. the primary objective of subsistence flow standards is to maintain tolerable water quality conditions to provide minimal aquatic habitat space for the survival of aquatic organisms. baseflows represent the range of average or normal flow conditions without the effects of recent rainfall. a primary objective of baseflow standards is to provide adequate habitat for the support of diverse, native aquatic communities and maintain groundwater levels to support riparian vegetation. endangered species act the esa took effect in 1973. its purpose is to conserve and recover listed endangered species and the ecosystems upon which they depend. sw-gw interactions are potentially important to the esa in the execution of esa’s section 9— the taking provision. this section makes it a felony to “take” a threatened or endangered species without specific authorization from the usfws. the esa provides for both civil and criminal prosecution for illegal “takes.” the u.s. supreme court has expanded a “take” to include activities that disrupt the habitat of the threatened or endangered species or interfere with usual feeding and breeding activity. species in texas that have protection under the esa are listed in the texas parks and wildlife code 68.002 and the texas administrative code. the aquatic animals under esa protection includes birds, fish, and amphibians. the texas hornshell mussel is under esa protection in texas (federal register 2018) and 11 other freshwater mussel species are currently under review by the usfws for esa listing (ingram 2017). as a result of legal threats of a federal takeover of the edwards aquifer under the esa, the texas legislature adopted the edwards aquifer authority (eaa) act in 1993 (votteler 1998). the eaa was created to preserve the edwards aquifer while protecting threatened and endangered species in the aquifer-fed comal and san marcos springs. the creation of the eaa clearly demonstrates that sw-gw interactions can be important to maintaining habitat for endangered species. the esa was also a key component of lawsuits involving the deaths of an unknown number of whooping cranes in aransas bay during the drought of 2008 and 2009 (usca 2014; votteler 2017). plaintiffs argued that the deaths were indirectly a result of insufficient freshwater flows into aransas bay caused by diversion of water, authorized under water rights issued by the tceq, from the san antonio and guadalupe river basins. an initial court ruling by a corpus christi district judge stated that the esa had been violated by tceq’s administration of water rights, but a later ruling by the 5th circuit court of appeal in 2014 stated that the tceq did not violate the esa based on the narrow issue of proximate cause. proximate cause is a legal concept providing that a person should only be held liable for that sequence if the outcome would have been reasonably foreseeable. despite the 5th circuit ruling exonerating the tceq of violating the esa, the ruling confirms that esa considerations need to be properly evaluated as part of water resource planning. bed and banks permits twc §11.042 and tceq rule §295 allow the bank and bed of any flowing natural stream in texas to convey water from the place of storage or discharge to the place of use or diversion. this can include wastewater discharges that are derived from a groundwater source where ownership may be maintained. a bed and bank permit requires the applicant to indicate the source, amount, and rates of discharge and diversion (tceq 2017). this information is necessary for the agency to calculate conveyance losses that may result from the bed and banks transfer. per tceq §295.114(b)(6) conveyance losses include the loss to transportation, evaporation, seepage, channel, or other associated carriage losses from the point of discharge to the point of diversion. sw-gw interactions are important to conveyance losses where streams lose flow to the adjacent aquifer. such losses would occur where the stream stage is at a higher elevation than the water table and the amount of conveyance losses would depend on the geometry of the stream channel, the hydraulic gradient away from the stream, the hydraulic properties of the streambed, and the hydraulic properties of the aquifer. desired future conditions house bill 1763 of the 79th texas legislature requires joint planning among gcds in a gma to establish dfcs every five years. twdb rules define dfcs as “[t]he desired, quantified condition of groundwater resources (such as water levels, water quality, spring flows, or volumes) at a specified time or times in the future or in perpetuity…” twc §36.1008 (2) (d)(4) requires that, as part of the process for setting dfcs, gmas consider “environmental impacts, including impacts on spring flow and other interactions between groundwater texas water journal, volume 9, number 1 surface water-groundwater interaction issues in texas144 and surface water” among other factors. gmas have different interpretations of what “consider” means, which have generally been informed by overall management goals. for example, the gcds in gma 9 have developed a dfc in the edwards group of the edwards-trinity (plateau) aquifer that “provides maximum, reasonable and achievable protection for springs and baseflow to creeks and rivers (gma 9 et al. 2016). other gmas have chosen dfcs that do not maintain baseflow and springflow. in gma 12, gcds, river authorities, and the colorado-lavaca basin and bay area stakeholder committee (bbasc) co-funded work on the central sparta-queen city-carrizo-wilcox gam to improve the capability of the gam to simulate sw-gw interactions. the improved capability is primarily achieved by creating a shallow groundwater flow zone in the aquifer outcrops, through the addition of model layers, which interacts with streams independently of the deeper groundwater flow zone. to help address their concerns with improving the management of the shallow groundwater flow system, the gcds in gma 13 have adopted a dfc that limits drawdown in the outcrop of the carrizo-wilcox aquifer (hutchison 2017). developing better science a number of activities could be accomplished to improve the science—and thus the regulatory tools—for quantifying sw-gw interactions. conduct field studies lack of field data is perhaps the greatest obstacle to improving the capability of gams to simulate sw-gw interactions, as data are required to develop and validate approaches for modeling this interaction. field studies are lacking because they are relatively expensive and no state programs currently mandate these studies. as part of a tceq study concerning sw-gw interactions, scanlon et al. (2005) recommended that future studies include (1) co-locating groundwater monitoring wells with stream gages, (2) evaluating streamflow gains and losses, (3) evaluating stream channel morphology, (4) conducting aquifer tests near streams, and (5) evaluating the time it takes water to travel between streams and wells. an important aspect of any field study is that it collects the necessary information to support the development and testing of models that can be used by state agencies, river authorities, private or public utilities, and hydrogeological consultants to simulate sw-gw interactions. specifically, field studies should be evaluated in light of anticipated statutory issues that could be before the texas legislature in future sessions. such studies should include the measurements of water levels and water quality parameters, the evaluation of stream hydrographs, the quantification of bank storage and bank flow, and the modeling of sw-gw interactions. vet approaches for calculating baseflow using hydrograph separation because of the wide range of conditions that exists along rivers and the relatively simple algorithms used by most hydrograph-separation techniques to estimate baseflow, there is considerable opportunity in the analysis for introduction of error into the estimate for baseflow. as such, when estimates of baseflow are important to understanding sw-gw interactions, the baseflow estimate should be properly vetted and uncertainties should be identified and quantified. the vetting process should include a thorough discussion and analysis of factors that could affect the application such as return flows, diversions, dam flows, groundwater pumping, and bank storage. this discussion should quantify, to the extent possible, the potential for each of these factors to impact the stream hydrograph and to introduce uncertainty into the calculated baseflow. the analysis should include multiple and even alternative methods for estimating baseflow in order to help account for the uncertainty associated with any one technique and the sensitivity of the calculated baseflow to the actual mechanics used to implement a particular technique. update and improve groundwater availability models gams were originally designed to address large regional-scale groundwater issues and provide information to regional water planning groups and for gcd management plans. since the start of joint planning, there has been increased interest on the part of gcds and other stakeholders to use gams to address groundwater management issues at the local scale. among the reasons for the expanded interest are that gams are generally considered to represent the best available science, and the prolonged periods of low surface water availability in 2009 and 2011 created additional interest in using groundwater as a water supply. the application of gams to evaluate the impacts of specific well fields usually requires discretization and additional field data to better represent site conditions. such modifications increase the costs for developing a gam and can complicate its use in regional planning. given that gams are increasingly being used for much more than what the original twdb gam program intended, we make two recommendations to improve the gams. the first is to evaluate whether the mission of the gam program should be modified to better address issues associated with sw-gw interactions. the second is to develop more standardization among the gams, where appropriate, for representing interactions that occur in aquifer outcrops such as recharge, evapotranspiration, and sw-gw interactions. along with this stantexas water journal, volume 9, number 1 145surface water-groundwater interaction issues in texas dardization comes the case-by-case analysis of which analytical and numerical methods best represent sw-gw interaction and whether these representations can be accurately included in appropriately-scaled gams. the better science derived from wams and gams as well as increased capabilities may result in less contested issues relative to water permitting activities. develop science to better define baseflow, bank flow, underflow among the key needs for improving the regulation of sw-gw interactions are the science and data necessary to define the terms used to characterize sw-gw interactions. these terms include baseflow, bank flow, and underflow. there are two significant technical problems associated with defining these terms. the first problem is that these three terms define quantifies that are transient and spatially variable. the second problem is the lack of science to demonstrate how to appropriately accommodate temporal and spatial variability into the measurement of each term. because of these two technical problems, regulatory agencies called upon to mitigate disputes involving sw-gw interactions may not have, or in most cases do not have, sufficient information to make appropriate regulatory distinctions and determinations. with respect to developing a science program to better characterize sw-gw interactions, there are two important considerations. one consideration is that the environmental conditions, which include geology, hydrogeology, and meteorology, have a significant impact of sw-gw interactions. as a result, there is no need to study every stream because streams with similar environmental conditions should have similar type of sw-gw interactions. a second consideration is that because sw-gw interactions are not equally important across texas, a science program should prioritize the critical areas for study based in part on their environmental conditions. conclusions sw-gw interactions can be important for managing water rights along a river, complying with the esa, implementing environmental flow recommendations, and obtaining bed and banks permits. a key issue to these regulatory and management concerns is how to quantify the exchange of water between streams and aquifers and to what extent does groundwater pumping impact this exchange and the availability of surface water. currently, texas does not possess a sufficient understanding of sw-gw interactions to readily address these concerns at the granularity necessary to facilitate permitting determinations. the uncertainties associated with quantifying sw-gw interactions have contributed to disputes regarding actual ownership and rights to water. locations where these disputes have recently occurred or are occurring include the rio grande, the san saba river, the colorado river, and the brazos river. to help effectively integrate, regulate, and manage surface water and groundwater resources in texas, recommendations include conducting field studies focused on quantifying sw-gw interactions, performing additional vetting and ground truthing on hydrograph-separation techniques, improving the capability of gams to simulate sw-gw interactions, and developing the science and tools necessary to define and quantify underflow, bank flow, and baseflow. communication and cooperation among river authorities, gcds, the tceq and twdb must also be improved. such cooperative efforts recently occurred while updating the gma 12 carrizo-wilcox gam, for which appreciable funding was contributed by the lcra and brazos river authority and by the post oak savannah gcd and brazos valley gcd to specifically address sw-gw interactions in the gam. this jointly funded project clearly shows that proper modeling of sw-gw interactions is a concern and an interest for both river authorities and gcds. acknowledgments the authors would like to thank post oak savannah groundwater conservation district for its encouragement to write the paper and the texas water development board (twdb) for its helpful review. the authors also would like thank house natural resources committee (hnr) chair representative lyle larson, hnr director shannon houston, twdb water and science deputy executive administrator john dupnik, and twdb 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[twdb] texas water development board. 2016b. groundwater availability modeling, twdb information sheet. austin (texas): texas water development board. todd dk. 1955. ground-water flow in relation to a flooding stream. proceedings of the american society of civil engineers. 81(628):1-20. toll n, fratesi b, green r, bertetti p, nunu r. 2017. water-resource management of the devils river watershed, final report. prepared by southwest research institute, san antonio, texas. votteler th. 2017 june 15. texas surface water and whooping crane dispute. the water report. issue 160. p. 1-7. available from: http://www.edwardsaquifer.net/pdf/votteler_twr_160.pdf. votteler th. 1998. the little fish that roared: the endangered species act, state groundwater law, and private property rights collide over the texas edwards aquifer. environmental law. 28(4): 845-879. available from: http://www. edwardsaquifer.net/votteler.html. urs corporation and baer engineering. 2007. monitoring data report from april 2006 to december 2007 for the lswp shallow wells installed in wharton and matagorda counties, texas. prepared for the lower colorado river authority, austin, texas. 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model for the chicot and evangeline aquifers in colorado, wharton, and matagorda counties. austin (texas): urs corporation. young sc, jones t, jigmond m. 2017. field studies and updates to the central carrizo-wilcox, queen city, and sparta gam to improve the quantification of surface water-groundwater interaction in the colorado river basin (final report). prepared for the texas water development board, austin, texas. young sc, jigmond m, jones t, ewing t. 2018. groundwater availability model for the central portion of the sparta, queen city, and the carrizo-wilcox aquifers (final report). prepared for the texas water development board, austin, texas. http://www.edwardsaquifer.net/pdf/votteler_twr_160.pdf http://www.edwardsaquifer.net/pdf/votteler_twr_160.pdf http://www.edwardsaquifer.net/votteler.html http://www.edwardsaquifer.net/votteler.html http://www.ca5.uscourts.gov/opinions/pub/13/13-40317-cv0.pdf http://www.ca5.uscourts.gov/opinions/pub/13/13-40317-cv0.pdf https://water.usgs.gov/gis/metadata/usgswrd/xml/bfi48grd.xml https://water.usgs.gov/gis/metadata/usgswrd/xml/bfi48grd.xml https://doi.org/10.3133/ofr03146 https://doi.org/10.3133/ofr03146 condensing water availability models to focus on specific water management systems texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 1, number 1september 2010 texas water journal inaugural issue desalination and long-haul water transfer as a water supply for dallas, texas climate change impacts on texas water condensing water availability models texaswaterjournal.org editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas water journal volume 1, number 1 inaugural issue september 2010 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas agrilife research, the texas agrilife extension service and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute layout editor leslie lee texas water resources institute website editor jaclyn tech texas water resources institute cover photo: © lynn mcbride texaswaterjournal.org texaswaterjournal.org 20 texas water journal, volume 1, number 1 texas water resources institute texas water journal volume 1, number 1, pages 20-32, september 2010 condensing water availability models to focus on specific water management systems ralph a. wurbs1 and tae jin kim2 abstract: the texas water availability modeling system is routinely applied in administration of the water rights permit system, regional and statewide planning, and an expanding variety of other endeavors. modeling water management in the 23 river basins of the state reflects about 8,000 water right permits and 3,400 reservoirs. datasets are necessarily large and complex to provide the decision-support capabilities for which the modeling system was developed. new modeling features are being added, and the different types of applications are growing. certain applications are enhanced by simplifying the simulation input datasets to focus on particular water management systems. a methodology is presented for developing a condensed dataset for a selected reservoir system that reflects the impacts of all the water rights and accompanying reservoirs removed from the original complete dataset. a set of streamflows is developed that represents flows available to the selected system considering the effects of all the other water rights in the river basin contained in the original complete model input dataset that are not included in the condensed dataset. the methodology is applied to develop a condensed model of the brazos river authority reservoir system based on modifying the texas water availability modeling system dataset for the brazos river basin. key words: reservoirs, rivers, water supply reliability 1professor, zachry department of civil engineering, texas a&m university, college station, texas 77843, r-wurbs@tamu.edu 2senior research associate, texas institute for applied environmental research, tarleton state university, stephenville, texas 76402, kimtae@tiaer.tarleton.edu citation: wurbs ra, kim tj. 2010. condensing water availability models to focus on specific water management systems. texas water journal. 1(1):20-32. available from: https://doi.org/10.21423/twj.v1i1.1380. © 2010 ralph a. wurbs and tae jin kim. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or the twj website. texas water journal, volume 1, number 1 introduction the texas commission on environmental quality (tceq), in collaboration with the texas water management community, maintains a water availability modeling (wam) system used in the administration of the state’s water rights permit system, regional and statewide planning, and other activities (alexander martin and chenoweth 2009). the wam system is routinely applied by applicants in preparation of water right permit applications and by tceq staff in evaluating the applications. the texas water development board (twdb) is the lead agency for regional and statewide planning studies, which represent another major application of the modeling system. river authorities and other water management agencies and their consultants also apply the wam system in other endeavors not directly mandated by either the tceq water rights permitting or twdb planning programs. the wam system supports a broad range of water management activities and contributes to the integration of those activities. modeling capabilities continue to be expanded and the range of applications continues to grow. wam system datasets for the larger river basins are complex with numerous reservoirs, water supply diversions, and instream flow requirements. these large, co mplex models are essential for the water rights permitting applications for which the wam system was originally developed. however, simplification of d atasets is beneficial for ot her applications that focus on a particular water management system while still considering interactions between that system and other water management entities in the river basin. this paper presents a methodology for condensing wam datasets, which has been applied to the brazos river basin (wurbs and kim 2008). the original brazos wam has about 3,750 control points, 670 reservoirs, and 1,700 water rights (hdr engineering 2001). a much easier-to-use condensed https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing https://doi.org/10.21423/twj.v1i1.1380 texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 21 dataset with 48 control points and 15 reservoirs is focused on a reservoir system operated by the brazos river authority (bra) and associated water rights. the effects of the numerous other reservoirs and water rights in the river basin are incorporated in the streamflow inflows at the 48 selected control points while properly maintaining the priority system reflected in the water right permits. the paper begins by describing the tceq wam system, including major new features currently being added as well as basic modeling capabilities that have been routinely applied for several years. the recently developed methodology for condensing input datasets to focus on a particular reservoir system is then presented. the procedure is illustrated by the development and application of a bra condensed dataset. texas water availability modeling (wam) system the tceq wam system consists of the generalized water rights analysis package (wrap) river/reservoir system water management model, wrap hydrology and water rights input files for all of the river basins of texas, geographic information system tools, and other supporting databases (wurbs 2005). the wrap modeling system is generalized for application to river/reservoir systems located anywhere in the world, with input datasets being developed for the particular river basin of concern. for simulation studies in texas, wrap input files from the tceq wam system are altered as appropriate to reflect proposed water management plans of interest, which condensing water availability models to focus on specific water management systems table 1. texas wam system models number of fig. 1 major river basin or period primary total model instream model map coastal basin of control control water flow reserid analysis points points rights rights voirs 1 canadian river basin 1948-98 12 85 56 0 47 2 red river basin 1948-98 47 447 489 103 245 3 sulphur river basin 1940-96 8 83 85 5 53 4 cypress bayou basin 1948-98 10 189 163 1 91 5 rio grande basin 1940-00 55 957 2,584 4 113 6 colorado river basin and brazos-colorado coastal 1940-98 45 2,395 1,922 86 511 7 brazos river and san jacinto-brazos coastal 1940-97 77 3,830 1,634 122 670 8 trinity river basin 1940-96 40 1,334 1,169 23 703 9 neches river basin 1940-96 20 318 333 17 176 10 sabine river basin 1940-98 27 376 310 21 207 11 nueces river basin 1934-96 41 542 373 30 121 12 guadalupe and san antonio river basins 1934-89 46 1,349 860 184 237 13 lavaca river basin 1940-96 7 185 71 30 22 14 san jacinto river basin 1940-96 16 411 148 13 114 15 lower nueces-rio grande 1948-98 16 119 70 6 42 16 upper nueces-rio grande 1948-98 13 81 34 2 22 17 san antonio-nueces 1948-98 9 53 12 2 9 18 lavaca-guadalupe coast 1940-96 2 68 10 0 0 19 colorado-lavaca coastal 1940-96 1 111 27 4 8 20 trinity-san jacinto 1940-96 2 94 24 0 13 21 neches-trinity coastal 1940-96 4 245 138 9 31 texas water journal, volume 1, number 1 22 texas water journal, volume 1, number 1texas water journal, volume 1, number 1 could involve changes in water use or reservoir/river system operating practices, construction of new facilities, or other water management strategies. wam system input datasets the texas legislature authorized development of a water availability modeling system in the comprehensive water management legislation enacted as its 1997 senate bill 1. the tceq and its partner agencies and contractors implemented the wam system during 1997–2003. consulting engineering firms and university researchers under contract with the tceq performed much of the technical work. consulting firms developed wrap input datasets and modeled specified water management scenarios for each of the river basins. the water rights in the datasets are updated by the tceq as applications for new permits or revisions to existing permits are approved. other aspects of the datasets also continue to be refined. the river basin datasets and an array of information regarding the wam system are available at the tceq wam website. the 21 wrap input datasets as of 2008 covering 23 river basins are listed in table 1 (wurbs 2010a). the river basins are delineated in fig. 1. three of the 21 wam datasets combine two river basins, and one basin is divided into two datasets. each dataset includes water rights information in a file with filename extension dat (called a dat file) and hydrology data in streamflow (flo), net reservoir evaporation (eva), and flow distribution (dis) files. authorized use and current use versions of the water rights (dat) files model two alternative scenarios, reflecting different combinations of premises regarding water use, return flows, and reservoir sedimentation. the authorized use scenario water rights input files are based on the following premises: water use targets are the full amounts authorized by the • water right permits. full reuse with no return flow is assumed.• reservoir storage capacities are those specified in the • permits, which typically reflect no sediment accumulation. term permits are not included.• the current use scenario water rights input files are based on the following premises: the water use target for each right is based on the maxi-• mum annual amount used in any year during a selected 10-year period. best estimates of actual return flows are adopted.• reservoir storage capacities and elevation-area-volume • relations for major reservoirs reflect year 2000 conditions of sedimentation. term permits are included.• the tceq applies the authorized use scenario in evaluating regular water right permit applications and the current use scenario in evaluating applications for term permits. the holder of a regular water right permit is entitled to continue to use the water forever, though permits may be cancelled if water is not actually used during a 10-year period. a term permit is issued for a set period, usually ranging from one to 10 years, and is generally based on other water rights holders not using their full permitted amounts. the authorized use versions of the 21 datasets as of january 2008 contained 10,512 water right (wr) records and 662 instream flow (if) records for 11,174 total model water rights representing almost 8,000 water right permits (wurbs 2010a). multiple water rights in the model may represent a single permit. the datasets model the approximately 3,435 reservoirs for which a water right permit has been issued. more than 90% of the total storage capacity of the 3,435 reservoirs is contained in the approximately 210 reservoirs that have conservation capacities exceeding 5,000 acre-feet (ac-ft). the tceq continues to periodically update the datasets. in wrap terminology, water use requirements, water control infrastructure, and reservoir/river system operating strategies are called water rights. required and optional features for defining water use requirements and management practices in a dat file include: locations of system components by control point• priority specifications• water supply diversion, environmental instream flow, • condensing water availability models to focus on specific water management systems fig. 1. texas wam system river basins texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 23 ponents are assigned control point locations. the 21 datasets contain approximately 13,300 control points (table 1). about 500 primary control points, most representing gaging stations, have naturalized flows included in wam system hydrology input files. hydrology input for a wrap simulation consists of sequences of monthly naturalized streamflows at all control points and net evaporation less precipitation rates for all reservoirs for the hydrologic period-of-analysis shown in table 1. primary control points are locations, usually gaging stations, for which naturalized flows are provided in a wrap simulation input flo file. naturalized flows at ungaged secondary control points are computed during a simulation. the model includes several alternative methods for transferring naturalized flows from gaged to ungaged sites. flows may be distributed in proportion to drainage area with or without considering channel losses. sim also includes an option based on the relationship between precipitation and runoff determined by the natural resource conservation service. the wam system datasets include watershed parameters required for these methods in a dis file. water rights analysis package (wrap) wrap simulates water resources development, management, regulation, and use in a river basin or multiple-basin region under a priority-based water allocation system. the model facilitates assessments of hydrologic and institutional water availability and reliability in satisfying requirements for environmental instream flows; municipal, industrial, and agricultural water supply; hydroelectric energy generation; and and hydroelectric energy targets for each of the 12 months of the year and specifications for varying the water use targets as a function of reservoir storage contents or streamflow seasonal or annual limits on diversions, reservoir releas-• es, or flow depletions return flow specifications in various optional formats• conveyance of flow through pipelines and canals• reservoir/river system operating rules including multi-• ple-reservoir system operations, multiple-purpose operations, multiple-owner reservoirs, off-channel storage, and constraints on depleting streamflows reservoir storage volume versus surface area and elevation • relationships several of the river systems shown in fig. 2 are shared with neighboring states. the rio grande is shared with mexico. for the interstate and international river basins, hydrology and water management in neighboring states and mexico are considered to the extent necessary to assess water availability in texas. the models reflect two international treaties and five interstate compacts as well as the two texas water rights systems administered by the tceq. the water rights system allocating the texas share of the waters of the lower rio grande is significantly different from the water rights system for the rest of texas (wurbs 2004). the spatial configuration of a river system is defined in wrap by a set of control points, with the next downstream control point being specified for each control point. all reservoirs, diversions, return flows, hydropower plants, environmental instream flow requirements, and other system comfig. 2. major rivers of texas condensing water availability models to focus on specific water management systems texas water journal, volume 1, number 1 24 texas water journal, volume 1, number 1 reservoir storage. basinwide impacts of water resources development projects and management practices are modeled. the public domain software and documentation (wurbs 2009, 2010a, 2010b, 2010c, and wurbs et al. 2010a) are available at the following website: http://ceprofs.tamu.edu/rwurbs/wrap. htm. wrap computer programs wrap is a set of executable programs developed in fortran. winwrap is a user interface for executing the programs on microcomputers within microsoft windows®. winwrap provides the model-user an environment in which to manage data files and wrap programs and connect with other software. program hyd is a set of routines for converting sequences of monthly gaged streamflows to naturalized flows and compiling sets of monthly net reservoir evaporation less precipitation depths. hyd output consists of hydrology input for sim. recently added hyd features are designed to apply procedures, discussed later, for developing condensed datasets. program sim performs the conventional river/reservoir/use system water allocation simulation using a monthly time step. simd (d for daily) is a recently expanded version of sim with submonthly time step, flow forecasting, routing, and flood control simulation features. program salt reads a sim output file and salinity input file and tracks salt loads and concentrations through a river/reservoir system. program tables organizes the sim, simd, and salt simulation results and develops frequency relationships, reliability indices, and summary statistics. tables organizes simulation results into a variety of user-defined tables and also provides convenient export to microsoft excel® or hec-dssvue (usace 2005). wrap display is an arcgis®-based tool for spatially displaying simulation results (crwr 2007). wrap simulation wrap-sim simulation computations are performed in a water rights priority loop that is embedded within a monthly time-step loop. the wam system input datasets reflect a monthly interval though the new simd also allows a daily or other submonthly computational time step. sim model execution begins with reading and organizing input data. water rights are sorted into priority order based on priority numbers and/or other user-defined options. the simulation steps through time. naturalized flows for primary control points and net evaporation rates for reservoirs are read from the flo and eva files. flows are distributed from primary control points to all other sites based on watershed parameters read from the dis file. within each sequential month, water accounting computations are performed as each set of water use requirements (water right) from the dat file is considered in priority order. water allocation and management are modeled by accounting procedures within the water rights priority sequence. an array is maintained of streamflow available for appropriation at all control points. the following tasks are performed as each water right is considered in priority order: the diversion, instream flow, or hydropower target is set • starting with an annual amount and set of 12 monthly distribution factors provided as input. the target may be further modified as a function of the storage content in any number of specified reservoirs and naturalized, regulated, or unappropriated flow at any control point. the amount of water available to the water right from • streamflow is determined based on the available streamflow array considering the control point of the water right and all downstream control points. water use requirements are met subject to water avail-• ability following specified system operating rules. water accounting computations are performed to determine the diversion, diversion shortage, end-of-month storage, and related quantities. reservoirs and hydropower plants necessitate an iterative algorithm since evaporation and hydropower releases are a function of both beginning-ofmonth and end-of-month storage. the available streamflow array is adjusted for that loca-• tion and all downstream sites to reflect the effects of the water right. channel loss factors are applied in translating adjustments for streamflow depletions and return flows to flows at downstream sites. within the priority sequence, the available flow array is used to determine the amount of water available to each individual right. at the end of the month, the available flow array is used to determine regulated and unappropriated flows. simulation results consist of time series of the variables computed in the simulation covering the period-of-analysis. the model-user selects the control points, water rights, and reservoirs for which simulation results are recorded. variables written to the main output file include but are not limited to naturalized, regulated, and unappropriated flows, • streamflow depletions, and return flows for each selected control point channel losses and channel loss credits for each selected • control point representing the reach below the control point storage, net evaporation, inflows, releases, diversions, • and hydroelectric energy at each selected reservoir diversion targets and shortages, return flows, available • streamflows, streamflow depletions, and storage for each selected water supply right hydropower targets, firm energy produced, secondary • energy produced, energy shortages, and storage for each condensing water availability models to focus on specific water management systems texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 25condensing water availability models to focus on specific water management systems selected hydroelectric power right instream flow target and shortage for each selected • instream flow right wrap includes the post-simulation program tables that organizes simulation results in various user-specified formats, including time series of selected variables, water budgets, statistical summaries, and various types of frequency relationships, statistics, and reliability indices. tables may be created in a format for incorporation in reports. alternatively, data may be organized in formats convenient for export to microsoft excel or hec-dssvue. forms of streamflow in wrap the wrap modeling process consists of a series of adjustments to streamflow sequences covering the hydrologic periodof-analysis. the texas wam system reflects simulation periods that range from 50 to 60 years for the various river basins listed in table 1 and a monthly time step. the procedure for converting a wam dataset to a condensed dataset adds another set of flow adjustments. in a condensed dataset, an adjusted set of inflows replaces the naturalized flows described below. the distinction between regulated and unappropriated flow is important in the development and application of condensed datasets. a wrap-sim simulation begins with naturalized flows. in general, the terms naturalized or unregulated refer to sequences of past streamflows adjusted to represent a specified condition of river basin development that includes either no human impact or some defined level of development. for the texas wam system, naturalized flows ideally are river flows that would have occurred historically, in the absence of the water management activities reflected in the water rights input data, but with all other aspects of the river basin reflecting constant present conditions. regulated and unappropriated flows computed by sim reflect adjustments to naturalized flows for water right requirements representing a specified scenario of water resources development and use. regulated flows are physical flows considering all water rights in the input dataset. unappropriated flows are available for further appropriation after all the water rights receive their allocated share. regulated flow in a particular month at a particular control point is never less than the corresponding unappropriated flow but may be greater than the unappropriated flow due to instream flow requirements at the site or commitments to other water rights at downstream control points. the adjustments that convert naturalized flows to regulated flows include both streamflow depletions and return flows. streamflow depletions are the quantities of water appropriated to meet water supply diversion requirements and refill reservoir storage. return flows are added back to streamflows. channel losses are considered as sim streamflow adjustments are cascaded downstream. new wrap modeling capabilities the wrap modeling capabilities that are routinely applied with the tceq wam system consist of using a hydrologic period-of-analysis of about 50 to 60 years and a monthly computational time step to perform water availability and reliability analyses for municipal, industrial, and agricultural water supply; environmental instream flow; hydroelectric power generation; and reservoir storage requirements. the modeling capabilities currently being routinely applied are documented by wurbs (2010a, 2010b, and 2010c). work has been underway for several years on the following new and expanded wrap modeling capabilities that are becoming operational during 2009 and 2010 (wurbs 2009, wurbs et al. 2010a): features incorporated in the wrap programs hyd and • sim for developing and applying condensed datasets as described by this paper features incorporated in hyd for extending the hydro-• logic period-of-analysis short-term conditional reliability modeling, which pro-• vides estimates of the likelihood of meeting water right requirements and maintaining reservoir storage levels during time periods of one month to several months to a year or perhaps longer into the future, given preceding reservoir storage contents daily time-step modeling capabilities that include flow • forecasting, flow routing methods, disaggregation of monthly water supply and instream flow targets to daily targets, and disaggregation of monthly naturalized flows to daily flows simulation of flood control reservoir system operations• salinity simulation motivated by natural salt pollution • in several texas river basins methodology for developing a condensed dataset wurbs and kim (2008) document the development and application of procedures for (1) extending wam datasets to cover a longer hydrologic period-of-analysis and (2) condensing wam datasets to focus on a particular water management system while reflecting the effects of all other water rights in the streamflow inflows. both of these two very different tasks are based on new features in which the program hyd develops a program sim streamflow input file based on sim simulation results. the procedures were applied to the wrap input dataset for the brazos river basin from the tceq wam system. the modeling methods developed are applicable to other river texas water journal, volume 1, number 1 26 texas water journal, volume 1, number 1 basins as well. the wam system datasets for the larger river basins listed in table 1 contain hundreds of water rights, control points, and reservoirs. these voluminous datasets are necessary to support administration of the water rights permit system by the tceq and planning studies conducted by the twdb and regional planning groups. the datasets are necessarily complex to serve the original purposes for which the wam system was developed. however, the modeling system is being used in an expanding range of different types of applications. condensed datasets are advantageous for certain types of applications. a methodology is presented by wurbs and kim (2008) for simplifying wam system datasets to focus on management of a particular river/reservoir system. selected water rights, control points, and reservoirs are removed with their effects retained in the adopted stream inflow input data for the condensed dataset. a much simpler dataset is developed for purposes of studying or providing decision support for a particular reservoir/river water management system. wrap input datasets and corresponding simulation results with dramatically fewer control points, water rights, and reservoirs are much more manageable to use in modeling studies. however, the interactions between numerous water users and water control facilities in a river basin should be preserved in the model. the condensed model allows alternative operating plans for the primary water management system to be simulated based on the premise of assuring appropriate protection of all other water rights. development of a condensed dataset serves two purposes. firstly, the condensed dataset is much easier to apply in certain types of studies focused on a particular water management entity. secondly, the entity of interest can be segregated and managed in various ways in the wrap-sim simulation model while allowing the entity access to only river flows legally available to it considering all other water right permit holders in the river basin. the accuracy achieved in the development of a condensed dataset is checked by comparing sim simulation results with the condensed versus original complete dataset. the water supply reliabilities computed for the diversions included in the condensed model should be the same as in the simulation with the original complete dataset. likewise, the sequences of monthly storage volumes at the common reservoirs and unappropriated streamflows at the common control points will be the same. near perfect correspondence between simulation results with the condensed versus complete datasets should be expected. the selected water rights and reservoirs from the complete tceq wam system dat file that are retained in the condensed dat file are called the primary system. after creating a condensed dataset, comparing complete tceq wam system versus condensed model simulation results for the primary system reservoirs and water rights requires minimal time and effort. verifying the condensed dataset is easy and precise. after the development and verification of the condensed wrap input dataset, then applications of the condensed model may include any number of alternative simulations that reflect different water demands, modified reservoir system operating plans, and other changes in water management strategies associated with the primary system. water rights (dat) and hydrology (flo and eva) files a condensed wrap-sim input dataset (dat, flo, and eva files) is created by reducing the number of control points, water rights, and reservoirs in a tceq wam system dataset and thus simplifying the modeling system for certain applications. a sim water rights dat file for the particular river/reservoir water management and use system of interest, called the primary system, is developed along with a flo file containing river system inflows that have been adjusted to reflect all other water rights in the original complete wam dataset, which are referred to as secondary water rights. the effects of the water rights, control points, and reservoirs that are removed from the original wam dat file are maintained in the stream inflow input data (flo file) for the condensed dataset. the condensed dataset also includes an eva file containing the same net reservoir evaporation-precipitation rates as used with the complete wam dataset with the same adjustments. the methodology for creating a condensed wrap input dataset from a tceq wam system dataset is based on developing flows at selected control points that represent stream inflow amounts available to the selected primary system. these river flows recorded in the condensed dataset flo file represent flows available to the primary system modeled in the water right dat file considering the effects of all the other water rights in the river basin contained in the original complete dat file that are not included in the condensed dat file. the river system inflows in the flo file for a condensed dataset include streamflow depletions made for the selected water rights less return flows plus unappropriated flows. hydropower releases and reservoir releases made specifically to meet instream flow requirements are also properly incorporated in the flows. summation and cascading operations, including channel losses, are applied in developing the flo input file. the primary system in the condensed dat file has access only to the flows in the condensed flo file, which consist of the monthly streamflows that the primary system appropriated in the complete tceq wam system model plus unapprocondensing water availability models to focus on specific water management systems texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 27 the sequences of monthly water supply diversions, reservoir storage contents, unappropriated flows, and other pertinent variables contained in the sim simulation results associated with the primary system reservoirs, diversions, and control points. these sim simulation results should be same with the condensed dataset versus the original complete dataset. the primary system reservoirs and diversions must be operated the same in both the condensed and complete datasets for the comparison simulations. after completing the comparison to confirm that the dataset is correct, the condensed dataset can be used to simulate alternative river/reservoir system operating rules and water management and use scenarios for the primary system. regulated-unappropriated flow (ruf) file with the exception of naturalized and regulated flows, all the variables in the sim input and simulation results are defined the same in condensed and complete models. however, the regulated flows computed by sim are defined differently. the optional ruf file described below is needed only for those applications in which knowing the actual regulated flows is important. the unappropriated streamflows computed by sim are the priated flows. thus, all reservoir storage, water supply diversions, return flows, instream flow requirements, subordination agreements, and other water allocation, control, management, and use associated with the secondary system are reflected in the streamflows incorporated in the flo file of the condensed dataset. the methodology for developing the sequences of monthly streamflow volumes and net evaporation-precipitation depths (flo and eva files) for a condensed dataset is outlined as follows: the wrap simulation program sim is executed with 1. the original complete dataset. program hyd is used to retrieve the adjusted net 2. evaporation-precipitation depths from the sim output file and store them in an eva file for the condensed dataset. hyd is applied to read streamflow depletions, return 3. flows, unappropriated flows, and other pertinent variables from the sim output file and combine these variables as required to develop the streamflow flo file for the condensed dataset. combining the time sequences of flow volumes includes summations and cascading operations that may include channel losses. the accuracy of the procedure is confirmed by reproducing condensing water availability models to focus on specific water management systems 0 1000000 2000000 3000000 4000000 5000000 6000000 7000000 8000000 19 00 19 10 19 20 19 30 19 40 19 50 19 60 19 70 19 80 19 90 20 00 n at u ra li ze d f lo w ( ac re -f ee t/ m on th ) fig. 3. naturalized flows at the richmond gage on the brazos river texas water journal, volume 1, number 1 28 texas water journal, volume 1, number 1 ruf file feature is complicated by the differences between regulated and unappropriated flows being caused by both secondary (flo file) and primary system (dat file) water rights. the ruf file feature is necessarily approximate in certain situations because of the combined effects of secondary and primary water rights on river flows. sim includes a set of options for creating and applying the ruf file adjustments in different situations. condensed wrap input dataset a condensed dataset consists of required dat, flo, and eva files and an optional ruf file. the dat file contains the information that describes the primary system water rights including reservoirs, water supply diversions, return flows, instream flow requirements, and other features of water rights. the dat file water rights may be modified in various ways during studies that apply the condensed dataset. however, only the streamflows recorded in the flo file are available to the primary system described in the dat file. the optional ruf file contains adjustments used by sim to estimate regulated flows based on simulated unappropriated flows. reservoir surface net evaporation less evaporation rates are contained in the eva file. brazos river authority system condensed model the bra sponsored development of the brazos river authority condensed (brac) datasets designed to provide a much simpler model that facilitates operational planning studies and other decision support endeavors for the bra reservoir system (wurbs and kim 2008). alternative versions of the brac model were developed for the authorized use and current use scenarios with hydrologic periods-of-analysis of 1900–2007 and 1940–2007 by condensing the tceq wam system authorized use and current use datasets for the brazos river basin and san jacinto-brazos coastal basin, referred condensing water availability models to focus on specific water management systems same with either a condensed or a complete wam input dataset. however, the naturalized and regulated flows are defined differently. the streamflows in the flo file of the original wam dataset are naturalized flows. however, the streamflows in the flo file of the condensed dataset are flows reflecting the effects of all of the water rights in the river basin that are not included in the dat file of the condensed dataset. with a complete dataset, the regulated flows computed by sim represent the actual flows at a site on a river. with a condensed input dataset, the regulated flows computed by sim represent the flows that remain unaffected by the water rights omitted from the dat file. the basic condensed dataset methodology focuses on unappropriated river flows rather than regulated flows. however, a regulated-unappropriated flow (ruf) file with filename extension ruf may be created using program hyd. a ruf file contains deviations between regulated and unappropriated flows from the simulation results for the original dataset that are used within a sim simulation with a condensed dataset to estimate regulated flows based on adjusting unappropriated flows. the ruf file and accompanying flow adjustment options are not needed in various applications in which regulated flows are not of concern. however, the estimates of regulated flows provided by the ruf options may be required in applications for which environmental instream flow requirements or flood control operations are included in the condensed dat file. a ruf file is not necessarily required if all instream flow requirements and flood control operations are associated with only the secondary system. salinity simulations require a ruf file. also, a ruf file may be useful simply to provide general information regarding river flows. the regulated-unappropriated flow ruf file contains the differences between the regulated flows less unappropriated flows from the simulation results of the original complete dataset. these data are used to perform flow adjustments that allow conventionally defined regulated flows to be included in the sim simulation results for the condensed dataset. incorporation of regulated flows, as normally defined in wrap-sim simulations, into a condensed model using the table 2. size of brazos wam and condensed datasets complete wam versus condensed brazos wam condensed water use scenario authorized current authorized current number of primary control points 77 77 48 48 number of secondary control points 3,753 3,757 0 0 number of wr record water rights 1,634 1,725 114 112 number of instream flow rights 122 144 0 0 number of reservoirs 670 711 15 14 texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 29 to here as the brazos wam. the brazos wam has a hydrologic period-of-analysis of 1940–1997, which was extended to 1900–2007 by wurbs and kim (2008). the 1900–2007 monthly naturalized flows at the u.s. geological survey (usgs) gaging station on the lower brazos river near richmond are plotted in fig. 3. the condensed datasets are useful for a broad spectrum of different types of wrap-based studies and decision-support activities. for example, wurbs and lee (2009) applied the brac datasets in a study of the effects of natural salt pollution in the brazos river basin. unlike the application noted below, the salinity study required the use of the ruf file. the bra is currently sponsoring conditional reliability modeling studies that use the brac datasets to develop storage frequency statistics for individual reservoirs and groups of reservoirs for storage at various times over the period of a year, given specified initial preceding storage levels (wurbs et al. 2010b). one of the several variations of the model used in these analyses consists of a version of the brac dataset described as follows. the brac dat file developed based on the tceq wam system current use scenario dataset is further adjusted to reflect actual water use and system operations during the relatively dry year 2008. the resulting dat file is combined with condensed flo and eva files developed from the tceq wam system authorized use scenario dataset. thus, the primary system is operated based on year 2008 water demands based on the premise that all water rights included in the secondary system appropriates the full amounts authorized in their water right permits. with the focus on developing storage statistics, the ruf file was not needed for this particular application. brazos river basin the 45,600-square-mile brazos river basin extends from new mexico southeasterly across texas to the gulf of mexico as shown in fig.s 1 and 2. the upper extreme end of the basin in and near new mexico is an arid flat region that rarely contributes to streamflow. climate, vegetation, topography, land use, and water use vary greatly across the basin. mean annual precipitation varies from 16 inches in the upper basin in the high plains to over 50 inches in the lower basin in the gulf coast region. more than 1,000 water districts, cities, companies, and individuals hold water right permits to use the waters of the brazos river and its tributaries. based on the brazos wam, water rights associated with the 13 reservoirs shown in fig. 4 account for 74% of the conservation storage capacity of the 711 permitted reservoirs and 33% of the permitted annual water supply diversion volume in the basin. the bra owns and operates possum kingdom, granbury, and limestone reservoirs and has contracted with the u.s. army corps of engineers for the conservation storage capacity of nine federal multiple-purpose reservoirs. a significant portion of the water diverted from the brazos river is actually used in the adjoining san jacinto-brazos coastal between the city of houston and galveston bay. brazos river authority condensed (brac) datasets the large complex brazos wam dataset is necessary for the planning and water right permitting applications for which the wam system was developed. however, a much simpler model focused on the bra reservoir system facilitates bra operational planning studies. wurbs and kim (2008) developed and applied a methodology for simplifying wam system datasets to focus on management of a particular reservoir system. selected water rights, control points, and reservoirs are removed with their effects retained in the adopted stream inflow input data file for the condensed dataset. the brac datasets developed based on modifying the brazos wam authorized use scenario and current use scenario datasets contain 48 primary control points and no secondary control points. brac authorized use and current use scenario datasets contain 15 and 14 reservoirs, respectively, with a permitted but not constructed project included in the authorized but not the current scenario. the stream inflows at the 48 control points reflect the effects of the numerous water rights, reservoirs, and control points removed from the brazos wam dataset. the relative size of the brazos wam versus brac datacondensing water availability models to focus on specific water management systems fig. 4. brazos river basin texas water journal, volume 1, number 1 30 texas water journal, volume 1, number 1 sets is compared in table 2. the brazos wam authorized use scenario dataset contained 1,634 water right wr records, 122 instream flow records, 670 reservoirs, and 3,830 control points, as of 2009. the brazos wam current use dataset is slightly larger. naturalized flows are input in a flo file for 77 primary control points and distributed within sim to the other ungaged secondary control points as specified by 3,138 flow distribution records in a dis file. the condensed datasets designed to focus on operation of the bra reservoir system include the 15 largest reservoirs in the river basin and associated water rights (wurbs and kim 2008). the 15 reservoirs include one proposed (allen’s creek reservoir), 12 existing bra reservoirs, and two other reservoirs (hubbard creek and squaw creek reservoirs). the proposed allen’s creek reservoir is included in the authorized use scenario but is not included in the current use scenario. the 12 bra reservoirs shown in fig. 4 include possum kingdom, granbury, and limestone reservoirs owned by the bra and nine federal multiple-purpose reservoirs owned by the u.s. army corps of engineers for which the bra has contracted for the water supply storage capacity. the condensed dataset has 48 primary control points and no secondary control points. with no secondary control points, there is no flow distribution dis file. the impacts of the 655 reservoirs and numerous water rights removed from the brazos wam dataset are reflected in the flo file river flows developed for the condensed sim input dataset. the condensed datasets were developed using the wrap programs sim and hyd as outlined earlier in this paper. the resulting brac datasets consist of sim input files with filename extensions dat, flo, eva, and ruf. four versions of the condensed datasets were initially developed representing authorized use and current use scenarios of water resources development and management and 1900–2007 and 1940– 2007 hydrologic periods-of-analysis. the condensed dataset dat files continue to be modified for particular studies as previously noted. the sim input files comprising the basic condensed datasets are described as follows: the authorized use and current use dat files contain • water rights and related information for 15 and 14 reservoirs, respectively, and associated water supply diversions. this information was excerpted from the brazos wam dat files. all but 48 of the original 3,800 control point records are omitted. thus, the next downstream control point identifiers and channel loss factors are modified for the adopted 48 control points. flo files with alternative 1940–2007 and 1900–2007 • sets of monthly flows at 48 control points represent conditions of river system development that include all of the water rights and associated reservoirs in the original complete brazos wam dat files except the 15 reservoirs and associated diversions contained in the condensed dat files. eva files contain alternative 1940–2007 and 1900–• 2007 sets of monthly net evaporation-precipitation depths for the 15 reservoirs. adjusted net evaporationprecipitation depths are obtained from the sim output out file. ruf files contain alternative 1940–2007 and 1900–• 2007 sets of differences between the regulated flows less unappropriated flows from the sim output file for complete brazos wam simulation. the optional ruf files allow conventionally defined regulated flows to be included in the brac simulation results. the dat files for the condensed datasets are developed by excerpting pertinent water rights and associated data records from the original dat file, excerpting pertinent records providing reservoir data, and modifying remaining control point records to reflect removal of many of the control points. with removal of control points, channel loss factors for the stream reaches removed are aggregated for the combined longer reaches between the remaining control points. various other organizational refinements have no effect on simulation results. a number of the water rights included in the brac datasets have diversion return flows that are returned back to the river in the brazos wam dataset at control points that have been removed in the brac datasets. the return flows are returned in the brac dataset at the next downstream control point that was not removed. channel losses associated with the return flows may be affected. the decrease in channel loss could be offset by increasing the return flow factor. however, this ploy was not applied for the brazos since the impacts on channel losses of reassigning return flow locations were negligible. the condensed dataset should adopt the same net evaporation-precipitation depths for the 15 reservoirs as used in the original complete dataset sim simulation. sim includes a routine for adjusting net evaporation-precipitation depths for the precipitation runoff from the portion of the watershed inundated by the reservoir. therefore, net evaporation-precipitation depths are obtained from the output file for the complete simulation rather than using the original evaporationprecipitation depth input dataset. river flows developed for the 48 brac control points consist of 1940–2007 or 1900–2007 sequences of monthly volumes of the following variables obtained from the simulation results output file created by sim with the original complete input dataset. the computations are performed with hyd. streamflow depletions made by each of the water rights • associated with the 15 reservoirs are included in the flows being developed. these flow volumes are placed at the control point of the streamflow depletion and at all downstream control points. channel losses are concondensing water availability models to focus on specific water management systems texas water journal, volume 1, number 1 texas water journal, volume 1, number 1 31 sidered in cascading the streamflow depletions downstream. return flows from the diversion component of the • streamflow depletions are subtracted from the flows. these flow volumes are placed at the control point at which the return flow is returned to the stream and at all downstream control points. channel losses are considered in cascading the return flows downstream. unappropriated flows at each of the control points • are added to the flows. since unappropriated flows are cumulative total flows, these flows are not cascaded downstream. any releases from the 15 selected reservoirs made spe-• cifically for instream flow requirements are subtracted at the control point of the reservoir and cascaded downstream in the normal manner, which includes consideration of channel losses. the brac inflows are the portion of the naturalized flows still available to the primary system water rights after the secondary water rights have appropriated their appropriate quantities of the streamflow. naturalized flows are the same in the authorized use and current use scenario versions of the complete wam dataset but differ in the condensed datasets. the 1940–1997 means are compared in table 3 for three of the gaging station locations shown in fig. 4. the 1940–1997 means of the brazos wam naturalized flows at the three control points are tabulated in ac-ft/yr. the corresponding 1940– 1997 means of the inflows in the flo files of the condensed inflows are shown in table 3 as a percentage of the brazos wam naturalized flows. at the richmond gage control point, the mean flo file inflows for the authorized use and current use scenarios are 77.8% and 78.2% of naturalized flows. summary and conclusions the tceq water availability modeling (wam) system has significantly contributed to water management in texas over the past several years. capabilities are provided for assessing institutional as well as hydrologic water availability and supply reliability. the modeling system supports preparation and evaluation of water right permit applications, regional and statewide planning studies, and various other water management activities. the primary reason for developing condensed datasets is to provide a much simpler model that can be conveniently and effectively applied in studies dealing with a particular river/ reservoir water management system. condensed datasets also provide a mechanism for allocating water between a primary system of concern and all of the other water rights in the river basin that can be useful in certain types of modeling applications. the control points, reservoirs, and water rights included in a condensed dataset are called the primary system. the control points, reservoirs, and water rights that are not included in the primary system comprise the secondary system. the effects of all secondary water rights on river flows available to primary water rights are reflected in the inflow streamflows. the inflows provided in the flow input file of a wam system dataset are naturalized flows. the inflows contained in the flow file of a condensed dataset represent the river flows available to the primary system considering all the other secondary water rights. references alexander martin k and chenoweth t. 2009. determining surface water availability. in: sahs mk, editor. essentials of texas water resources. austin: state bar of texas, texasbarbooks department. p. 213-222. [crwr] center for research in water resources (tx). 2007. wrap display tool, users manual and operating instructions. prepared for the texas commission on environmental quality, university of texas at austin, austin, texas. hdr engineering, inc. 2001. water availability in the brazos river basin and the san jacinto-brazos coastal basin prepared for texas natural resource conservation commission, austin, texas. wurbs ra. 2004. water allocation systems in texas. international journal of water resources development. 20(2):229-242. brazos condensed datasets usgs gaging station wam authorized current use (ac-ft/yr) cameron gage on little river 1,318,302 81.5% 83.9% waco gage on brazos river 1,942,324 85.6% 87.5% richmond gage on brazos river 5,850,224 77.8% 78.2% table 3. comparison of means of flows in flo input condensing water availability models to focus on specific water management systems texas water journal, volume 1, number 1 32 wurbs ra. 2005. texas water availability modeling system. journal of water resources planning and management. 13(2):270-279. wurbs ra. 2009. salinity simulation with wrap. college station: texas a&m university system, texas water resources institute. technical report-317. 84 p. wurbs ra. 2010a. reference manual for the water rights analysis package (wrap) modeling system. 7th ed. college station: texas a&m university system, texas water resources institute. technical report-255. 320 p. wurbs ra. 2010b. users manual for the water rights analysis package (wrap) modeling system. 7th ed. college station: texas a&m university system, texas water resources institute. technical report-256. 207 p. wurbs ra. 2010c. fundamentals of water availability modeling with wrap. 5th ed. college station: texas a&m university system, texas water resources institute. technical report-283. 99 p. wurbs ra. hoffpauir rj, olmos, he, salazar aa, kim tj, and schnier st. (2010a). conditional reliability, submonthly time step, and flood control features of wrap. college station: texas a&m university system, texas water resources institute. technical report-284. 242 p. wurbs ra, hoffpauir rj, and schnier st. (2010b). application of expanded wrap modeling capabilities to the brazos wam. college station: texas a&m university system, texas water resources institute. technical report-389. wurbs ra, kim tj. 2008. extending and condensing the brazos river basin water availability model. college station: texas a&m university system, texas water resources institute. technical report 340. 493 p. wurbs ra, lee ch. 2009. salinity budget and wrap salinity simulation studies of the brazos river/reservoir system. college station: texas a&m university system, texas water resources institute. technical report-352. 327 p. [usace] u.s. army corps of engineers. 2005. hec-dssvue hec data storage system visual utility engine, user’s manual. cpd-79, davis (ca): hydrologic engineering center. 490 p. condensing water availability models to focus on specific water management systems 2010 vol1num1cover final 2010 vol1num1 water availability models final 2010 vol1num1cover final 2010 vol1num1 water availability models final groundwater use in the eagle ford shale: some policy recommendations texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 6 number 1 2015 texas water journal http://texaswaterjournal.org volume 6, number 1 2015 issn 2160-5319 texas water journal editorial board todd h. votteler, ph.d. editor-in-chief guadalupe-blanco river authority kathy a. alexander, ph.d. robert l. gulley, ph.d. texas comptroller of public accounts robert e. mace, ph.d. texas water development board ken a. rainwater, ph.d. texas tech university ralph a. wurbs, ph.d. texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: anzelduas dam in hidalgo county. photo courtesy of the texas water development board. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 6, number 1, pages 67–78 abstract: advances in hydraulic fracturing (fracking) and horizontal drilling have allowed oil and gas companies to tap into texas’ previously inaccessible shale reserves. fracking in the state has grown at an exponential rate and is not expected to decline until 2025. fracking requires the consumption of vast amounts of groundwater, a resource that is already strained. this study quantifies the water consumption associated with fracking in the eagle ford shale, evaluates the current regulatory framework, and proposes 3 policy recommendations. the data show that fracking has become the primary consumer of groundwater in the most active counties within the eagle ford. our study proposes 3 policy solutions to ensure that groundwater is consumed in an economically efficient manner in these areas. these solutions are a more thorough system for reporting consumption, tax incentives for oil and gas companies to use substitutes for fresh groundwater, and an alternative property rights system to the current rule of capture system. keywords: hydraulic fracturing, policy recommendations, groundwater, fracking incentives, groundwater bank accounts maxwell steadman*, benton arnett, kevin healy, zhongnan jiang, david leclere, leslie mclaughlin, joey roberts1 groundwater use in the eagle ford shale: some policy recommendations 1all authors are graduates of texas a&m university’s bush school of government and public service, class of 2014 *corresponding author: msteadman7@gmail.com texas water journal, volume 6, number 1 citation: steadman m, arnett b, healy k, jiang z, david leclere, leslie mclaughlin, roberts j. 2015. groundwater use in the eagle ford shale: some policy recommendations. texas water journal. 6(1):67-78. available from: https://doi.org/10.21423/twj.v6i1.7023. © 2015 maxwell philipp steadman, benton arnett, kevin healy, zhongnan jiang, david leclere, leslie mclaughlin, joey roberts. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https:// creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v6i1.7023 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 6, number 1 groundwater use in the eagle ford shale68 terms used in paper short name or acronym descriptive name dfc(s) desired future condition(s) gcd(s) groundwater conservation district(s) mag(s) modeled available groundwater(s) rrc railroad commission of texas twdb texas water development board uwcd underground water conservation district introduction the proliferation of hydraulic fracturing (fracking) has allowed oil and gas companies to tap into the united states’ vast and previously inaccessible shale resources. in just a few years, fracking for shale resources has transformed the energy landscape within the united states, placing the country on a path toward increased energy security. nowhere has the growth been more profound than in the eagle ford shale. as shown in figure 1, the eagle ford shale formation extends beneath 30 texas counties, stretching from brazos county (bryan/college station) to webb county (laredo). according to the railroad commission of texas (rrc), “the eagle ford shale is considered one of the top-producing shale plays in north america, serving as the second largest tight oil play and ranking fifth in terms of shale gas production (rrc figure 1. map of the eagle ford shale oil, gas and condensate play (eia 2011). texas water journal, volume 6, number 1 69groundwater use in the eagle ford shale 2013).” what is perhaps most remarkable about oil and gas production in the eagle ford shale is not only the phenomenal rate at which production continues to increase but also the short period of time in which the eagle ford has been under development. the area’s first well wasn’t drilled until 2008, but by 2012 there were 1,260 oil-producing wells and 875 gas-producing wells within the eagle ford (rrc 2013). the large production growth seen in the eagle ford to date only represents a fraction of the potential production that could occur in the region. if gas prices rise and oil prices remain above $80 per barrel, then this rapid growth can be expected to continue. with january 2015 oil prices hovering near $50 per barrel, these lower prices will obviously slow the development of this area. ultimately, prices are likely to rise again, meaning this development has simply been shifted forward into the future. a typical fracking well in the eagle ford is estimated to consume about 13 acre-feet of water for a standard 5,000-foot lateral (arnett et al. 2014). approximately 90% of water for fracking comes from fresh groundwater aquifers (arnett et al. 2014). at this point there has been no study to critically analyze the current state of water use for fracking operations versus other water uses within the eagle ford nor has there been any assessment of policy alternatives to the status quo. using statistics and economics, this paper quantifies the relative importance of fresh groundwater use for fracking in the eagle ford counties and contrasts these with other uses. next, we briefly describe the existing regulatory framework within which fresh groundwater is consumed. finally, this paper concludes with 3 policy recommendations. piecing together groundwater use and recharge estimates through our research, we identified several potential issues with current groundwater trends in the eagle ford. the following sections show the relationship of water to recharge rates for the entire eagle ford and the groundwater usage in the 7 most active counties in terms of drilling activity in the play. to determine water use by industry, we used water-use data from the texas water development board (twdb) (twdb 2015) for municipal, mining, irrigation, manufacturing, livestock, and power-generation sources. we combined power, manufacturing, and livestock into one category, which is listed as other, since these sources are typically minor in these counties. under twdb nomenclature, mining is essentially all oil and gas consumption. unfortunately, its data for mining makes no attempt to measure water consumption for fracking. thus, we replaced the twdb mining estimate with oil and gas by relying on data reported to the rrc. after estimating the total water used for fracking in the eagle ford over the 4-year period, we assumed 90% of that water came from fresh groundwater, with the bulk coming from the carrizo-wilcox, sparta, and queen city aquifers (industry interview 2014). because of the semi-arid nature of the area, surface water supplies are quite limited, explaining the reliance on groundwater (scanlon et al. 2014). the following 21 counties were used in this analysis: atascosa, bee, brazos, burleson, dewitt, dimmit, fayette, frio, gonzales, grimes, karnes, la salle, lavaca, lee, live oak, madison, maverick, mcmullen, webb, wilson, and zavala. each groundwater conservation district (gcd) publishes a water management plan, which includes annual recharge rates for each aquifer within the gcd. we totaled these rates to get the total annual recharge rate for the gcd and then aggregated across counties. this is represented in figure 2 by the line labeled “recharge estimate.” it is important to realize that in confined aquifers, the recharge rate will be small, so usage will, often by necessity, exceed the recharge rate. furthermore, much of the oil and gas activity in the eagle ford appears to be concentrated in the confined portion of the carrizo-wilcox aquifer (scanlon et al. 2014). the gcd management plans used in this paper came from bee gcd (2012), bluebonnet gcd (2013), brazos valley gcd (2010), evergreen uwcd (2011), fayette county gcd (2013), gonzales county uwcd (2014), lost pines gcd (2012), mcmullen county gcd (2008), mid-east texas gcd (2009), pecan valley gcd (2009), post oak savannah gcd (2012), and wintergarden gcd (2011). the most up-to-date management plans available at the time of this article were used. more than 500,000 acre-feet per year of fresh groundwater are used annually within the study area (twdb 2015). this was calculated by totaling the twdb historical use estimates for counties in the eagle ford shale region. this use level exceeds the estimated recharge rate for counties in the play by more than 300,000 acre-feet per year. the aquifers in this area are being drawn down at about 2.5 times their estimated average recharge rates. as shown in figure 2, groundwater used for fracking operations has been increasing every year since 2010 and now makes up the third largest use of groundwater in the area (64,000 acre-feet per year or 12.5%). despite the growth in this sector, irrigation still makes up more than half of all groundwater used in the study area, reflecting the rural nature of these counties. the amount of groundwater being used for irrigation alone exceeds the recharge rate by more than 50%. the development of hydraulic fracturing activities within the eagle ford is still relatively recent, and further development is just a matter of time, price, and technology. if natural gas prices rise and oil prices return to 2014 levels, we can expect fracking operations to use an increasing amount of the texas water journal, volume 6, number 1 groundwater use in the eagle ford shale70 region’s groundwater. to show how drilling could increase in the less-developed counties in the future, figure 3 shows groundwater usage by sector for the top 7 counties in terms of drilling activity in the eagle ford: dewitt, dimmit, gonzales, karnes, la salle, mcmullen, and webb. in 2013, these 7 counties accounted for 84.6% of the wells drilled in the eagle ford. in figure 3, the aggregation of counties shows the magnitude figure 3. groundwater use and recharge in acre-feet for the 7 most active counties in terms of drilling activity in the eagle ford shale. figure 2. total eagle ford groundwater use and recharge in acre-feet. texas water journal, volume 6, number 1 71groundwater use in the eagle ford shale and speed at which fracking has grown in the area. in 2010, fracking was a minor user of groundwater. however, in just 4 years it has become the second highest user of fresh groundwater and currently makes up 30% of total consumption. by 2013, total consumption exceeded the average estimated recharge by 3.8 times. the rapid growth in drilling activity in these counties demonstrates the difficulty of predicting the growth of groundwater use for fracking operations and the potential to see rapid growth in other eagle ford counties under the right conditions. as mentioned earlier, the eagle ford is still relatively young in its development despite the large growth already seen in the region. table 1 shows the total freshwater used for fracking from 2010 to 2013 compared to the potential water needed to fully develop the estimated potential reserves of the eagle ford based on an estimated 13.6 billion barrels of oil and 119 trillion cubic feet of natural gas (ari 2013). table 1 outlines the assumptions used to estimate future groundwater requirements assuming the status quo. these numbers should be used as a general reference and not an exact forecast due to the many factors that affect the eagle ford’s development. these figures assume that oil and gas prices will eventually rise to a point where all of the proved reserve oil and gas in the eagle ford are economic to produce. these assumptions are made without a time frame restriction on drilling. we also assume that water consumption per well and the percentage of water from fresh groundwater will remain constant in the future. as explained later, unless there are policy changes, these assumptions appear to be realistic. under these assumptions, past usage is only 6.7% of the total fresh groundwater that will be eventually needed, and future usage could require an additional 1.35 million acre-feet for fracking. but, is this realistic given the rapid technological changes in this industry? much of the analysis of water use for fracking within the eagle ford shale, and across the state of texas, has relied on data from the oil and gas water use in texas: update to the 2011 mining water use report (nicot et al. 2012). this report indicates that over time technological improvements would allow the industry to drastically curtail its use of all water, including fresh groundwater for fracking operations. for some areas in texas this may be true; however, our analysis concluded, at least in the eagle ford, this is not likely to be the case. in studying the rate of water use within the eagle ford over a 4-year period (2010–2013), it became apparent that, on a per-well basis, water use for fracking operations had indeed decreased, particularly in 2011 and 2012. however, by 2013 we did not observe any additional water-saving technological changes, suggesting that the technology had matured. arnett et al. (2014) concluded that the changes measured for water use in fracking operations are not the result of major discrete technological advances but of an industry learning to perfect its craft. the change in fracking water use seen from 2010 to 2011 and in 2012 and 2013 indicates there is a learnassumptions acre-feet/well 13.23 fresh groundwater (%) 90% potential gas reserves (1012 cubic feet) 119 reserves/well (109 cubic feet) 2 total potential wells 59,500 potential oil reserves (109 barrels) 13.6 barrels/well 220,000 total potential wells 61,818 implied fresh groundwater use potential acre-feet for gas wells 787,371 potential acre-feet for oil wells 818,048 total potential water (acre-feet) for oil and gas 1,605,420 total potential groundwater (acre-feet) oil and gas 1,444,878 previous consumption 2010–2013 (acre-feet) 97,157 percent of total 6.72% potential future consumption (acre-feet) 1,347,721 table 1. future fracking water potential consumption. texas water journal, volume 6, number 1 groundwater use in the eagle ford shale72 ing curve present, thus there is little basis for assuming large water savings from technological improvements in the future. we hypothesize that without policy changes, fresh groundwater use for fracking within the eagle ford shale will not decouple from drilling activity as was stated in the report by nicot et al. (2012). current regulatory apparatus: the rule of capture and gcds groundwater use in texas is primarily governed through the oversight of gcds; however, that regulatory power has been significantly circumscribed by the rule of capture. for a detailed history, see drummond et al. (2004). the rule of capture applies to groundwater and, prior to regulation by the rrc, to oil and natural gas. the principle behind the rule of capture is that, absent malice or willful waste, landowners have the right to take all the water they can capture under their land and do with it as they please, and they will not be liable to neighboring landowners even if they deprive their neighbors of the water use (potter 2004). absent strict regulatory limitations from gcds, this creates a strong incentive for groundwater owners to pump as much as they can as quickly as they can, lest their neighbor captures the same groundwater. in many key counties within the eagle ford shale, there exists a real conflict between current and future fresh groundwater consumers, as well as between irrigation, municipal, and oil and gas users (jervis 2014). under the status quo, consumers of fresh groundwater place a scarcity value on fresh groundwater that is essentially zero. in this context, scarcity value is defined as the increased value of a resource as it is depleted. the primary cost of groundwater is the cost of drilling and pumping the water well. a water well used for fracking is assumed to cost an average of approximately $500,000 (industry interview 2014). in oil and gas production, after fracking is completed, the water well becomes essentially free to the landowner, pursuant to the terms of the lease for oil or gas development. with no designated monetary value on the scarcity value of water, there is little incentive to use less today and save for future consumption. whether for livestock, municipal, irrigation, or oil and gas, the average water producer consumes as much water as they like, only to the extent gcds restrict their use. but this regulation is typically non-binding since gcds set the ceiling for irrigation in excess of actual water usage. for oil and gas companies, section 36.117b of the texas water code exempts oil and gas companies use of water for drilling and exploration (texas water code ann. § 36.117). some ambiguity arises about whether water for fracking is considered a part of drilling and exploration activity; nevertheless, gcds have been reluctant to restrict permitting or water use, though they may limit groundwater pumped off the lease to other locations. thus, large-scale water users are competing for a diminishing aquifer resource with no market signals of increasing scarcity, which would otherwise moderate consumption. huang et al. (2012) report drops of 100 feet to more than 300 feet in the carrizo aquifer in the southern portion of the carrizo-wilcox aquifer—the primary aquifer for fresh groundwater in the eagle ford. even if oil and gas drilling were not prevalent in this region, the eagle ford aquifers would still be drained by unrestrained use for other purposes. this reduction is because consumers of water resources are not slowed either by a price function or by the existing gcd regulatory structure in texas. as a general matter, agricultural users usually have exemptions or an allotment, which is rarely exceeded. statutorily, gcds may not require a permit for a water well supplying water to a rig actively engaged in drilling or exploration, though the water well must conform to gcd rules on casing, piping, and fittings (texas water code ann. § 36.117). even simple metering is not required or enforced for either agricultural or oil and gas users. assigning blame to either category of user without adequately addressing the overall problem in texas misses the crux of the water issue. other than wells used for oil and gas development, gcds have the power to restrict drilling of wells and pumping of water, using a variety of approaches, including spacing rules and limiting proportionality of production to acreage stipulations (unless exempt, as with oil and gas). gcds also develop periodically updated desired future conditions (dfcs), which are used in conjunction with modeled available groundwater (mags) and become the basis to permit, deny, or restrict groundwater use (mace 2006). mags are quantitative descriptions of groundwater resources in a management area. gcds preparing dfcs pursuant to recommendations for their groundwater management areas must identify aquifers, identify acceptable change to such aquifers over time, and produce a 50-year planning horizon in 10-year increments. in principle, the requirements to achieve the dfc within a groundwater management area should require gcds to have rules with teeth. however, in practice gcds can come back periodically and change to a more permissive dfc, thus avoiding regulations that significantly impact current uses. as noted above, the ambiguous regulatory power of gcds over wells drilled and groundwater pumped in connection with oil and gas exploration results in minimal enforcement. furthermore, irrigation wells that fall under gcds authority are assigned allotments of water that guarantee their maximum usage. essentially, only physical waste is prohibited. likewise, municipalities are allowed to pump their required allotments, which are based on their needs and not the drawdown of the aquifer. although gcds presumably have the power to reduce water use, it appears to be rarely done—at least in the eagle ford area. texas water journal, volume 6, number 1 73groundwater use in the eagle ford shale curiously, gcds do restrict pumping in a peculiar, perverse manner. typically, a landowner must receive gcd approval (an export permit) to sell groundwater to someone outside the boundary of the gcd. with a major city such as san antonio nearby, rationality indicates that an irrigator growing corn for ethanol should instead be allowed to sell his water to san antonio. clearly, water for san antonio has higher value than irrigated corn production. however, selling water outside the gcd is contingent; local control of gcds results in electing board members who are likely to thwart water sales outside the gcd. gcd power is further circumscribed by the rule of capture. the currently constituted powers of gcds are in tension and potentially conflict with the rule of capture in light of recent case law. regulatory overreach by gcds may amount to a “taking” of property rights. similarly, tighter regulation by gcds may lead to courts narrowing gcd powers by declaring something close to a per se taking. eliminating the rule of capture doctrine in texas may amount to a taking of property rights under the fifth amendment to the u.s. constitution and article i, section 17 of the texas constitution. the takings clauses of the u.s. and texas constitutions are straightforward, though their application may not be. the fifth amendment states, “private property [shall not] be taken for public use, without just compensation.” article i, section 17 of the texas constitution guarantees,“no person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.” these takings clauses were “designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (armstrong v. united states 1960) in 2012, edwards aquifer authority and texas v. day and mcdaniel held that, under article i, section 17 of the texas constitution, regulators can limit water usage, but land ownership still includes an interest in groundwater in place, which cannot be taken for public use without compensation (edwards aquifer authority and texas v. day and mcdaniel 2012). thus, tension exists between landowners’ ownership of percolating water and texas groundwater districts’ statutory assertion of regulatory rights over such property. under chapter 36 of the texas water code, gcds have power to adopt minimum well spacing or tract size requirements, set water production shares according to acreage owned, and set production limits on specific wells. under the existing legal rulings and gcd structure, we appear headed for endless litigation, for which gcds are ill-equipped. gcds are funded by local tax sources and are likely unable to finance protracted litigation. the goal of our third proposal is to clearly define property rights of groundwater and thereby end the possibility of endless litigation. in sum, the inherent problems in the texas regulatory scheme for managing underground freshwater use cannot be solved by gcds themselves. in addition to the political problems, gcds are limited in power and resources. some will argue that gcds, through decades of tepid effectiveness, have contributed to the present magnitude of the problem. even if gcds were historically more effective, a new wave of takings cases asserting the primacy of the rule of capture and the fifth amendment could potentially bankrupt any gcd inclined to try to flex its regulatory muscle. overview of policy recommendations our 3 policy recommendations are organized in order of their ease of implementation. the first requires mandatory metering of groundwater use. this is a prerequisite to informed policy. currently, the state relies on a mishmash of sources and estimates. water has simply become too valuable to treat it as a free resource. second, we propose a combination of incentives and public commendation to encourage oil and gas companies active in the eagle ford to avoid using fresh groundwater by substituting with brackish water, municipal treated wastewater, or recycled water. this proposal will allow the continued development of the eagle ford and have the advantage of removing the oil and gas industry from the future conflict over fresh groundwater. our third recommendation is admittedly politically problematic and would face many hurdles. nevertheless, its ambitious focus is on alleviating the perverse incentives of the rule of capture via a groundwater banking system. policy recommendation 1: mandatory reporting for all water uses a prerequisite to any informed water policy is the need for accurate data on water consumption. categorically, this means improving the transparency of data reporting by irrigation, municipal, oil and gas, and other use categories. below is a summary of the status quo as it pertains to data reporting: • irrigation: the twdb merely estimates the acre-feet of water consumption per observed crop and irrigation acreage by aerial and fence-line approximations. • livestock: rural landowners’ and ranchers’ water consumption is formula-based in accordance with livestock and other miscellaneous factors. however, wells used solely for domestic and livestock purposes require no reporting of pumping or use. • municipal use: municipalities and non-oil and gas-related industries have the most accurate data, as they measure production and use, including retail customer sales. however, the split between surface water uses versus fresh groundwater uses is not always clear. texas water journal, volume 6, number 1 groundwater use in the eagle ford shale74 • industrial: industrial and power plants that are not customers of local municipal utility companies may or may not have metering and accurate pumping data. • oil and gas: beginning in february 2012, the rrc required a report for each well drilled that includes the number of barrels of water used for drilling and fracking purposes (1 16 tac §3.29). however, the rrc reporting requirement does not require that the respondent provide either the type of water—surface water, fresh groundwater, brackish groundwater, or recycled water— nor the source—well depth and location. if reported, these data are submitted either to the gcds, the twdb, or the rrc. there appears to be little coordination of data gathering and little ability to monitor the correctness of the data. for example, the water usage reported to the rrc had numerous errors where the respondent may have entered barrels instead of gallons. out of 6,752 wells reported, our analysis indicated there were 3,002 wells either with implausible volumes of water used for fracking or missing data. to alleviate this lack of transparency, our policy recommendation will make all well depths and water consumption categories, including salinity of the water, reportable. our proposal is for groundwater consumption data to be reported online and subject to spot checks. specifically, this proposal would cover the following groups: • irrigation users should be required to install metering equipment and report usage to the gcds or equivalent county reporting agency. • rural homeowners with a water well would be exempt from metering but not from reporting estimated usage. in an applied system, we recommend the development of a formula to handle water consumption, estimating user consumption under a certain threshold. this information would be reported to the resident’s gcd or equivalent county reporting agency. • other agricultural users, such as ranchers and poultry operations, would be required to meter groundwater usage. this information would be reported to the twdb. • municipalities should be required to meter groundwater consumption and to distinguish between brackish and fresh groundwater. this includes requiring residential customers within the municipality’s service areas who drill personal wells to meter and report to the utility. this information would be reported to the twdb. • industrial users served by their own wells should be required to meter and report usage to the twdb. • power plants with their own well should also be required to meter and report usage. this information would be reported to the twdb. • oil and gas companies would be required to report not only total water uses (which they currently do) but the type of water—surface, fresh groundwater, brackish groundwater (with salinity content), or recycled water— in addition to water well location and depth. this information would be reported to the rrc. reliable consumption data is fundamental to informed policy and a necessary building block to reforming the current regulatory structure. thus, our policy recommendation is a fundamental first step for which there should be little opposition. policy recommendation 2: incentivizing the substitution away from fresh groundwater our second policy recommendation is a 2-part plan to encourage oil and gas operators to use less fresh groundwater when possible. the options include using surface water, recycled water, brackish groundwater, or even municipal treated wastewater. the individual operators would be free to choose their preferred substitute for fresh groundwater. based on the high cost of recycled water and limited supplies of municipal treated wastewater in the area, the least-cost choice for most operators will be brackish groundwater, which is available in abundant supply. first, operators would receive recognition from a proposed green star program through the rrc (and possibly the tceq) if they take the pledge to dramatically reduce their use of fresh groundwater. this program would consist of a bronze, silver, and gold tier, depending on the percentage of fresh groundwater used for fracking. part 2 involves a severance tax reduction for wells drilled by green star operators that have qualified for at least bronze level status in the green star program. together, these two components would provide operators a financial and social incentive to conserve fresh groundwater. as noted above, the pledge to dramatically reduce fresh groundwater use could, in principle, involve substituting recycled water (flowback and produced water). however, in most instances, this option is likely to be far more expensive than simply using brackish water (slutz et al. 2012). for most areas of the eagle ford, brackish groundwater supplies are abundant and the least expensive option to fresh groundwater. nevertheless, some companies might experiment with these other sources, which would be a good thing. the green star program would recognize that it may not be reasonable to avoid using fresh groundwater in all instances because of inadequate supplies of surface water, brackish water, or recycled water. (very slow flowback of produced water makes recycling prohibitively expensive.) at the very lowest level of participation in the green star program, an operator could use no more than 30% fresh groundwater for fracking. given the current practice of using 90% fresh groundwater for fracking, this program would significantly reduce fresh groundwater texas water journal, volume 6, number 1 75groundwater use in the eagle ford shale consumption. the incentive component of our proposal consists of granting green star operators a severance tax abatement of $50,000 per eagle ford well for using alternatives to fresh groundwater. this is not a large cost to the state, given that a typical well will pay many multiples of that in severance taxes. arnett et al. (2014) compute that the fiscal impact on severance tax revenues would mean when oil prices are $100 per barrel, the severance tax collected would fall from 4.6% to about 4% in the first year of production and be unaffected thereafter. at $50 per barrel , the first year severance tax reduction would fall from 4.6% to about 3.4% just for the first year of production. in effect, this incentive would have a relatively minor effect on severance tax revenues and a substantial environmental benefit. from the operators’ perspective, this tax break would offset much of the cost of using brackish groundwater. fresh groundwater typically sells for $0.50 per barrel in the eagle ford. thus, a typical operator in the eagle ford would expect to spend $50,000 per 100,000 barrels of water on any well. a $50,000 severance tax savings would allow operators to double their investment in water, without taking a financial hit. particularly for an operator drilling 8 to 10 wells on a lease, an incentive bundle of $400,000 to $500,000 should be sufficient to offset the added cost of drilling a deeper water well to tap into brackish water formations. since most operators in an immediate area will be drilling multiple wells, 1 brackish groundwater well costing an additional $400,000 could provide water to a number of wells and would be justified on a cost basis. the other essential component of this policy is to publically recognize green star operators as being environmentally responsible. by recognizing operators who pledge to use less fresh groundwater while abiding with other tceq and rrc environmental regulations, these companies could demonstrate that they are willing to do more than simply talk about being environmentally responsible. in order to qualify for green star recognition at the bronze level, operators could only use fresh groundwater for 30% or less of their wells and be compliant with all other regulations. this would earn them bronze level status in the program and make them eligible for the aforementioned tax incentives. in order to qualify for the silver level, operators would have to lower this number to 20%. to qualify for the gold level, operators would use fresh groundwater for no more than 10% of their wells. while the silver and gold levels do not offer any additional tax benefits, they will show the public how much an operator is willing to conserve fresh groundwater. the potential public relations benefits to green star operators are many. first, these operators will be drilling and producing oil and gas in the eagle ford for many decades to come. by curtailing the use of fresh groundwater for fracking, green star companies would no longer be competitors with irrigators and municipalities for increasingly scarce fresh groundwater supplies. second, the green star designation would be something that the firms and the industry should welcome. not only would it be a mechanism to improve the public image of individual companies, but, if widely adopted by the 200 plus operators in the eagle ford, it could vastly improve the industry’s image. an additional benefit to the rrc is that this program would be evidence of the commission’s forward-looking agenda and demonstrate its proactive efforts to solve both a quantitative and qualitative environmental problem. the eagle ford shale has provided the state budget with an enormous windfall. using a small portion of this windfall to incentivize shifting away from using fresh groundwater is a wise long-term investment in texas. for oil and gas operators, and the industry as a whole, these incentives should be adequate to tip the balance in favor of using brackish groundwater and greatly enhance their public image in the process. farmers, ranchers, and municipalities in these counties would benefit from the reduced consumption of freshwater supplies. finally, it demonstrates texas’ ability to solve its own problems and proactively address an important issue without interference from the environmental protection agency. a futuristic idea: groundwater bank accounts as mentioned earlier in this paper, property rights for groundwater in texas are defined primarily under the rule of capture. this legal precedent creates an incentive to consume water as quickly as possible and prices water close to the cost of extraction with little respect to its rising scarcity value. in a water-scarce region, such as the eagle ford, the result of this policy is artificially cheap water today and much more expensive water in the future once the cheap sources are depleted. in the past, when water use more closely matched aquifer recharge rates, the rule of capture as a means of defining property rights was sensible and administratively simple—water users were rarely pumping enough to impact their neighbor’s water consumption. however, when consumption greatly exceeds the recharge rate, the rule of capture allows the landowner with the fastest pump to pull water from the surrounding area and use it as if it were a free resource. this incentive structure is similar to early difficulties with texas oil and gas, where property owners had little power to control the resources they rightfully owned. there is a variety of alternative ways to define property rights other than through the rule of capture. in many countries and most u.s. states, groundwater is the property of the state, so this eliminates competition between landowners. regulators then face the dilemma of who can produce the water and how much. yet another method of defining property rights is to allow private ownership but limit water consumption to a predetermined quantity each year. in researching these various texas water journal, volume 6, number 1 groundwater use in the eagle ford shale76 means, it became apparent that few free market systems are in place throughout the nation; as a result, we began to think of how the market could solve the problem while still protecting private property rights. below are several steps that would shift groundwater in the eagle ford toward a more open market structure that would both respect private property rights and provide for efficient consumption and pricing of water over time. the idea is to create groundwater bank accounts that would work as follows: • determine the magnitude of the fresh groundwater geographically: based on hydrological studies for a county or gcd, determine the acre-feet of fresh groundwater in major aquifers as defined on a per acre basis. the twdb maintains detailed hydrological models of the various aquifers in the eagle ford area as well as in other areas of the state. these models provide, on a 1 square mile grid, the total estimated recoverable storage. these estimates, called total estimated recoverable storage, assume that between 25% and 75% of groundwater held in an aquifer can be recovered through pumping. thus within a 1 square mile area, it is possible to compute an estimate of the acre-feet of groundwater underlying a landowner’s property. the estimate of acre-feet of water per acre of surface area will vary across the county or gcd because these aquifers are not homogeneous. • define water as a resource similar to mineral rights: in doing this, landowners could now know with some certainty the quantity of water in place under their property and have the right to use, sell, or save that water as they see fit. • calculate year-to-year debits to each owner’s groundwater bank: each year, the landowner’s quantity of waterin-place would be reduced by the number of acre-feet pumped by wells on his property. in principle, every 10 to 20 years, landowners could receive credits for recharge, based on new data. as a practical matter, this could be very difficult to measure with any precision. recharge rates remain one of the most difficult numbers to quantify. • allow free trade of water rights: landowners would be free to sell water either within or outside its gcd with no permit required. the benefit of this policy recommendation is that it should greatly improve the inter-temporal consumption of groundwater. clearly, the price of water will reflect the willingness to pay of the consumer and the opportunity costs of the supplier. this would ensure that water is allocated efficiently not only to the present generation but also to future generations. landowners would have an incentive to include the potential for higher future demand and scarcity in their decisions to either use the water internally or sell it to other users who may choose to store or use the water. they would not have to fear that their water might be taken from them, as they do now under the rule of capture. as the price of water today increases as a result of resource scarcity, its price will rise gradually, forcing more conservation today. the transition to alternatives (i.e. desalination, importing water, and others) will become smoother with less drastic price jumps in the future. despite these obvious advantages, the transition to a system of groundwater bank accounts faces a number of roadblocks due to the existing regulatory landscape, administrative costs, underlying science, and legal obstacles. first, even though we found the gcds in the eagle ford exercised little restraint on the rate of pumping, they potentially could exercise broad powers in the future. turning the gcds into metering and monitoring agencies would be opposed by users currently facing no effective restraints. second, the groundwater bank accounts depend critically on our first proposal—mandatory metering of water use. associated with this monitoring and reporting function would be significant administrative costs, which would be ideally handled at the gcd level. third, the science of accurately measuring the groundwater under a given landowner’s property is necessarily imprecise. while tremendous scientific progress has been made, these models are continually being refined and remain subject to error. as new information becomes available, it might become necessary to adjust the balances in the bank accounts. fourth, just as the existing regulatory scheme has spawned a variety of lawsuits, this alternative would not be immune to challenges that the total estimated recoverable storage, which is based upon the twdb’s models, are in error. while the burden of proof would at least fall on the plaintiff, an end to legal challenges seems unlikely. nevertheless, it should end the issue of takings since a landowner’s property rights are protected. conclusion a combination of the rule of capture, minimal regulation by gcds, and the evolving law of takings has resulted in a dysfunctional regulatory apparatus. with the advent of substantial fresh groundwater use in the eagle ford shale, the problem has only been exacerbated. this paper proposes 3 policy recommendations to address this issue. first, it is necessary to better measure fresh groundwater pumping rates. second, tax incentives plus recognition of environmentally responsible oil and gas companies, could lead to widespread substitution of fresh groundwater. given large reserves of brackish groundwater, substituting brackish groundwater is the most obvious solution. third, an entirely new approach to governing groundwater consumption, involving the creation of groundwater bank accounts, should be texas water journal, volume 6, number 1 77groundwater use in the eagle ford shale developed. we believe this change would fundamentally alter the incentives to conserve increasingly scarce groundwater resources. acknowledgments this paper is based on a capstone project at the texas a&m bush school of government and public service under the direction of our faculty advisor, professor james m. griffin. the original report was to commissioner christi craddick at the rcc. we wish to thank professor griffin as well as the 3 anonymous referees for numerous helpful comments. references [1 16 tac §3.29] texas administrative code title 16, section 3.29 armstrong v. united states, 364 u.s. 40 (1960) arnett b, healy k, jiang z, leclere d, mclaughlin l, roberts j, steadman m. 2014. hydraulic fracturing in the eagle ford shale. a report to commissioner christi craddick, texas railroad commission. college station (texas): bush school, texas a&m university. 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[mcmullen county gcd] mcmullen county groundwater conservation district. 2008. mcmullen county groundwater conservation district district management plan [internet] mcmullen groundwater conservation district; [cited 2015 march 31]. available from: http://www.mcmullengcd.org/uploads/mgcdmpapproved_08_07_08.pdf [mid-east texas gcd] mid-east texas groundwater conservation district. 2009. management plan: mid-east texas http://www.adv-res.com/pdf/a_eia_ari_2013%20world%20shale%20gas%20and%20shale%20oil%20resource%20assessment.pdf http://www.adv-res.com/pdf/a_eia_ari_2013%20world%20shale%20gas%20and%20shale%20oil%20resource%20assessment.pdf http://www.adv-res.com/pdf/a_eia_ari_2013%20world%20shale%20gas%20and%20shale%20oil%20resource%20assessment.pdf http://www.beegcd.com/uploads/beedmpapproved_8_21_13_2_.pdf http://www.beegcd.com/uploads/beedmpapproved_8_21_13_2_.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/bbgcd/bbgcd_mgmt_plan2013.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/bbgcd/bbgcd_mgmt_plan2013.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/bbgcd/bbgcd_mgmt_plan2013.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/bvgcd/bvgcd_mgmt_plan2010.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/bvgcd/bvgcd_mgmt_plan2010.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/bvgcd/bvgcd_mgmt_plan2010.pdf https://www.twdb.texas.gov/groundwater/docs/gcd/euwcd/euwcd_mgmt_plan2011.pdf https://www.twdb.texas.gov/groundwater/docs/gcd/euwcd/euwcd_mgmt_plan2011.pdf https://www.twdb.texas.gov/groundwater/docs/gcd/euwcd/euwcd_mgmt_plan2011.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/fcgcd/fcgcd_mgmt_plan2013.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/fcgcd/fcgcd_mgmt_plan2013.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/fcgcd/fcgcd_mgmt_plan2013.pdf https://www.twdb.texas.gov/groundwater/docs/gcd/gcuwcd/gcuwcd_mgmt_plan2014.pdf https://www.twdb.texas.gov/groundwater/docs/gcd/gcuwcd/gcuwcd_mgmt_plan2014.pdf https://www.twdb.texas.gov/groundwater/docs/gcd/gcuwcd/gcuwcd_mgmt_plan2014.pdf http://www.usatoday.com/story/news/nation/2014/01/15/texas-oil-boom-fracking/4481977/ http://www.usatoday.com/story/news/nation/2014/01/15/texas-oil-boom-fracking/4481977/ https://www.twdb.texas.gov/groundwater/docs/gcd/lpgcd/lpgcd_mgmt_plan2012.pdf https://www.twdb.texas.gov/groundwater/docs/gcd/lpgcd/lpgcd_mgmt_plan2012.pdf http://www.mcmullengcd.org/uploads/mgcdmpapproved_08_07_08.pdf http://www.mcmullengcd.org/uploads/mgcdmpapproved_08_07_08.pdf texas water journal, volume 6, number 1 groundwater use in the eagle ford shale78 groundwater conservation district [internet]. mid-east texas groundwater conservation district; [cited 2015 march 31]. available from: http://www.mideasttexasgcd. com/management%20plan.pdf nicot jp, reedy rc, costley ra, huang y. 2012. oil and gas water use in texas: update to the 2011 mining water use report. austin (texas): the university of texas at austin. [pecan valley gcd] pecan valley groundwater conservation district. 2009. groundwater management plan: pecan valley groundwater conservation district [internet]. austin (texas): texas water development board; [cited 2015 march 31]. available from: http://www.twdb. texas.gov/groundwater/docs/gcd/pvgcd/pvgcd_mgmt_ plan2014.pdf [post oak savannah gcd] post oak savannah groundwater conservation district. 2012. groundwater management plan [internet]. post oak savannah groundwater conservation district; [cited 2015 march 31]. available from: http://www.posgcd.org/wp-content/uploads/2011/10/ posgcd-mgt-plan-adopted-10-9-121.pdf potter hg. 2004. history and evolution of the rule of capture. in: mullican iii wf, schwartz s. editors. 100 years of capture: from east to groundwater management [internet]. symposium sponsored by the texas water development board, june 15, 2004. austin, texas. report 361. available from: http://www.twdb.texas.gov/publications/ reports/numbered_reports/doc/r361/report361.asp [rrc] railroad commission of texas. 2013. eagle ford shale task force report. [internet]. austin (texas): railroad commission of texas. available from: http://www.rrc. state.tx.us/media/8051/eagle_ford_task_force_report0313.pdf scanlon br, reedy rc, nicot jp. 2014. will water scarcity in semiarid regions limit hydraulic fracturing of shale plays?. environmental research letters. 9(12): 124011. slutz j, anderson j, broderick r, horner p. 2012. key shale gas water management strategies: an economic assessment tool. international conference on health, safety and environment. society of petroleum engineers. [texas water code ann. § 36.117] texas water code chapter 36, section 36.117. [twdb] texas water development board. 2015. historical water use estimates, “county summary, 2000 and later” [internet]. texas water development board. available from: http://www.twdb.texas.gov/waterplanning/waterusesurvey/estimates/ [useia] u.s. energy information administration. 2011 november 3. eagle ford shale drilling & production, trends in eagle ford drilling highlight the search for oil and natural gas liquids. today in energy [figure, internet]. available from: http://www.eia.gov/todayinenergy/detail. cfm?id=3770 [wintergarden gcd] wintergarden groundwater conservation district. 2011. wintergarden groundwater conservation district: management plan [internet]. wintergarden groundwater conservation district; [cited 2015 march 31]. available from: http://wgcd.net/sites/wgcd. net/files/file/5/wgcdmanagementplan.pdf http://www.mideasttexasgcd.com/management%20plan.pdf http://www.mideasttexasgcd.com/management%20plan.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/pvgcd/pvgcd_mgmt_plan2014.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/pvgcd/pvgcd_mgmt_plan2014.pdf http://www.twdb.texas.gov/groundwater/docs/gcd/pvgcd/pvgcd_mgmt_plan2014.pdf http://www.posgcd.org/wp-content/uploads/2011/10/posgcd-mgt-plan-adopted-10-9-121.pdf http://www.posgcd.org/wp-content/uploads/2011/10/posgcd-mgt-plan-adopted-10-9-121.pdf http://www.twdb.texas.gov/publications/reports/numbered_reports/doc/r361/report361.asp http://www.twdb.texas.gov/publications/reports/numbered_reports/doc/r361/report361.asp http://www.rrc.state.tx.us/media/8051/eagle_ford_task_force_report-0313.pdf http://www.rrc.state.tx.us/media/8051/eagle_ford_task_force_report-0313.pdf http://www.rrc.state.tx.us/media/8051/eagle_ford_task_force_report-0313.pdf http://www.twdb.texas.gov/waterplanning/waterusesurvey/estimates/ http://www.twdb.texas.gov/waterplanning/waterusesurvey/estimates/ http://www.eia.gov/todayinenergy/detail.cfm?id=3770%20 http://www.eia.gov/todayinenergy/detail.cfm?id=3770%20 http://wgcd.net/sites/wgcd.net/files/file/5/wgcdmanagementplan.pdf http://wgcd.net/sites/wgcd.net/files/file/5/wgcdmanagementplan.pdf reservoir/river system management mode texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 3, number 1 2012 texas water journal http://texaswaterjournal.org volume 3, number 1 2012 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas agrilife research, the texas agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources copy and social media editor forrest burnson the university of texas at austin school of journalism cover photo: located in far east texas and stretching into louisiana, caddo lake is known for its extensive forests of baldcypress trees draped with spanish moss. this famous lake is home to a rich ecosystem and a wide variety of wildlife. the cover photo was taken during normal water levels, but in 2011 the lake’s levels dropped significantly during the drought. photo credit: texas water resources institute http://texaswaterjournal.org http://texaswaterjournal.org texas water journal, volume 3, number 1 26 texas water journal, volume 3, number 1 texas water resources institute texas water journal volume 3, number 1, pages 26 –41, august 2012 reservoir/river system management models abstract: the u.s. army corps of engineers, texas water development board, texas commission on environmental quality, texas parks and wildlife department, river authorities, regional planning groups, consulting firms, and university researchers model the development, control, allocation, and management of major river systems in texas in support of a variety of water resources planning and management activities. this paper presents a comparative review of river/reservoir system modeling capabilities that integrates the texas experience with nationwide endeavors to develop and implement generalized models. the enormous published literature on reservoir/river system models is complex. this state-of-the-art assessment begins with a broad general review of the massive literature and then focuses on generalized modeling systems that have been extensively applied by water management agencies in a broad spectrum of decision-support situations in texas and elsewhere. several modeling systems are suggested as being representative of the state-of-the-art from a practical applications perspective. modeling capabilities are explored from the perspectives of types of applications, computational methods, model development environments, auxiliary analyses, and institutional support. the paper highlights advances in modeling complex river/reservoir system management issues that are significantly contributing to actual practical improvements in water management. keywords: reservoir systems, simulation models, water management 1professor, zachry department of civil engineering, texas a&m university, college station, texas 77843-3136, r-wurbs@tamu.edu, (979)845-3079 ralph a. wurbs1 citation: wurbs ra. 2012. reservoir/river system management models. texas water journal. 3(1):26-41. available from: https:// doi.org/10.21423/twj.v3i1.1066. © ralph a. wurbs. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. mailto:r-wurbs@tamu.edu https://doi.org/10.21423/twj.v3i1.1066 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 3, number 1 27 terms used in paper short name or acronym descriptive name al-v surface water resources allocation model cadswes center for advanced decision support for water and environmental systems calsim california simulation model cwms corps water management system dpsim-i dynamic programming simulation model hec hydrologic engineering center hec-5 simulation of flood control and conservation systems hec-dss hydrologic engineering center data storage system hec-fia hydrologic engineering center flood impact analysis hec-hms hydrologic engineering center hydrologic modeling system hec-prm hydrologic engineering center prescriptive reservoir model hec-ras hydrologic engineering center river analysis system hec-ressim hydrologic engineering center reservoir system simulation model mike basin river basin simulation model modflow modular finite-difference flow model modsim river basin management decision support system monitor-i surface storage and conveyance systems oasis operational analysis and simulation of integrated systems riverware river and reservoir operations model sim-v multireservoir simulation and optimization model simyld-ii river basin simulation model super corps of engineers southwestern division model swd corps southwestern division wam water availability modeling weap water evaluation and planning wrap water rights analysis package wresl water resources engineering simulation language wrims water resources integrated modeling system texas water journal, volume 3, number 1 28 reservoir/river system management models reservoir/river system management modelsreservoir/river system management models introduction the objectives of this paper are to assist practitioners in selecting and applying models in various types of river/reservoir system management situations and to support research in continuing to improve and expand modeling capabilities. the extensive experience accumulated by the water management community in actually implementing reservoir/river system models differs substantially from the immense published research literature on modeling techniques. generalized modeling systems play a dominant role in practical applications. this review of reservoir/river system analysis capabilities focuses on user-oriented generalized modeling systems. generalized means that a model is designed for application to a range of concerns dealing with river systems of various configurations and locations, rather than being site-specific customized to a particular system. model users develop input datasets for the particular river basin of interest. user-oriented implies that a model is designed for use by professional practitioners other than the model developers and is thoroughly tested and well-documented. user-oriented generalized modeling systems should be convenient to obtain, understand, and use and should work correctly, completely, and efficiently. this state-of-the-art assessment begins with a brief overview of the massive literature, then focuses on the evolution of generalized modeling systems, and finally further focuses on the 4 modeling systems listed in table 1. reservoir system simulation (hec-ressim), river and reservoir operations (riverware), river basin management decision support system (modsim), and water rights analysis package (wrap) provide a broad range of analysis capabilities and are representative of the state of the art from the perspective of practical applications dealing with complex river systems. the 4 alternative modeling systems reflect a broad spectrum of types of applications, computational methods, modeling environments, and analysis capabilities. the u.s. army corps of engineers (corps) hydrologic engineering center (hec) has developed a suite of generalized simulation models, including hec-ressim, which is extensively applied in texas as well as nationwide and abroad. the corps fort worth district has routinely applied a model called southwestern division model (super) to the major river basins of texas over the past several decades and more recently has transitioned to hec-ressim and riverware. the lower colorado river authority, lower neches river authority, and tarrant regional water district, their consultants, as well as the corps fort worth district have applied riverware. modsim is based on a network flow programming formulation pioneered in early texas water development board (board) river/reservoir system models. wrap is widely applied by the board, texas commission on environmental quality (commission), texas parks and wildlife department, regional planning groups, river authorities, and consulting firms. super, hec-ressim, riverware, modsim, and wrap, and applications thereof, are explored by wurbs (2005a). table 1. generalized reservoir/river system modeling systems. short name descriptive name model development organization hec-ressim hydrologic engineering center reservoir system simulation u.s. army corps of engineers hydrologic engineering center http://www.hec.usace.army.mil/ riverware river and reservoir operations center for advanced decision support for water and environmental systems, u.s. bureau of reclamation, tennessee valley authority http://riverware.org/ modsim river basin management decision support system colorado state university and u.s. bureau of reclamation http://modsim.engr.colostate.edu/ wrap water rights analysis package texas a&m university and texas commission on environmental quality http://ceprofs.tamu.edu/rwurbs/wrap.htm modeling river system development and management computer modeling of reservoir/river systems encompasses various hydrologic, physical infrastructure, environmental, and institutional aspects of river basin development. dams and appurtenant structures are required to control highly fluctuating river flows to reduce flooding and develop reliable water supplies. institutional arrangements for allocating and managing water resources are integrally connected to systems of constructed facilities. management of the water and related land and environmental resources of a river basin integrates natural and man-made systems. http://www.hec.usace.army.mil/ http://riverware.org/ http://modsim.engr.colostate.edu/ http://ceprofs.tamu.edu/rwurbs/wrap.htm texas water journal, volume 3, number 1 29reservoir/river system management models reservoir/river system management models the generalized river/reservoir system management models explored in this paper are based on volume-balance accounting procedures for tracking the movement of water through a system of reservoirs and river reaches. the models compute reservoir storage contents, water supply withdrawals, hydroelectric energy generation, and river flows for specified water demands, system operating rules, and input sequences of stream inflows and net reservoir surface evaporation less precipitation rates. for the water management modeling systems addressed in this paper, the spatial configuration of a river/reservoir system is represented by a set of model control points, sometimes called nodes or stations, connecting river reaches as illustrated in figure 1. control points represent the sites of reservoirs; hydroelectric power plants; water supply diversions and return flows; environmental instream flow requirements; conveyance canals and pipelines; stream confluences; river basin outlets; and other system components. stream inflows at control points are provided as input. reservoir storage and streamflows are allocated between water users based on rules specified in the model. the models described in this paper have been applied to river systems ranging in complexity from a single reservoir or run-of-river water supply diversion to river basins containing many hundreds of reservoirs and water supply diversion sites with operations governed by complex multipurpose reservoir system operating rules and institutional water allocation mechanisms. these models combine a specified scenario of water resources development, control, allocation, management, and use with a specified condition of river basin hydrology, which is most often historical hydrology representing natural, unregulated conditions. river basin hydrology is represented by streamflow inflows and net reservoir surface evaporation-precipitation rates for each time step of a hydrologic period-of-analysis. the hydrologic simulation period and computational time step may vary greatly depending on the application. storage and flow hydrograph ordinates for a flood event occurring over a few days may be determined at intervals of an hour or less. water supply capabilities may be modeled with a monthly time step and a many-year hydrologic period-of-analysis, reflecting a full range of fluctuating wet and dry periods, including extended multiyear droughts. a river/reservoir system model simulates a physical and institutional water management system with specified conditions of water demand for each sequential time step of a hydrologic period-of-analysis. post-simulation streamflow and reservoir storage frequency analysis and supply reliability analysis capabilities are typically included in the modeling systems addressed by this paper. reservoir storage and streamflow frequency statistics and water supply reliability metrics are developed for alternative river/reservoir system management strategies and practices. other auxiliary modeling features are also, in some cases, incorporated in the river/reservoir management models. some models include features for economic evaluation of system performance based on cost and benefit relationships expressed as a function of flow and storage. stream inflows are usually generated outside of the reservoir/river system management model and provided as input to the model. however, reservoir/ river system models may also include capabilities for simulating precipitation-runoff processes to generate inflows. though hydraulics may be pertinent to reservoir operations, separate models of river hydraulics are typically applied to determine flow depths and velocities. some reservoir/river system management models simulate water quality constituents along with water quantities. however, generalized water quality models, not covered in this paper, are designed specifically for particular types of river and/ or reservoir system water quality analyses. the typically relatively simple water quality features of the models explored in this paper are secondary to their primary function of detailed modeling of water development, regulation, allocation, and management. modeling applications often involve a system of several models, utility software products, and databases used in combination. a reservoir/river system management model is itself a modeling system, which often serves as a component of a larger modeling system that may include watershed hydrology and river hydraulics models, water quality models, economic figure 1. illustrative schematic of a river system as viewed from a modeling perspective. texas water journal, volume 3, number 1 30 reservoir/river system management models reservoir/river system management models evaluation tools, statistical analysis methods, databases, and various software tools for managing time series, spatial, and other types of data. the models discussed here are used for various purposes in a variety of settings. planning studies may involve proposed construction projects, reallocations of storage capacity, or other operational modifications at existing projects. reservoir operating policies may be reevaluated periodically to assure responsiveness to current conditions and objectives. studies may be motivated by drought conditions, major floods, water quality problems, or environmental losses. operating plans for the next year or next season may be updated routinely based on a modeling system. models support the administration of treaties, agreements, water rights systems, and other water allocation mechanisms. real-time modeling applications may involve decision support for water management and use curtailment actions during droughts. likewise, real-time flood control operations represent another type of application. is covered by water resources systems books (karamouz et al. 2003; jain and singh 2003; simonovic 2009) as well as numerous operations research and mathematics books. literally thousands of journal and conference papers have been published since the 1960s on applying variations of linear programming, dynamic programming, gradient search algorithms, evolutionary search methods such as genetic algorithms, and other optimization techniques to reservoir system analysis problems. various probabilistic methods for incorporating the stochastic nature of streamflows and other variables in the optimization models have been proposed (labadie 2004). this paper focuses on generalized simulation models. a simulation model is a representation of a system used to predict its behavior under a given set of conditions. alternative executions of a simulation model are made to analyze the performance of the system under varying conditions, such as for alternative operating plans. many simulation models incorporate only computational algorithms developed specifically for a particular model. alternatively, a simulation model may adopt generic algorithms such as linear programming to perform certain computations. although optimization and simulation are 2 alternative modeling approaches with different characteristics, the distinction is obscured because models may combine elements of both in various ways. as noted above, optimization algorithms may be embedded within simulation models to perform certain periphery computations or provide the fundamental computational framework for the simulation model. conversely, an optimization procedure may involve automated iterative executions of a simulation model. system analysis models are often categorized as being prescriptive or descriptive. descriptive simulation models demonstrate what will happen if a specified plan is adopted. prescriptive optimization models automatically determine the plan that will best satisfy specified decision criteria. however, mathematical programming (optimization) techniques are used to perform computations in descriptive simulation models as well as to develop more prescriptive optimization strategies. although it may be desirable for models to be as prescriptive as possible, real-world complexities of reservoir system operations typically necessitate model orientation toward the more descriptive end of the descriptive/prescriptive spectrum. linear programming of the many mathematical programming (optimization) methods available, linear programming, particularly network flow linear programming, has been the method most often adopted in practical modeling applications in support of actual water management activities. the general linear programming formulation described in many mathematics and systems engineering textbooks is as follows: reservoir system modeling literature pioneering efforts in computer simulation of reservoir systems in the united states include corps’ studies of 6 reservoirs on the missouri river initiated in 1953 and international boundary and water commission (boundary commission) simulations of the rio grande in 1954 (maass et al. 1966). major board model development efforts in support of water planning in texas began in the 1960s (twdb 1974). several books on modeling and analysis of reservoir operations are available (votruba and broza 1989; wurbs 1996; revelle 1999; nagy et al. 2002). labadie (2004) summarizes the extensive and complex research literature on reservoir system optimization models. wurbs (1993, 2005a) presents state-of-the-art reviews of reservoir system analysis from a practical applications perspective. optimization and simulation reservoir system analysis models have traditionally been categorized as simulation, optimization, or hybrid combinations of both. development and application of decision-support tools within the federal and state water resources development agencies in the united states have focused on simulation models. the published literature on modeling reservoir systems is dominated by optimization techniques. however, the optimization techniques are often used as the computational engine of simulation models. the term optimization is used synonymously with mathematical programming to refer to a mathematical algorithm that computes a set of decision variable values that minimize or maximize an objective function subject to constraints. optimization texas water journal, volume 3, number 1 31reservoir/river system management models reservoir/river system management models minimize or maximize (1) subject to for i = 1,…,m and j=1,…,n (2) for j = 1,…,n a linear programming solution algorithm finds values for the n decision variables xj that optimize an objective function subject to m constraints. the cj in the objective function equation and the aij and bi in the constraint inequalities are constants. a number of generalized reservoir system simulation models, including several discussed later in this paper, are based on network flow programming, which is a computationally efficient form of linear programming. network flow programming is applied to problems that can be formulated in a specified format representing a system as a network of nodes and arcs having certain characteristics. the general form of the formulation is as follows. minimize or maximize for all arcs (4) subject to for all nodes (5) for all arcs (6) where qij is the flow rate in the arc connecting node i to node j; cij is a penalty or weighting factor for qij; lij is a lower bound on qij; and uij is a upper bound on qij. for a reservoir/river system, the nodes are sites of reservoirs, diversions, stream tributary confluences, and other pertinent system features as illustrated by the control points of figure 1. nodes are connected by arcs or links representing the way flow is conveyed. flow may represent a discharge rate, such as instream flows and diversions, or a change in storage per unit of time. a solution algorithm determines the values of the flows qij in each arc that optimize an objective function subject to constraints, including maintaining a mass balance at each node and not violating user-specified upper and lower bounds on the flows. the weighting factors cij in the objective function are defined in various ways, such as unit costs in dollars or penalty or utility terms, that provide mechanisms for expressing relative priorities. each arc has 3 parameters: a weighting, penalty, or unit cost factor cij associated with qij; a lower bound lij on qij; and an upper bound uij on qij. network flow programming problems can be solved using conventional linear programming algorithms. however, the network flow format facilitates the use of much more computationally efficient algorithms that allow analysis of large problems with thousands of variables and constraints. n j j j=1 z = c x∑ ij j ia x b∑ ≤ jx 0≥ ijij qc∑∑ 0qq jiij =∑−∑ ijijij uql ≤≤ qij qij qij 1ij qij cij uij caution in applying simplified representations of the real world models are necessarily simplified representations of real world systems. many references discuss shortcomings of the mathematical representations used to model systems of rivers and reservoirs. rogers and fiering (1986) outlined institutional and technical reasons that water management practitioners were reluctant to apply formal mathematical optimization algorithms proposed by researchers. these reasons included deficiencies in databases, modeling inadequacies, agency resistance to change, and the fundamental insensitivity of many actual systems to wide variations in design choices. iich (2009) explored the limitations of network flow programming. mcmahon (2009) highlighted the various complexities of applying computer models and concluded that models can be quite useful despite their imperfections when considered in the context of data uncertainties, real-world operator experience, social priorities for water management, and externally imposed constraints on actual operational practice. powerful generalized software packages are playing increasingly important roles in water management. computer models greatly contribute to effective water management. however, models must be applied carefully with professional judgment and good common sense. model users must have a thorough understanding of the computations performed by the model and the capabilities and limitations of the model in representing the real world. generalized river/reservoir system models many hundreds of reservoir/river system models are described in the published literature. however, only a small number of these models fit the definitions of generalized and user-oriented presented at the beginning of this paper. many models are developed for a specific reservoir system rather than being generalized. most of the numerous reservoir system optimization models reported in the literature were developed in university research studies and have not been applied by model users other than the original model developers. under the sponsorship of the corps institute for water resources, wurbs (1994, 1995) inventoried generalized water management models in the categories of demand forecasting, water distribution systems, groundwater, watershed runoff, stream hydraulics, river and reservoir water quality, and reservoir/river system operations. wurbs (2005a) reviewed generalized reservoir/river system operations models in greater detail for the corps fort worth district. most of the models cited in these inventories were developed by government agencies in the united states and are in the public domain, meaning they texas water journal, volume 3, number 1 32 reservoir/river system management models reservoir/river system management models are available to interested model users without charge. public domain generalized modeling systems play important roles in many aspects of water management in the united states (wurbs 1998). of the many water-related models used in the united states, the hydrologic modeling system (hechms) and river analysis system (hec-ras) are probably applied most extensively. these and other models developed by the corps hydrologic engineering center are available at the website shown in table 1. hec-hms watershed precipitation-runoff and hec-ras river hydraulics modeling are combined with hec-ressim in the integrated corps water management system for modeling reservoir system operations as described later. however, most applications of hechms and hec-ras by government agencies and consulting firms are for urban floodplain delineation or design of urban stormwater management facilities. the number of agencies and individuals that model operations of major multipurpose reservoir systems is much smaller than the number of users of hec-hms, hec-ras, and various other generalized models used for other purposes. however, generalized reservoir system models are significantly contributing to effective river basin management. a hydrologic modeling inventory is maintained at texas a&m university in collaboration with the u.s. bureau of reclamation (bureau) at http://hydrologicmodels.tamu.edu/. the inventory is updated periodically, including an update during 2010. models are organized in various categories with summary descriptions provided for each model. the inventory includes the mike basin (river basin simulation model), california simulation model (calsim), modsim, riverware, and wrap models cited later in this paper. in addition to developing and maintaining the hydrologic modeling inventory, singh and frevert (2006) edited a book inventorying models focused primarily on generalized models of watershed hydrology but also several river/reservoir system management models, including riverware (zagona et al. 2006), modsim (labadie 2006), and wrap (wurbs 2006). the following review focuses on several of the generalized reservoir/river management modeling systems extensively applied by water management agencies and/or their consultants to support actual planning and/or operations decisions. the models cited below along with other similar models are discussed in more detail by wurbs (2005a). early models developed by the texas water development board the board has adopted the wrap modeling system, described later, for statewide and regional planning studies conducted in recent years (twdb 2012). wrap supports both the water rights system administered by the commission and the planning activities led by the water board. however, the water board has developed a number of other generalized models in the past. the board began development of a series of models in the 1960s in conjunction with formulation of the texas water plan. several generalized models, reflecting pioneering applications of network flow programming formulations of river/reservoir systems, evolved through various versions. river basin simulation model (simyld-ii), surface water resources allocation model (al-v), and multireservoir simulation and optimization model (sim-v) (martin 1983) incorporate a capacitated network flow formulation, presented earlier in this paper, solved with the out-of-kilter linear programming algorithm described by jensen and barnes (1980). simyld-ii provides capabilities for analyzing water storage and transfer within a multireservoir or multibasin system with the objective of meeting a set of specified demands in a given order of priority (twdb 1974). if sufficient water is not available to meet competing demands during a particular time interval, the shortage is assigned to the lowest priority demand node. simyld-ii also determines the firm yield of a single reservoir within a multireservoir system. an iterative procedure is used to adjust the demands at a reservoir in order to converge on its firm yield. the al-v and sim-v simulate and optimize the operation of an interconnected system of reservoirs, hydroelectric power plants, pump canals, pipelines, and river reaches (martin 1983). martin (1987) describes the surface storage and conveyance systems (monitor-i) model developed by the board to analyze complex surface water storage and conveyance systems operated for hydroelectric power, water supply, and low flow augmentation. these linear programming models use an iterative successive linear programming algorithm to handle nonlinearities associated with hydroelectric power and other features of the model. the decision variables are daily reservoir releases, water diversions, and pipeline and canal flows. the objective function to be maximized is an expression of net economic benefits. martin (1987) incorporated a dynamic programming algorithm in a modeling procedure for determining an optimal expansion plan for a water supply system. the optimization procedure determines the least-costly sizing, sequencing, and operation of storage and conveyance facilities over a specified set of staging periods. this board dynamic programmingbased model, called dynamic programming simulation model (dpsim-i), was combined with the previously al-v and sim-v models described above. these early board models, the original california department of water resources model cited in the next paragraph, and the original versions of hec-prescriptive reservoir model (prm) and modsim discussed later are all based on the same network flow programming solution algorithm originally developed for the board models. an early version http://hydrologicmodels.tamu.edu/ texas water journal, volume 3, number 1 33reservoir/river system management models reservoir/river system management models of wrap was also developed using the same algorithm, but another simulation approach was actually adopted for wrap (wurbs and yerramreddy 1994). the original solution algorithms in hec-prm and modsim were later replaced with much more computationally efficient network flow programming algorithms. models developed by the california department of water resources calsim consists of the generalized water resources integrated modeling system (wrims) combined with input datasets for the interconnected california state water project and federal central valley project. the california department of water resources in partnership with the bureau developed the wrims and calsim modeling system (draper et al. 2004) to replace an earlier california department of water resources model (chung and helweg 1985), which was based on the network flow programming algorithm developed for the water board models described above. the generalized wrims and calsim are designed for evaluating operational alternatives for large, complex river systems. the modeling system integrates a simulation language for defining operating criteria, a linear programming solver, and graphics capabilities. the monthly time step simulation model is based on a linear programming formulation that minimizes shortages in supplying delivery and storage targets with different priorities assigned to different targets. adjustment computations are performed after the linear programming solution each month to deal with nonlinear aspects of modeling complex system operations. a feature called the water resources engineering simulation language (wresl) was developed for the model to allow the user to express reservoir/river system operating requirements and constraints. time series data are stored using the hec-data storage system (dss) (hec-dss; 1995, 2009), which is also used with hec-ressim and wrap as well as other hec simulation models. hec-dss provides capabilities for plotting graphs and performing arithmetic operations and statistical analyses. models developed by federal agencies most of the large federal reservoirs in the united states were constructed and are operated by the corps or the bureau. the corps has more than 500 reservoirs in operation across the nation and plays a dominant role in operating large reservoir systems for navigation and flood control (johnson and dibuono 1994). the bureau operates about 130 reservoirs in the 17 western states (usbr 1992). the bureau water development program was originally founded upon constructing irrigation projects to support development of the western united states. the responsibilities of the 2 agencies evolved over time to emphasize comprehensive multipurpose water resources management. the bureau has constructed 5 reservoirs in texas (lakes travis, twin buttes, texana, choke canyon, and meredith), but these projects are now owned and operated by nonfederal agencies. the corps galveston district owns and operates the addicks and barker flood control dams in houston. the corps tulsa district owns and operates lakes texoma, pat mayse, and truscott in the red river basin. the fort worth district owns and operates 25 multipurpose reservoirs located in several texas river basins. the total of 30 corps reservoirs account for about 3% of the conservation storage capacity and 75% of the flood control capacity of the 190 major reservoirs in texas containing 5,000 acre-feet or more storage capacity. international falcon and amistad reservoirs on the rio grande are owned and operated by the boundary commission and contain 14% of both the conservation and flood control capacity of the 190 major texas reservoirs (wurbs 1987; twdb 2011). the corps and the bureau developed many models for specific reservoir systems located throughout the united states during the 1950s−1970s (wurbs 1996, 2005a). many of these system-specific models have since been replaced with generalized models. the bureau currently uses modsim and riverware, described later, and several remaining system-specific models. generalized corps models are noted as follows, and hec-ressim is described in more detail later in this paper. corps of engineers generalized modeling systems the corps hydrologic engineering center maintains a suite of generalized simulation models that are widely applied by water agencies, consulting firms, and universities throughout the united states and the world as well as within the corps. the different hec models deal with watershed hydrology, river hydraulics, flood economics, water quality, and statistical analysis, as well as river/reservoir system operations. the corps water management system (cwms) is the automated information system used by the corps nationwide to support real-time operations of flood control, navigation, and multipurpose reservoir systems (fritz et al. 2002). the fort worth and tulsa districts are responsible for implementing the cwms in texas. the cwms is an integrated system of hardware and software that compiles and processes hydrometeorology, watershed, and project status data in real-time. a map-based user interface facilitates modeling and evaluation of river/reservoir system operations. corpsview, a spatial visualization tool developed by the corps hydrologic engineering center, based on commercially available geographic information system software, provides a direct interface to geographic information system products and associated attribute information. the cwms combines data acquisition/management texas water journal, volume 3, number 1 34 reservoir/river system management models reservoir/river system management models tools with simulation models, which include hec-hms, hec-ressim, hec-ras, and hec-flood impact analysis (fia) (fritz et al. 2002). the lower colorado river authority of texas was the first non-corps agency to adopt the integrated cwms (ickert and luna 2004) and has used the cwms to model flood control operations of the lower colorado river authority reservoir system. the component generalized simulation modeling systems (hec-hms, hec-ras, hec-ressim, and hec-fia) incorporated in the cwms are widely applied by various entities in texas, like elsewhere, as separate individual models. the hec-5 simulation of flood control and conservation systems model (hec 1998) has been used since the 1970s in many corps and non-corps studies, including studies of river basins in texas, which have included investigations of storage reallocations and other operational modifications at existing reservoirs, feasibility studies for proposed new projects, and support of real-time operations. the hec plans to eventually replace hec-5 with hec-ressim (hec 2007). hec-5 is no longer in development or supported but is still available at the hec website (table 1) and continues to be applied by various model users. hec-5 simulates the operation of multipurpose reservoir systems for inputted sequences of unregulated streamflows and reservoir evaporation rates using a variable time interval. a monthly or weekly computational time step may be used during periods of normal or low flows in combination with a daily or hourly time step during flood events. hec-5 makes release decisions to empty flood control pools and to meet user-specified diversion and instream flow targets based on reservoir storage levels and streamflows at downstream locations. flood routing options include modified puls, muskingum, working r&d, and average lag. optional analysis capabilities include computation of expected annual flood damages and water supply firm yields. the hec-prm was developed in conjunction with studies of reservoir systems in the missouri and columbia river basins. later applications include studies of systems in california, florida, and panama (draper et al. 2003; watkins et al. 2004). hec-prm is a network flow programming model designed for prescriptive applications involving minimization of a cost-based objective function. prescriptive implies that the model automatically determines the best plan, as contrasted with descriptive models that demonstrate what will happen if a specified plan is adopted. reservoir release decisions are made based on minimizing costs associated with convex piecewise linear penalty functions associated with various purposes, including hydroelectric power, recreation, water supply, navigation, and flood control. schemes have also been devised to include noneconomic components in the objective function. hec-prm applications to date have used a monthly time interval. the corps has applied hec-5, hec-ressim, and most recently riverware, to most or all of the major river basins of texas. however, in the past corps applied the super model most extensively in texas. applications of super as well as hec-5, hec-ressim, and riverware have included multipurpose reservoir system operations but have focused on flood control (wurbs 2005a). the corps’ southwestern division developed the super model, and the division office in dallas and the fort worth, tulsa, and little rock district offices of the southwestern division have applied the model (hula 1981). the model is generalized for application to any river basin but is designed for application within the corps. super is maintained and continues to be applied by the fort worth district but is being phased out and replaced with riverware (avance et al. 2010). super simulates the daily sequential regulation of a multipurpose system of reservoirs and the corresponding hydrologic and economic impacts. models developed by international research and consulting organizations the danish hydraulic institute (http://www.dhi.dk/) has developed a suite of models dealing with various aspects of hydraulics, hydrology, and water resources management. mike basin, the reservoir/river system component of the danish hydraulic institute family of software, integrates geographic information system capabilities with modeling river basin management. mike basin simulates multipurpose, multireservoir systems based on a network formulation of nodes and branches. time series of monthly inflows to the stream system are provided as input. various options are provided for specifying reservoir operating rules and allocating water between water users. the water evaluation and planning system developed by the stockholm environmental institute (http://www.weap21. org/) is a reservoir/river/use system water balance accounting model that allocates water from surface water and groundwater sources to different types of demands. the modeling system is designed as a tool for maintaining water balance databases, generating water management scenarios, and performing policy analyses. the operational analysis and simulation of integrated systems (oasis) model developed by hydrologics, inc. (http:// www.hydrologics.net/) is based on linear programming. reservoir operating rules are expressed as goals and constraints defined by the model user, using a patented scripting language that is similar to the wresl in the wrims-calsim discussed earlier. http://www.dhi.dk/ http://www.weap21.org/ http://www.weap21.org/ http://www.hydrologics.net http://www.hydrologics.net texas water journal, volume 3, number 1 35reservoir/river system management models reservoir/river system management models selected state-of-the-art generalized modeling systems the 4 user-oriented generalized modeling systems in table 1 have been adopted for the following, more focused review of capabilities for modeling river system development and management. hec-ressim, riverware, modsim, and wrap provide comprehensive capabilities for a broad spectrum of river/reservoir system management decision-support applications. they are distinctly different from each other. however, as a group, the 4 alternative modeling systems are representative of the current state-of-the-art of professional practice in the united states in analyzing complex river/reservoir system water management problems. all 4 of the modeling systems have been applied in texas and in other countries. wrap has been used extensively in texas. hec-ressim, modsim, and riverware have been used extensively in other states in the united states. the 4 modeling systems were developed and are maintained by water agencies and university researchers specifically for application by model users other than the original developers and are accessible to water management professionals throughout the world. the hec-ressim, modsim, and wrap software and documentation can be downloaded free-of-charge at the websites listed in table 1. riverware is a proprietary software product, which is available for a licensing fee as described at the website shown in table 1. the 4 software packages all run on personal computers operating under microsoft windows, and all have also been executed with other computer systems as well. riverware was developed primarily for unix workstations though it also is used on personal computers with microsoft windows. the 4 alternative modeling systems and their predecessors have evolved through multiple versions over 20 or more years of research and development, with new versions being released periodically. the modeling capabilities provided by each of the models have changed significantly over time and continue to be improved and expanded. hydrologic engineering center reservoir simulation model the corps hydrologic engineering center initiated development of hec-ressim in 1996. hec-ressim was first released to the public in 2003 with the intention of eventually replacing hec-5, which has been extensively applied for more than 30 years. documentation consists of an users manual (hec 2007) and other information found at the website in table 1. hec-ressim is designed for application either independently of the previously discussed cwms or as a component thereof. hec-ressim is comprised of a graphical user interface, a computational program to simulate reservoir operation, data management capabilities, and graphics and reporting features. multipurpose, multireservoir systems are simulated using algorithms developed specifically for the model rather than formal mathematical programming (optimization) methods such as linear programming. meeting the needs of corps reservoir control personnel for real-time decision support has been a governing objective in developing hec-ressim. the model is also applicable in planning studies. the full spectrum of multipurpose reservoir system operations can be modeled with particularly detailed capabilities provided for modeling flood control operations. computations are proceeded by control points generally in an upstream-to-downstream sequence. the user-selected computational time step may vary from 15 minutes to one day. streamflow routing options include muskingum, muskingum-cunge, modified puls, and other methods. streamflow hydrographs provided as input to hec-ressim can come from any source, including being generated with the hechms. multireservoir systems, with each reservoir having multiple outlet structures, can be modeled. release decisions are based on specified storage zones defined by elevation and a set of rules that specify the goals and constraints governing releases when the storage level falls within each zone. riverware reservoir and river operation modeling system the bureau and tennessee valley authority jointly sponsored development of riverware at the center for advanced decision support for water and environmental systems of the university of colorado (zagona et al. 2001; zagona et al. 2006). riverware development efforts date back to the mid-1990s, building on earlier modeling systems developed at the center for advanced decision support for water and environmental systems that extend back to the mid-1980s. the corps fort worth district recently sponsored addition of flood control features to riverware (avance et al. 2010). riverware provides the model user with a kit of software tools for constructing a model for a particular river/reservoir system and then running the model. the model-building tools include a library of modeling algorithms, solvers, and a language for coding operating policies. the tools are applied within a point-and-click graphical user interface. riverware routes inflows, provided as input, through a system of reservoirs and river reaches. the primary processes modeled are volume balances at reservoirs, hydrologic routing in river reaches, evaporation and other losses, diversions, and return flows. optional features are also provided for modeling groundwater interactions, water quality, and electric power economics. texas water journal, volume 3, number 1 36 reservoir/river system management models reservoir/river system management models computational algorithms for modeling reservoir/river system operations are based on 3 alternative approaches: (1) pure simulation, (2) rule-based simulation, and (3) optimization combining linear programming with preemptive goal programming. pure simulation solves a uniquely and completely specified problem. in rule-based simulation, certain information is generated by prioritized policy rules specified by the model user. preemptive goal programming considers multiple prioritized objectives based on multiple linear programming solutions (eschenbach et al. 2001). as additional goals are considered, the optimal solution of a higher priority goal is not sacrificed to optimize a lower priority goal. the tennessee valley authority applies riverware in optimizing the daily and hourly operation of the system of multipurpose reservoirs and hydroelectric power plants. the bureau has used riverware as a long-term planning model and midterm operations model of the colorado river as well as a daily operations model for both the upper and lower colorado regions. the bureau has also applied the model in the rio grande, yakima, and truckee river basins. the lower colorado river authority has applied riverware in daily time step modeling of water supply operations of the 6 lower colorado river authority reservoirs on the colorado river of texas (zagona et al. 2010). the tarrant regional water district in the upper trinity river basin of texas, lower neches river authority of texas, and corps fort worth district are included among the other entities that have applied riverware to various river basins in the western and southwestern united states (avance et al. 2010). cient. the objective function coefficients are factors entered by the model user to specify relative priorities that govern operating decisions. the coefficients could be unit monetary costs or more typically numbers without physical significance other than simply reflecting relative operational priorities. an iterative algorithm deals with nonlinearities such as evaporation and hydropower computations in the linear programming model. the linear programming problem is solved for each individual time interval without considering future inflows and future decisions. monthly, weekly, or daily time steps may be adopted for longterm planning, medium-term management, and short-term operations. a lag flow routing methodology is used with a daily time step. the user assigns relative priorities for meeting diversion, instream flow, hydroelectric power, and storage targets, as well as lower and upper bounds on the flows and storages computed by the model. optional capabilities are also provided for simulating salinity and conjunctive use of surface water and groundwater. water rights analysis package modeling system development of wrap at texas a&m university began in the late 1980s sponsored by a cooperative research program of the u.s. department of the interior and texas water resources institute. wrap has been greatly expanded since 1997 under the auspices of the commission in conjunction with implementing a statewide water availability modeling (wam) system (wurbs 2005b). the board, texas water resources institute, the corps fort worth district, and other agencies have also sponsored improvements to wrap. the software and documentation (wurbs 2009, 2011a, 2011b, 2011c; wurbs and hoffpauir 2011) are available at the website in table 1. wrap is generalized for application to river/reservoir systems located anywhere in the world, with model users developing input datasets for the particular river basins of concern. for studies in texas, the publicly available wam system datasets can be altered as appropriate to reflect proposed water management plans of interest, which could involve changes in water use or reservoir/river system operating practices, construction of new facilities, or other water management strategies. the commission’s wam system consists of the generalized wrap along with input datasets for the 23 river basins of texas that include naturalized streamflows at about 500 gaged sites, watershed parameters for distribution of these flows to more than 12,000 ungaged locations, 3,450 reservoirs, water use requirements associated with about 8,000 water rights permits reflecting 2 different water rights systems, 2 international treaties, and 5 interstate compacts. wrap simulates water resources development, managemodsim river basin management decision support system modsim is a general purpose reservoir/river system simulation model based on network flow linear programming developed at colorado state university (labadie 2006; labadie and larson 2007). the model has evolved through many versions, with initial development dating back to the 1970s. the bureau has been a primary sponsor of continued model improvements at colorado state university. university researchers in collaboration with various local, regional, and international water management agencies have applied modsim in studies of a number of reservoir/river systems in the western united states and throughout the world. the software, users manual, tutorials, and papers describing various applications are provided at the website in table 1. modsim provides a graphical user interface and a general framework for modeling. a river/reservoir system is defined as a network of nodes and links. the objective function (equation 4) consists of the summation over all links in the network of the flow in each link multiplied by a priority or cost coeffitexas water journal, volume 3, number 1 37reservoir/river system management models reservoir/river system management models ment, regulation, and use in a river basin or multibasin region under a priority-based water allocation system. in wrap terminology, a water right is a set of water use requirements, reservoir storage and conveyance facilities, operating rules, and institutional arrangements for managing water resources. streamflow and reservoir storage are allocated among users based on specified priorities, which can be defined in various ways. simulation results are organized in optional formats, including entire time sequences, summaries, water budgets, frequency relationships, and various types of reliability indices. simulation results may be stored as dss files accessed with hec-dssvue (a program used to manipulate data from hec-dss databases) for plotting and other analyses (hec 1995, 2009). the wrap/wam system is applied by water rights permit applicants in assessing reliabilities of proposed water management/use strategies and projects and the impacts on other water users. the commission staff use the modeling system to evaluate permit applications. the board, regional planning groups, and the planning groups’ consultants apply the modeling system in regional and statewide planning studies. river authorities and other water management entities also apply wrap for various internal planning and management purposes. wrap modeling capabilities that have been routinely applied in the texas wam system consist of using a hydrologic period-of-analysis of about 60 years and a monthly computational time step to perform water availability and reliability analyses for municipal, industrial, and agricultural water supply; environmental instream flow; hydroelectric power generation; and reservoir storage requirements (wurbs 2011a, 2011b, 2011c). recently developed additional wrap modeling capabilities include: short-term conditional reliability modeling; daily time step modeling capabilities that include flow forecasting and routing methods and disaggregation of monthly flows to daily; simulation of flood control reservoir system operations; and salinity simulation (wurbs 2009, wurbs and hoffpauir 2011, wurbs et al. 2012). comparative summary of modeling capabilities hec-ressim, riverware, modsim, wrap, and other similar models provide flexible capabilities for analyzing multipurpose river/reservoir system operations. the models are water accounting systems that compute reservoir storages and releases and streamflows for each time step of a specified hydrologic period-of-analysis for a particular scenario of water resources development, management, allocation, and use. though fundamentally similar, the 4 modeling systems differ significantly in their organizational structure, computational algorithms, user interfaces, and data management mechanisms. the alternative modeling systems provide general frameworks for constructing and applying models for specific systems of reservoirs and river reaches. each of the generalized modeling systems is based upon its own set of modeling strategies and methods and has its own terminology or modeling language. table 2. alternative development frameworks. modeling system programming language computational approach computational time step hec-ressim java ad hoc 15 minutes to day riverware c++ ad hoc and lp hour to year modsim c++.net, basic.net network lp month, week, day wrap fortran ad hoc month, day, other types of applications water development purposes are a key consideration in formulating a modeling approach. the distinction between flood control and conservation purposes such as hydroelectric power and water supply is particularly important. hydrologic analyses of floods focus on storm events, and analyses of droughts are long-term time series oriented. modeling flow attenuation is important for flood control. evaporation is important for conservation operations. flood control operations are typically modeled using a daily or smaller time step. modeling of conservation operations is sometimes based on a daily interval, but monthly or weekly time steps are more common. all 4 of the alternative modeling systems are designed to simulate flood control, hydropower, water supply, environmental flows, and other reservoir management purposes. however, whereas development of the other 3 models was motivated primarily by conservation purposes, hec-ressim texas water journal, volume 3, number 1 38 reservoir/river system management models reservoir/river system management models is flood control oriented. hec-ressim is limited to daily or shorter time steps and provides greater flexibility for flood routing and simulating flood control operations. riverware and wrap have been recently expanded to increase their flexibility for modeling flood control. in addition to the basic water accounting computations, the modeling systems include various optional features for reliability and frequency analyses, economic evaluations, water quality, and surface/groundwater interactions. these features may involve either computations performed during the simulation or additional post-simulation computations performed using simulation results. wrap has particularly comprehensive options for reliability and frequency analyses. the relative priorities represented by the objective function coefficients in modsim and the riverware linear programming option may optionally be economic costs or benefits. modsim and wrap simulate salinity. riverware options include various water quality constituents. these surface water models have no capabilities for detailed modeling of groundwater. however, groundwater sources and channel losses are included in each of the 4 models. surface water and groundwater interactions have been approximated in various ways. modsim and riverware have been linked with the u.s. geological survey modular finite-difference flow model (modflow) groundwater model. the development board has investigated approaches for linking wrapbased surface water availability models and modflowbased groundwater availability models (hdr 2007). as noted earlier in this paper, models can be categorized as being prescriptive or descriptive. hec-ressim and wrap are purely descriptive simulation models. modsim and riverware are basically descriptive simulation models but include features that facilitate a more prescriptive orientation. modsim is based on a network flow optimization formulation. riverware includes an optional goal programming feature. computational structure the term ad hoc in table 2 refers to computational strategies developed specifically for a particular model, as contrasted with linear programming, which is a generic algorithm incorporated in numerous models. hec-ressim and wrap are organized based upon ad hoc model-specific computational frameworks. modsim is based on network flow linear programming. riverware has 2 alternative solution options based on ad hoc algorithms and a third option that uses linear programming. the linear programming-based models have additional ad hoc computational algorithms used along with their linear programming solver, but the linear programming solver accounts for a major portion of the computations. repetitive loops and iterative solution procedures are incorporated in all of the models. iterative algorithms are required for evaporation and hydropower computations. evaporation depends upon end-of-period storage, but end-of-period storage depends upon evaporation. reservoir storage volume versus surface area and elevation relationships are nonlinear. in the linear programming models, the entire linear programming solution of the whole system is repeated iteratively. with the ad hoc simulation procedures, the computations for an individual reservoir are repeated iteratively. hec-ressim and riverware generally follow an upstreamto-downstream progression in considering requirements for reservoir storage and releases, diversions, and hydropower generation. wrap and modsim simulation computations are governed by user-specified priorities in considering water management requirements. the wrap and modsim priority-based frameworks are beneficial in modeling complex water allocation systems. riverware includes an optional prescriptive optimization feature that combines linear programming and goal programming. computations are performed simultaneously for all the time intervals. thus, model results show a set of reservoir storages and releases that minimize or maximize a defined objective function, assuming all future streamflows, known as release decisions, are made simultaneously during each period. the hec-prm and many other optimization models reported in the research literature also adopt this approach of optimizing an objective function while simultaneously considering all time steps of the entire period-of-analysis. since the future is not known in the real world, these models reflecting knowledge of the future provide an upper-limit scenario on what can be achieved. with the exception of options for short-term flow forecasting, hec-ressim, modsim, wrap, and the simulation options in riverware step through time-performing computations at each individual time step. thus, operating decisions are not affected by future inflows and future operating decisions. modeling environment and interface features a model for a particular reservoir/river system consists of a generalized modeling system and an input dataset describing the reservoir/river system. the generalized modeling system provides an environment or framework for assembling input data, executing the simulation computations, and organizing, analyzing, and displaying results. each of the 4 modeling systems has its own unique framework within which the user constructs and implements a model for a particular reservoir/river system. with hec-ressim, various elements provided by watershed setup, reservoir network, and simulation modules are used to construct and execute a model. modsim is based on network flow programming with a reservoir/river system represented by a network of nodes and links with information compiled through an object-oriented interface. wrap is about managing protexas water journal, volume 3, number 1 39reservoir/river system management models reservoir/river system management models grams, files, input records, and results tables, with water management and use practices being described in the terminology of water rights. riverware has an object/slot-based environment for building models within the context of object-oriented programming and provides 3 optional solutions. the user interfaces of the alternative models reflect both similarities and significant differences. hec-ressim, riverware, and modsim provide sophisticated graphical user interfaces with menu-driven editors for entering and revising input data and displaying simulation results in tables and graphs. they also have features allowing a river/reservoir system schematic to be created by selecting and connecting icons. wrap has a simple user interface for managing programs and files, which relies upon standard microsoft office programs for entering, editing, and displaying data. wrap as well as hec-ressim connect with and rely upon graphics capabilities of the hecdss. geographic information system tools are included in all 4 of the modeling systems. the compiled executable software products were developed in the programming languages shown in table 2. hec-ressim, modsim, and riverware also have their own simulation rule language to allow users to express reservoir/river system operating requirements as a series of statements with if-then-else and similar constructs. data management efficiency, effective communication of results, documentation, and ease-of-use are important factors in applying a modeling system. documentation includes both instructions for using the software and detailed technical documentation for understanding modeling methods. the software should be as near error-free as possible; assuming error-free software may be an idealistic goal yet to be achieved. dealing with errors introduced by users in model input data is important. therefore, the modeling systems contain various mechanisms for detecting and correcting blunders and inconsistencies in input data. the organizations and individuals who originally developed the 4 modeling systems continue to improve the models and support their application. hec-ressim, modsim, and wrap software and manuals are available free-of-charge at the websites listed in table 1. licensing fees and training required to implement riverware are described at its website. riverware is designed for unix workstations but is also used on personal computers with microsoft windows. the other 3 modeling systems are usually executed on personal computers with microsoft windows but can be applied with other computer systems as well. conclusions the evolution of computer modeling of systems of rivers and reservoirs that began in the 1950s is still underway and is expected to continue. modeling systems continue to grow in response to advances in computer technology and intensifying water management and associated decision-support needs. the published literature on modeling reservoir systems is massive and complex and is focused largely on mathematical optimization methods. generalized modeling systems dominate practical applications. hec-ressim, riverware, modsim, wrap, and other similar models, though continually improved and expanded, are well established and significantly contributing to water management in texas as well as throughout the united states and the world. generalized modeling systems reflect the types of applications that motivated their development. hec-ressim serves as the reservoir system operations component of the cwms implemented in the corps district offices nationwide to support real-time operations of multipurpose reservoirs and flood control and navigation projects. hec-ressim is also used in planning studies. riverware was developed as a partnership between center for advanced decision support for water and environmental systems, the bureau, and the tennessee valley authority. the tennessee valley authority uses hec-ressim to support real-time hydroelectric power system operations within the setting of multipurpose reservoir system operations. the bureau applies riverware for both long-term planning and short-term operational planning for its multipurpose reservoir systems. the network flow programming-based modsim was developed at colorado state university in collaboration with the bureau and has been applied in studies both in the united states and abroad. wrap supports statewide and regional planning and water rights regulatory activities in texas that require detailed modeling of diverse and complex institutional water allocation arrangements and reservoir/river system management practices. hec-ressim, riverware, modsim, and wrap provide general frameworks for constructing and applying models for specific systems of reservoirs and river reaches. each of these 4 generalized modeling systems is based upon its own set of data management and computational techniques and has its own modeling terminology or language structure, but they all 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2005a. comparative evaluation of generalized river/reservoir system models [internet]. college station (tx): texas water resources institute. 199 p. technical report no. 282. prepared for the fort worth district of the u.s. army corps of engineers. available from: http:// twri.tamu.edu/reports/2005/tr282.pdf wurbs ra. 2005b. texas water availability modeling system. journal of water resources planning and management. 131(4):270-279. wurbs ra. 2006. water rights analysis package (wrap) modeling system. in: singh vp, frevert dk, editors. watershed models. boca raton (fl): crc press, taylor & francis, p. 593-612. wurbs ra. 2009. salinity simulation with wrap [internet]. college station (tx): texas water resources institute. 84 p. technical report no. 317. sponsored by the texas commission on environmental quality. available from: http://twri.tamu.edu/reports/2009/tr317.pdf wurbs ra. 2011a. water rights analysis package (wrap) modeling system reference manual [internet]. 8th ed. college 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wurbs ra, yerramreddy ak. 1994. reservoir/river system analysis models: conventional simulation versus network flow programming. international journal of water resources development. 10(2):131-142. wurbs ra, hoffpauir rj, schnier st. 2012 (in press). application of expanded wrap modeling capabilities to the brazos wam [internet]. college station (tx): texas water resources institute. 334 p. technical report no. 389. prepared for the texas commission on environmental quality and brazos river authority. zagona ea, fulp tj, shane r, magee t, goranflo hm. 2001. riverware: a generalized tool for complex reservoir system modeling. journal of the american water resources association. 37(4):913-929. zagona ea, magee t, goranflo hm, fulp t, frevert dk, cotter jl. 2006. riverware. in: singh vp, frevert dk, editors. watershed models. boca raton (fl): crc press, taylor & francis. p. 527-548. zagona e, kandl e, carron j, bowser s. 2010. water accounting and allocation in riverware. proceedings of 2nd joint federal interagency conference on sedimentation and hydrologic modeling, 2010 june 27–july 1. las vegas, nv. boulder (co): the center for advanced decision support for water and environmental systems, university of colorado at boulder. available from: http://cadswes.colorado. edu/pdf/riverware/10f_zagona_03_01_10.pdf http://twri.tamu.edu/reports/2005/tr282.pdf http://twri.tamu.edu/reports/2005/tr282.pdf http://twri.tamu.edu/reports/2009/tr317.pdf http://twri.tamu.edu/reports/2011/tr255.pdf http://twri.tamu.edu/reports/2011/tr255.pdf http://twri.tamu.edu/reports/2011/tr256.pdf http://twri.tamu.edu/reports/2011/tr256.pdf http://twri.tamu.edu/reports/2011/tr283.pdf http://twri.tamu.edu/reports/2011/tr283.pdf http://twri.tamu.edu/reports/2011/tr403.pdf http://twri.tamu.edu/reports/2011/tr403.pdf http://cadswes.colorado.edu/pdf/riverware/10f_zagona_03_01_10.pdf http://cadswes.colorado.edu/pdf/riverware/10f_zagona_03_01_10.pdf 3.1cover_caddo.pdf wurbs_final_8.21 floods in central texas, september 7–14, 2010 texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 3, number 1 2012 texas water journal http://texaswaterjournal.org editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texas water journal volume 3, number 1 2012 issn 2160-5319 texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas agrilife research, the texas agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources copy and social media editor forrest burnson the university of texas at austin school of journalism cover photo: located in far east texas and stretching into louisiana, caddo lake is known for its extensive forests of baldcypress trees draped with spanish moss. this famous lake is home to a rich ecosystem and a wide variety of wildlife. the cover photo was taken during normal water levels, but in 2011 the lake’s levels dropped significantly during the drought. photo credit: texas water resources institute http://texaswaterjournal.org http://texaswaterjournal.org texas water journal, volume 3, number 1 14 texas water resources institute texas water journal volume 3, number 1, pages 14 –25, july 2012 floods in central texas, september 7–14, 2010 abstract: severe flooding occurred near the austin metropolitan area in central texas september 7–14, 2010, because of heavy rainfall associated with tropical storm hermine. the u.s. geological survey, in cooperation with the upper brushy creek water control and improvement district, determined rainfall amounts and annual exceedance probabilities for rainfall resulting in flooding in bell, williamson, and travis counties in central texas during september 2010. we documented peak streamflows and the annual exceedance probabilities for peak streamflows recorded at several streamflow-gaging stations in the study area. the 24-hour rainfall total exceeded 12 inches at some locations, with one report of 14.57 inches at lake georgetown. rainfall probabilities were estimated using previously published depth-duration frequency maps for texas. at 4 sites in williamson county, the 24-hour rainfall had an annual exceedance probability of 0.002. streamflow measurement data and flood-peak data from u.s. geological survey surface-water monitoring stations (streamflow and reservoir gaging stations) are presented, along with a comparison of september 2010 flood peaks to previous known maximums in the periods of record. annual exceedance probabilities for peak streamflow were computed for 20 streamflow-gaging stations based on an analysis of streamflow-gaging station records. the annual exceedance probability was 0.03 for the september 2010 peak streamflow at the geological survey’s streamflow-gaging stations 08104700 north fork san gabriel river near georgetown, texas, and 08154700 bull creek at loop 360 near austin, texas. the annual exceedance probability was 0.02 for the peak streamflow for geological survey´s streamflowgaging station 08104500 little river near little river, texas. the lack of similarity in the annual exceedance probabilities computed for precipitation and streamflow might be attributed to the small areal extent of the heaviest rainfall over these and the other gaged watersheds. keywords: flood, hermine, texas, 2010, annual exceedance probability 1u.s. geological survey, austin, texas karl e. winters, p.e.1 citation: winters ke. 2012. floods in central texas, september 7–14, 2010. texas water journal. 3(1):14-25. available from: https:// doi.org/10.21423/twj.v3i1.3292. © 2012 karl e. winters. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v3i1.3292 https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 3, number 1 15 introduction severe flooding occurred in the greater austin metropolitan area in central texas september 7–14, 2010 because of heavy rainfall associated with tropical storm hermine. storm totals exceeded 12 inches near georgetown, texas. more than 10 inches fell in parts of austin, texas. numerous homes were damaged along brushy creek and lake creek in williamson county (rasmussen 2010). flood-related deaths were reported in austin, georgetown, and killeen (associated press 2010). one of these deaths occurred as 2 vehicles were swept into bull creek at farm road 2222 in austin (austin american-statesman 2010). the u.s. geological survey, in cooperation with the upper brushy creek water control and improvement district, determined rainfall amounts and annual exceedance probabilities for rainfall resulting in flooding in central texas in bell, williamson, and travis counties in september 2010. they documented peak streamflows and the annual exceedance probabilities for peak streamflows measured at several geological survey’s streamflow-gaging stations in the study area (figure 1). purpose and scope this report documents tropical storm hermine-associated rainfall during september 7–8, 2010, and runoff during september 7–14, 2010, near austin, and selected statistical characteristics of these data. rainfall and runoff in bell, travis, and williamson counties in central texas are described. the report gives rainfall data from various sources and estimates annual exceedance probabilities for 24-hour rainfall totals at selected stations for september 7–8, 2010. the report presents hyetographs of rainfall data collected from 2 rain gages near georgetown. it documents stage (height of the water surface in a stream above an established datum), streamflow, and mean velocity measurements made during the flood along with peak streamflows computed by the slope-area indirect method. the report presents peak stage and streamflow data for selected geological survey streamflow-gaging stations along with the estimated annual exceedance probabilities for peak streamflow for selected gages. conditions leading to the flood as tropical storm hermine approached the texas gulf coast on september 3, 2010, rainfall of about 1 to 2 inches fell in the study area, with the larger amounts falling in central and western travis county. an additional quarter-inch fell near the travis-williamson county line on september 4. no measurable precipitation fell during september 5–6. tropical storm hermine made landfall about 30 miles south of floods in central texas, september 7–14, 2010 brownsville, texas on september 6 at 9 pm with peak winds of 69 miles per hour and a minimum pressure of 989 millibars. with a forward speed of 18 miles per hour, the center of circulation reached san antonio, texas at 1 pm september 7. light rain (about 0.14 inch per hour) fell between 4:30 am and 6 pm on september 7. the heaviest rain fell between 6 pm september 7 and 4 am on september 8. during this period, rainfall rates were as much as 1 inch per hour in parts of williamson county. rainfall during the 24-hour period ending september 8 at 6 am exceeded 12 inches at some locations in the study area, with one report of 14.57 inches at lake georgetown. rainfall quickly diminished after 6 am september 8 as tropical storm hermine moved out of the study area (nws 2010). widespread flooding occurred september 7–14, 2010. rainfall depths and annual exceedance probabilities rainfall depth contours were determined using the national weather service-gridded rainfall data (nws 2010) for the 24-hour period ending at 6 am september 8, 2010. these data are based on next generation weather radar estimates (nws 2010). the data have a spatial resolution of about 2.5 miles (4 kilometers). the 24-hour rainfall totals are shown in figure 2. rainfall data collected by upper brushy creek water control and improvement district (dustin mortensen, civil engineer, freese and nichols, inc., written communication 2010), geological survey (usgs 2012), and 2 local airport stations (faa 2012) were used to verify the isohyetal contours (jain and singh 2005) derived from the national weather servicegridded rainfall data. rainfall data collected by the geological survey were measured at selected geological survey surfacewater monitoring stations (table 1). the 24-hour rainfall totals for most of the stations listed in table 1 compare favorably with the isohyetal contours of national weather servicegridded rainfall data shown in figure 2. however, the 24-hour totals recorded by 4 of the water control and improvement district rain gages (sites 46, 51, 54, and 56) near round rock, texas (figures 1 and 2), differed appreciably from the national weather service-gridded rainfall data (figure 2). these sites are where the isohyetal contours are close together, indicating that large differences in rainfall amounts occurred over a small area. sites 51, 54, and 56 are less than 5 miles apart and recorded similar 24-hour rainfall totals (0.91, 0.98, and 0.91 inches), respectively, indicating that the national weather service-gridded rainfall totals might not be accurate near these gages. the largest rainfall totals for the 24-hour period ending 6 am september 8, 2010 (more than 12 inches), were measured west of georgetown, at sites 5, 42, 49, and 58 (rain texas water journal, volume 3, number 1 16                   -97°30' -98° 31° 31° 30°30' 30°30' -97°30' -98°    explanation 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 4849 50 51 52 53 54 55 56 57 58 59 texas study area 0 10 20 0 10 20 miles kilometers  base from u.s. geological survey digital data albers equal area conic projection north american datum of 1983 standard parallel: 29.5 standard parallel: 45.5 longitude of central meridian: -96 latitude of projection origin: 23 station and site identifier ubcwcid dam and raingage (table 1)38 u.s. geological survey streamgage (tables 2 and 3)9 u.s. geological survey lake gage (table 3)5 u.s. geological survey (table 1)rain gage10 airport rain gage (table 1)59 brownsville san antonio       area enlarged 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37                                                                                    b ell c o u n ty tr av is co un ty williamson county  figure 1. map showing the locations of selected rain gages, reservoir gages, streamflow-gaging stations, and upper brushy creek water control improvement district dams in the study area of bell, williamson, and travis counties, texas. floods in central texas, september 7–14, 2010 texas water journal, volume 3, number 1 17                   -97°30' -98° 31° 31° 30°30' 30°30' -97°30' -98°    b ell c o u n ty travis county line of 24-hour total rainfall, in inches interval 1 inch explanation 12 12 1 0 8 6 4 2 1 0 8 6 4 2 8 6 4 8 6 12 texas study area 0 10 20 0 10 20 miles kilometers  base from u.s. geological survey digital data albers equal area conic projection north american datum of 1983 standard parallel: 29.5 standard parallel: 45.5 longitude of central meridian: -96 latitude of projection origin: 23 wil liam son cou nty figure 2. map showing the 24-hour total rainfall ending 6 am september 8, 2010, in bell, williamson, and travis counties, texas (modified from nws 2010). floods in central texas, september 7–14, 2010 texas water journal, volume 3, number 1 18 table 1. rainfall totals and associated annual exceedance probabilities based on depth-duration frequency of rainfall by asquith and roussel (2004). [--, not applicable; nd, not determined; upper bushy creek water control and improvement district (ubcwcid); u.s. army corps of engineers (usace)] rainfall depth (inches) site number (fig. 1) station number station name 24-hr period ending 6 am 9/8/2010 sliding 24-hr maximum1 annual exceedance probability 5 08104650 lake georgetown near georgetown, texas2 12.07 12.66 0.002 8 08105095 berry creek at airport road near georgetown, texas2 11.43 11.45 0.003 10 08105600 granger lake near granger, texas2 0.47 0.64 -13 08154700 bull creek at loop 360 near austin, texas2 9.67 9.77 0.008 38 -ubcwcid dam 13 9.8 9.84 0.008 39 -ubcwcid dam 23 9.73 9.84 0.008 40 -ubcwcid dam 33 11.61 11.81 0.003 41 -ubcwcid dam 43 10.87 10.91 0.004 42 -ubcwcid dam 53 12.16 12.45 0.002 43 -ubcwcid dam 63 nd4 nd nd 44 -ubcwcid dam 73 10.67 10.79 0.005 45 -ubcwcid dam 83 11.02 11.26 0.004 46 -ubcwcid dam 93 1.77 1.97 -47 -ubcwcid dam 113 6.73 7.09 0.036 48 -ubcwcid dam 123 10.51 10.94 0.004 49 -ubcwcid dam 13a3 12.01 12.28 0.002 50 -ubcwcid dam 143 6.42 6.97 0.038 51 -ubcwcid dam 153 0.91 1.14 -52 -ubcwcid dam 163 4.96 5.51 0.143 53 -ubcwcid dam 173 5.23 5.55 0.125 54 -ubcwcid dam 183 0.98 1.70 -55 -ubcwcid dam 193 4.37 4.73 0.217 56 -ubcwcid dam 203 0.91 0.95 -57 -ubcwcid dam 213 3.3 3.66 0.333 58 kgtu georgetown airport5 11.12 12.31 0.002 59 k5r3 lago vista airport5 9.64 9.83 0.011 60 -usace rain gage near lake georgetown 14.576 nd nd 1determined by sliding (moving) a 24-hour window through successive values of incremental rainfall data; the first 24-hour window began at 12 am on september 7, 2010, and the last window began at 12 am on september 8, 2010. 2data obtained from the u.s. geological survey national water information system (usgs 2012). 3data obtained from dustin mortensen, civil engineer, freese and nichols, inc., written communication, 2010. 4the rain gage at dam 6 was damaged during the september 2010 storm. 5data obtained from the federal aviation administration (2012). 6for a 24-hour period ending 8 am on september 8, 2010. floods in central texas, september 7–14, 2010 texas water journal, volume 3, number 1 19 gages at the geological survey’s surface-water monitoring station 08104650 lake georgetown near georgetown, the water control and improvement district’s dam 5 and 13a, and the georgetown airport, respectively; figures 1–2; table 1). these 24-hour rainfall totals agreed within about 10% with the national weather service-gridded rainfall data. cumulative 24-hour rainfall totals for sites 5 and 42 are shown in figure 3. a rain gage operated by the u.s. army corps of engineers, about 0.5 mile north of georgetown lake (site 60, figure 1; table 1), recorded 14.57 inches during the 24-hour period ending at 8 am september 8, 2010 (john rael, hydraulic engineer, u.s. army corps of engineers, written communication 2012). rainfall annual exceedance probabilities for the september 2010 flood were estimated using depth-duration frequency maps for texas (asquith and roussel 2004). annual exceedance probability is the reciprocal of the “x-year rainfall.” when describing flood frequency, annual exceedance probability is the reciprocal of the “x-year flood.” for example, a 50-year flood has an annual exceedance probability of 1/50 = 0.02, equivalent to a 2% chance of occurring in any given year. the “x-year flood” terminology is no longer preferred, as it is often 14 12 10 8 6 4 2 0 c u m u la t iv e r a in fa ll , in i n c h e s ubcwcid rain gage at dam 5 (site 42, table 1, fig. 1) u.s. geological survey rain gage at lake georgetown (site 5, table 1, fig. 1) 2010 sept 7 6:00 12:00 18:00 0:00 6:00 explanation sept 8 figure 3. cumulative rainfall for 24-hour period ending 6 am september 8, 2010, at upper brushy creek water control and improvement district dam 5 and u.s. geological survey surface-water monitoring station 08104650 lake georgetown near georgetown, texas. 0 2 4 6 8 10 12 14 0.010.11251020305070809095989999.999.99 0.5 annual exceedence probability, in percent 2 4 -h o u r r a in fa ll , in i n c h e s figure 4. annual exceedance probabilities for 24-hour rainfall totals in williamson county, texas, derived from asquith and roussel (2004). floods in central texas, september 7–14, 2010 texas water journal, volume 3, number 1 20 misunderstood to imply an interoccurrence period between events (holmes and dinicola 2010). to determine rainfall annual exceedance probabilities for williamson county, the 24-hour rainfall totals from maps of various return periods (asquith and roussel 2004) were interpolated to develop the relation shown in figure 4. the annual exceedance probability values listed in table 1 were computed using the maximum 24-hour rainfall amount and depth-duration frequency of rainfall by asquith and roussel (2004). this maximum rainfall was determined by sliding (moving) a 24-hour window through successive values of (primarily 5-minutes) incremental rainfall data; the first 24-hour window began at 12 am september 7, 2010, and the last window began at 12 am september 8, 2010. the maximum intensities typically occurred during a 24-hour window ending at 4:30 am september 8, and these values are only slightly larger than those recorded for the 24-hour period ending at 6 am september 8 (table 1). the rainfall recorded at sites 5, 42, 49, and 58 (figures 1–2, table 1) had an annual exceedance probability of 0.002, a 1-in-500 chance of occurring in any year. peak streamflows and annual exceedance probabilities peak streamflow values are generally computed from stagedischarge rating curves (kennedy 1983, and rantz and others 1982). measurements of streamflow are used to define stage-discharge rating curves, and measurements made during floods are especially necessary for reliable computation of peak streamflow (turnipseed and sauer 2010). streamflow measurement data from 19 geological survey streamflow-gaging stations and flood-peak data from 35 geological survey streamflow-gaging stations and 2 reservoir gages were evaluated; peak streamflows measured during the september 2010 runoff event were compared to previous known maximum flood peaks from the period of record for each station. all geological survey data were obtained from its national water information system (usgs 2012). when it is logistically impossible to measure the peak streamflow because of difficulties accessing the site at the time of the peak or because of rapid changes in stage, it is often possible to indirectly compute the peak streamflow “afterthe-fact,” using methods based on principles of open-channel hydraulics. the slope-area computation method incorporates channel cross-section geometry and roughness (a measure of frictional resistance to flow) to compute the peak streamflow associated with a flood profile defined from interpretation of high-water marks (dalrymple and benson 1967). for selected peaks associated with the september 2010 flood, slope-area computations were performed using the geological survey slope-area computation program (fulford 1994). six slopearea computations of peak streamflow made following the september 2010 flood are included in table 2. selected streamflow measurements made september 7–8, 2010 are listed in table 2. the streamflow of 50,700 cubic feet per second measured at site 3 (geological survey streamflowgaging station 08104500 little river near little river, texas [hereinafter little river gage]) was the largest discharge measured, and this measurement was made near the peak of the flood. slope-area computations were performed at sites 8, 12, 13, 29, 34, and 36 (table 2). these indirect measurements of peak discharge are probably less accurate compared to direct measurements of streamflow. for example, the slope-area computation for site 29 (geological survey streamflow-gaging station 08158819 bear creek near brodie lane near manchaca, texas) differed by 11% from the discharge estimated from the stage-discharge rating curve in use for this site, which is based in part on a direct measurement from 2004 of 6,900 cubic feet per second (stage 12.40 feet). the peak streamflow at a location divided by the contributing area upstream from it, (cubic feet per second per square mile), described here as unit runoff, is a measure of the intensity of a watershed’s response to a storm and is useful for comparing peak discharges from different sites (fontaine and hill 2002; rowe and allander 2000). the drainage area for each geological survey streamflow-gaging station is available in its 2010 annual data report (usgs 2010). peak stages, streamflows, and unit runoff for the september 2010 flood are shown in table 3, along with data from the previous known maximum flood. only streamflow from unregulated drainage areas was considered; if dams were present, unit runoff was based on the drainage area of the unregulated part of the basin. on september 8, 2010, site 6 (geological survey streamflow-gaging station 08104700 north fork san gabriel river near georgetown [hereinafter north fork san gabriel gage]) recorded the highest peak streamflow (7,330 cubic feet per second) since regulation of streamflow at this site began in 1980. site 13 (geological survey streamflow-gaging station 08154700 bull creek at loop 360 near austin [hereinafter bull creek at loop 360 gage]) recorded the highest peak streamflow in its 32-year history. in addition to sites 6 and 13, the september 2010 flood was the highest recorded flood at 9 other sites (8, 9, 12, 19, 21, 23, 24, 25, and 34) in the study area, although none of these 9 sites had more than 7 years of record. streamflow hydrographs for site 7 (geological survey streamflow-gaging station 08104900 south fork san gabriel river at georgetown) and site 13 are shown in figure 5. the relation between peak streamflow and unregulated drainage area for 35 geological survey streamflow-gaging stations september 7–8, 2010, in bell, williamson, and travis counties is shown in figure 6, along with selected flood peaks used to define an envelope of maximum floods for a floods in central texas, september 7–14, 2010 texas water journal, volume 3, number 1 21 table 2. data from selected streamflow measurements made at u.s. geological survey streamflow-gaging stations during september 7–8, 2010. [mi2, square miles; ft, feet; ft3/s, cubic feet per second; ft/s, feet per second; nd, not determined] site number (fig. 1) station number station name drainage area (mi2) date and time (24-hr) stage (ft) measured streamflow (ft3/s) mean velocity (ft/s) 3 08104500 little river near little river, texas 5,228 9/8/2010 1330 40.51 50,700 3.0 8 08105095 berry creek at airport road near georgetown, texas 71.4 9/8/2010 0305 28.72 25,9001 4.9 9 08105505 willis creek near granger, texas 57.8 9/8/2010 1747 10.68 697 3.2 12 08105886 lake creek at lake creek parkway near austin, texas 2.18 9/8/2010 0035 8.59 3,5101 6.7 13 08154700 bull creek at loop 360 near austin, texas 22.3 9/8/2010 0140 14.97 16,9001 13.4 15 08155240 barton creek at lost creek blvd near austin, texas 107 9/8/2010 1113 9.54 6,280 5.5 16 08155300 barton creek at loop 360, austin, texas 116 9/8/2010 1311 10.83 6,990 6.0 18 08155541 west bouldin creek at oltorf road, austin, texas 1.77 9/7/2010 1305 2.13 40.7 2.4 19 08156675 shoal creek at silverway drive, austin, texas 5.59 9/7/2010 1405 3.49 51 1.0 20 08156800 shoal creek at w 12th street, austin, texas 12.3 9/7/2010 1245 3.87 325 3.8 24 08158035 boggy creek at webberville road, austin, texas 3.44 9/7/2010 0917 1.28 84.5 nd 25 08158045 fort branch boggy creek at manor road, austin, texas 1.47 9/8/2010 0900 3.33 18.8 3.3 28 08158600 walnut creek at webberville road, austin, texas 51.3 9/8/2010 0930 13.45 2,870 2.9 29 08158819 bear creek near brodie lane near manchaca, texas 23.8 9/8/2010 0025 11.92 5,3301 6.5 32 08158860 slaughter creek at farm road 2304 near austin, texas 23.1 9/8/2010 1147 3.53 357 1.6 34 08158927 kincheon branch at william cannon blvd, austin, texas 6.73 9/8/2010 0015 5.05 2,3401 5.7 35 08158930 williamson creek at manchaca road, austin, texas 19 9/7/2010 1830 5.73 700 3.1 36 08158970 williamson creek at jimmy clay road, austin, texas 27.6 9/8/2010 0200 17.87 4,8601 4.2 37 08159000 onion creek at u.s. highway 183, austin, texas 321 9/8/2010 1300 16.93 7,580 3.1 1peak streamflow computed using slope-area method (fulford 1994). floods in central texas, september 7–14, 2010 texas water journal, volume 3, number 1 22 table 3. flood-peak data at selected u.s. geological survey surface-water monitoring stations in bell, williamson, and travis counties, texas. [mi2, square miles; ft, feet; ft3/s, cubic feet per second; --, not applicable] c h a ra ct e ri st ic s o f sy st e m a ti c re co rd s e p te m b e r 2 0 1 0 fl o o d p re v io u s k n o w n m a x im u m 1 s it e n u m b e r (f ig . 1 ) s ta ti o n n u m b e r s ta ti o n n a m e d ra in a g e a re a (m i2 ) le n g th (y rs ) p e ri o d (w a te r yr s) d a te t im e p e a k st a g e (f t) p e a k st re a m fl o w (f t3 / s) u n it r u n o ff (f t3 / s/ m i2 ) a n n u a l e x ce e d a n ce p ro b a b il it y d a te p e a k st a g e (f t) p e a k st re a m fl o w (f t3 / s) 1 08 10 25 00 le on r iv er n ea r b el to n, t ex as 3, 58 2 56 19 55 1 – 20 10 9/ 8/ 20 10 09 00 5. 36 1, 33 0 11 52 0. 88 3/ 6/ 19 92 9. 74 10 ,2 00 1 2 08 10 41 00 la m pa sa s r iv er n ea r b el to n, t ex as 1, 32 1 34 19 67 1 – 20 10 9/ 8/ 20 10 04 00 11 .8 3 2, 14 0 26 52 0. 49 6/ 26 /2 00 7 18 .9 9 6, 39 01 3 08 10 45 00 li tt le r iv er n ea r li tt le r iv er , te xa s 5, 22 8 48 19 63 –2 01 0 9/ 8/ 20 10 14 00 40 .5 8 50 ,7 00 12 92 0. 02 5/ 17 /1 96 5 42 .8 5 79 ,6 00 4 08 10 46 46 60 n or th f or k sa n g ab ri el r iv er a t r ea ga n b lv d ne ar le an de r, te xa s 21 0 2 20 09 –2 01 0 9/ 8/ 20 10 00 45 15 .2 6 13 ,7 00 65 .2 -10 /2 2/ 20 09 17 .2 2 18 ,3 00 5 08 10 46 50 la ke g eo rg et ow n ne ar g eo rg et ow n, t ex as 24 7 31 19 80 –2 01 0 9/ 14 /2 01 0 01 30 79 8. 65 ---3/ 4/ 19 92 83 5. 86 -6 08 10 47 00 n or th f or k sa n g ab ri el r iv er n ea r g eo rg et ow n, t ex as 24 8 31 19 80 1 – 20 10 9/ 8/ 20 10 01 00 14 .1 5 7, 33 0 4, 73 0 0. 03 3/ 4/ 19 92 13 .0 5 6, 07 01 7 08 10 49 00 so ut h fo rk s an g ab ri el r iv er a t g eo rg et ow n, t ex as 13 3 43 19 68 –2 01 0 9/ 8/ 20 10 03 45 21 .9 8 24 ,5 00 18 4 0. 10 6/ 27 /2 00 7 31 .6 5 57 ,5 00 8 08 10 50 95 b er ry c re ek a t a ir po rt r oa d ne ar g eo rg et ow n, t ex as 71 .4 7 20 04 –2 01 0 9/ 8/ 20 10 03 05 28 .7 2 25 ,9 00 36 3 -6/ 27 /2 00 7 23 .0 5 12 ,4 00 9 08 10 55 05 w ill is c re ek n ea r g ra ng er , te xa s 57 .8 2 20 09 –2 01 0 9/ 8/ 20 10 07 00 23 .1 6 10 ,0 00 17 3 -9/ 11 /2 00 9 22 .2 0 8, 87 0 10 08 10 56 00 g ra ng er l ak e ne ar g ra ng er , te xa s 73 0 31 19 80 –2 01 0 9/ 10 /2 01 0 10 00 51 3. 75 ---3/ 5/ 19 92 53 0. 11 -11 08 10 57 00 sa n g ab ri el r iv er a t la ne po rt , te xa s 73 8 31 19 80 1 – 20 10 9/ 8/ 20 10 10 45 4. 87 8. 3 1. 12 -3/ 5/ 19 92 21 .8 6 7, 54 01 12 08 10 58 86 la ke c re ek a t la ke c re ek p ar kw ay n ea r a us ti n, t ex as 2. 18 1 20 10 –2 01 0 9/ 8/ 20 10 00 35 8. 59 3, 51 0 1, 61 0 ----13 08 15 47 00 b ul l c re ek a t lo op 3 60 n ea r a us ti n, t ex as 22 .3 32 19 79 –2 01 0 9/ 8/ 20 10 01 40 14 .9 7 16 ,9 00 75 8 0. 03 5/ 13 /1 98 2 11 .9 6 13 ,7 00 14 08 15 52 00 b ar to n c re ek a t st at e h ig hw ay 7 1 ne ar o ak h ill , te xa s 89 .7 29 19 76 –2 01 0 9/ 8/ 20 10 02 55 15 .7 7 7, 56 0 84 .3 0. 24 7/ 2/ 20 02 22 .8 2 25 ,3 00 15 08 15 52 40 b ar to n c re ek a t lo st c re ek b lv d ne ar a us ti n, t ex as 10 7 22 19 89 –2 01 0 9/ 8/ 20 10 06 40 10 .8 1 8, 45 0 79 .0 0. 21 5/ 28 /1 92 9 -39 ,4 00 16 08 15 53 00 b ar to n c re ek a t lo op 3 60 , a us ti n, t ex as 11 6 35 19 76 –2 01 0 9/ 8/ 20 10 07 55 12 .5 1 8, 79 0 75 .8 0. 21 5/ 28 /1 92 9 -39 ,4 00 17 08 15 54 00 b ar to n c re ek a bo ve b ar to n sp ri ng s at a us ti n, t ex as 12 5 12 19 99 –2 01 0 9/ 8/ 20 10 09 00 14 .0 2 5, 77 0 46 .2 0. 25 7/ 2/ 20 02 18 .2 1 17 ,2 00 18 08 15 55 41 w es t b ou ld in c re ek a t o lt or f r oa d, a us ti n, t ex as 1. 77 3 20 08 –2 01 0 9/ 7/ 20 10 22 40 3. 48 35 1 19 8 -9/ 12 /2 00 9 5. 06 98 7 19 08 15 66 75 sh oa l c re ek a t si lv er w ay d ri ve , a us ti n, t ex as 5. 59 3 20 08 –2 01 0 9/ 7/ 20 10 23 45 9. 59 3, 19 0 57 1 -5/ 23 /2 00 9 7. 94 2, 21 0 20 08 15 68 00 sh oa l c re ek a t w 1 2t h st re et , a us ti n, t ex as 12 .3 36 19 75 –2 01 0 9/ 8/ 20 10 00 30 16 .9 5 6, 25 0 50 8 0. 18 5/ 24 /1 98 1 23 .2 2 16 ,0 00 21 08 15 69 10 w al le r c re ek a t ko en ig l an e, a us ti n, t ex as 1. 09 3 20 08 –2 01 0 9/ 7/ 20 10 19 40 4. 79 50 1 46 0 -9/ 4/ 20 09 4. 29 39 2 22 08 15 80 00 c ol or ad o r iv er a t a us ti n, t ex as 39 ,0 09 11 33 18 98 3 – 20 10 9/ 8/ 20 10 03 30 27 .6 7 37 ,7 00 14 82 0. 09 4/ 29 /1 94 1 23 .5 54 47 ,6 00 1 23 08 15 80 30 b og gy c re ek a t m an or r oa d, a us ti n, t ex as 1. 67 3 20 08 –2 01 0 9/ 7/ 20 10 19 50 5. 65 63 8 38 2 -4/ 27 /2 00 8 5. 32 57 3 24 08 15 80 35 b og gy c re ek a t w eb be rv ill e r oa d, a us ti n, t ex as 3. 44 3 20 08 –2 01 0 9/ 7/ 20 10 23 20 3. 52 66 3 19 3 -4/ 27 /2 00 8 2. 82 46 7 25 08 15 80 45 fo rt b ra nc h b og gy c re ek a t m an or r oa d, a us ti n, t ex as 1. 47 3 20 08 –2 01 0 9/ 7/ 20 10 23 30 5. 58 42 6 29 0 -9/ 4/ 20 09 5. 59 37 0 26 08 15 82 00 w al nu t c re ek a t d es sa u r oa d, a us ti n, t ex as 26 .2 17 19 75 –2 01 0 9/ 8/ 20 10 01 55 19 .6 6 9, 66 0 36 9 0. 10 5/ 25 /1 98 1 26 .2 0 21 ,6 00 27 08 15 83 80 li tt le w al nu t c re ek a t g eo rg ia n d ri ve , a us ti n, t ex as 5. 22 9 19 83 –2 01 0 9/ 7/ 20 10 19 50 8. 93 3, 13 0 60 0 0. 17 9/ 14 /1 98 5 11 .9 0 3, 49 0 28 08 15 86 00 w al nu t c re ek a t w eb be rv ill e r oa d, a us ti n, t ex as 51 .3 45 19 66 –2 01 0 9/ 8/ 20 10 00 40 21 .4 3 8, 79 0 17 1 0. 20 1/ 13 /2 00 7 26 .3 0 16 ,4 00 29 08 15 88 19 b ea r c re ek n ea r b ro di e la ne n ea r m an ch ac a, t ex as 23 .8 7 20 04 –2 01 0 9/ 8/ 20 10 00 25 11 .9 2 6, 01 05 25 2 -11 /2 2/ 20 04 12 .4 0 6, 90 0 30 08 15 88 27 o ni on c re ek a t tw in c re ek s r oa d ne ar m an ch ac a, te xa s 18 1 7 20 04 –2 01 0 9/ 8/ 20 10 01 25 15 .3 3 5, 48 0 30 .3 -11 /1 7/ 20 04 23 .7 2 19 ,2 00 31 08 15 88 40 sl au gh te r c re ek a t fa rm r oa d 18 26 n ea r a us ti n, t ex as 8. 24 33 19 78 –2 01 0 9/ 7/ 20 10 22 45 10 .2 2 3, 71 0 45 0 0. 14 12 /2 0/ 19 91 10 .6 8 6, 33 0 32 08 15 88 60 sl au gh te r c re ek a t fa rm r oa d 23 04 n ea r a us ti n, t ex as 23 .1 13 19 79 –2 01 0 9/ 8/ 20 10 01 55 8. 18 4, 28 0 18 5 0. 20 6/ 11 /1 98 1 12 .4 0 8, 34 0 33 08 15 89 20 w ill ia m so n c re ek a t o ak h ill , te xa s 6. 3 22 19 79 –2 01 0 9/ 7/ 20 10 22 40 9. 49 2, 51 0 39 8 0. 17 5/ 18 /1 99 2 9. 97 4, 75 0 34 08 15 89 27 k in ch eo n b ra nc h at w ill ia m c an no n b lv d, a us ti n, t ex as 6. 73 3 20 08 –2 01 0 9/ 8/ 20 10 00 15 5. 05 2, 34 0 34 8 -9/ 12 /2 00 9 1. 97 40 3 35 08 15 89 30 w ill ia m so n c re ek a t m an ch ac a r oa d, a us ti n, t ex as 19 21 19 76 –2 01 0 9/ 7/ 20 10 23 35 14 .6 5 4, 72 0 24 8 0. 15 6/ 11 /1 98 1 16 .0 0 8, 49 0 36 08 15 89 70 w ill ia m so n c re ek a t ji m m y c la y r oa d, a us ti n, t ex as 27 .6 15 19 75 –2 01 0 9/ 8/ 20 10 02 00 17 .8 7 4, 86 0 17 6 -6/ 11 /1 98 1 17 .2 5 14 ,1 00 37 08 15 90 00 o ni on c re ek a t u .s . h ig hw ay 1 83 , a us ti n, t ex as 32 1 35 19 76 –2 01 0 9/ 8/ 20 10 06 00 20 .3 7 9, 54 0 29 .7 0. 37 9/ 9/ 19 21 38 .0 0 13 8, 00 0 floods in central texas, september 7–14, 2010 1 f or p er io d si nc e st re am flo w r eg ul at io n be ga n. 2 f or u nr eg ul at ed p ar t o f t he b as in . 3 r eg ul at ed b y m an sfi el d d am s in ce 1 94 1. th e 36 -y ea r pe ri od 1 97 520 10 is m or e ty pi ca l o f c ur re nt d am o pe ra tio ns a nd w as u se d in d et er m in in g an nu al e xc ee da nc e pr ob ab ili ty fo r th e se pt em be r 20 10 fl oo d. 4 a dj us te d to p re se nt d at um . 5 b as ed o n st ag edi sc ha rg e ra tin g cu rv e ex te nd ed to a m ea su re m en t m ad e in 2 00 4. texas water journal, volume 3, number 1 23 figure 5. streamflow hydrographs for u.s. geological survey streamflow-gaging stations 08104900 south fork san gabriel river at georgetown and 08154700 bull creek at loop 360 near austin. figure 6. relation between peak streamflow and unregulated drainage area at 35 u.s. geological survey streamflow-gaging stations september 7–8, 2010, in bell, williamson, and travis counties and selected flood peaks used to define an envelope of maximum floods documented in the united states by the u.s. geological survey. 0 5,000 10,000 15,000 20,000 25,000 30,000 0:00 12:00 0:00 12:00 0:00 08104900 (site 7, fig. 1, table 3) 08154700 (site 13, fig. 1, table 3) 2010 sept 7 sept 8 s t r e a m fl o w , in c u b ic f e e t p e r s e c o n d explanation unregulated drainage area, in square miles 1 10 100 1,000 1 10 100 1,000 10,000 100,000 p e a k s t r e a m fl o w , in c u b ic f e e t p e r s e c o n d 08105700 san gabriel river at laneport, tex. (site 11, fig. 1, table 3) 08104700 north fork san gabriel river near georgetown, tex. (site 6, fig. 1, table 3) 08105886 lake creek at lake creek parkway near austin, tex. (site 12, fig. 1, table 3) figure 6. relation between peak streamflow and unregulated drainage area during september 7 8, 2010, in bell, williamson, and travis counties, texas, and selected flood peaks used to define an envelope of maximum floods documented in the united states by the u.s. geological survey. at 35 u.s. geological survey streamflow-gaging stations 1,000,000 flood of september 7 8, 2010, in central texas extraordinary floods in the united states (costa and jarrett, 2008) 10,000 08104700 08105886 08105700 explanation range of drainage areas documented in the united states by the geological survey (costa and jarrett 2008). asquith and slade (1995) developed envelope curves for maximum peak streamflows in texas. these were not considered for this study because the areal extent of the 2010 flood is at the convergence of 3 regions with different maximum peak streamflow characteristics as described in asquith and slade (1995). in figure 6, the peak streamflow of 7,330 cubic feet per second recorded at site 6 is plotted versus the unregulated drainage area of this site (1.55 square miles). because releases from lake georgetown did not begin until september 14 (usace 2011), the peak streamflow recorded for site 6 is the runoff from the unregulated area downstream from the dam. the peak discharge for site 6 plots just below the data for the envelope of maximum floods (figure 6); the centroid of the unregulated part of the basin between lake georgetown and site 6 is about 0.5 mile from the reported 24-hour rainfall of 14.57 inches at the corps georgetown lake office. the peak streamflow at site 12 (geological survey streamflow-gaging station 08105886 lake creek at lake creek parkway near austin) was 3,510 cubic feet per second; the drainage area for this site is 2.18 miles, (figure 6, table 3). site 11 (geological survey streamflow-gaging station 08105700 san gabriel river at laneport), 4 miles downstream from granger lake, recorded a peak streamflow of 8.3 cubic feet per second (figure 6). the unregulated part of the drainage area of site 11 received only 2 inches of rain (figure 2) and the water-surface elevation at granger lake did not reach the spillway. the annual exceedance probabilities listed in table 3 for peak streamflows were computed for 20 streamflow-gaging stations in the study area, based on the annual flood peaks for the period of systematic record. because many of these stations have dams and/or substantial development within the basin, annual exceedance probabilities were based strictly on the systematic record without consideration of regional floodfrequency equations (e.g., asquith and roussel 2009). annual exceedance probabilities were computed using methods outlined in bulletin 17b (interagency advisory committee on water data 1982). calculations were made using the geological survey program peak flow frequency (peakfq) (flynn et al. 2006). for stations where the streamflow is regulated, peak streamflows for the period prior to when regulation began were not used in the analysis. for site 22 (geological survey streamflow-gaging station 08158000 colorado river at austin) (figure 1, table 3) the period 1975–2010 was used in the analysis, as annual peak streamflows during this period appear to reflect consistent reservoir operations. the annual exceedance probability was 0.03 for sites 6 (north fork san gabriel gage) and 13 (bull creek at loop 360 gage) (table 3). the annual exceedance probability for site 3 (little river gage) was 0.02. generally, annual exceedance probabilities for 24-hour rainfall were lower than for peak streamflows. the lack of similarity in the annual exceedance probabilities computed for precipitation and streamflow could be partly attributed to the small areal extent of the heaviest rainfall over the gaged watersheds (figure 2). peak streamflows on brushy creek are not known; however, much of the basin received more than 10 inches of rainfall, and the annual exceedance probability was less than 0.01 at several rain gages floods in central texas, september 7–14, 2010 texas water journal, volume 3, number 1 24 (table 1). additionally, the distribution of streamflow-gaging stations by drainage basin size is not uniform across the study area. the geometric mean of the drainage areas for streamflowgaging stations in travis county is 22.4 square miles, while that for williamson county, where the most intense rainfall occurred, is 89.5 square miles. only one site (site 12, geological survey station 08105886 lake creek at lake creek parkway near austin) in williamson county had a drainage area less than 50 square miles; however, none of the streamflowgaging stations for the smaller basins in williamson county have sufficient record length to compute annual exceedance probabilities for peak streamflow. the lack of stream gages on smaller watersheds in williamson county limits the understanding of peak streamflows (and associated annual exceedance probabilities) for the september 2010 flood. summary heavy rainfall associated with tropical storm hermine september 7–8 resulted in widespread flooding september 7–14, 2010, in bell, williamson, and travis counties near the austin metropolitan area in central texas. the u.s. geological survey, in cooperation with the upper brush creek water control and improvement district, determined rainfall amounts and annual exceedance probabilities for rainfall resulting in flooding in central texas in bell, williamson, and travis counties during september 2010 and documented peak streamflow amounts and the annual exceedance probabilities for peak streamflows measured at several streamflow-gaging stations in the study area. total 24-hour rainfall exceeded 12 inches at some locations, with one report of 14.57 inches at lake georgetown. annual exceedance probabilities of rainfall were estimated using depth-duration frequency maps for texas. at 4 sites in williamson county where more than 12 inches of rain fell in 24 hours (as recorded by rain gages at the geological survey surface-water monitoring station 08104610 lake georgetown near georgetown, the water control and improvement district dam 5 and 13a, and the georgetown airport), the 24-hour rainfall had an annual exceedance probability of 0.002. streamflow-measurement data from 19 geological survey streamflow-gaging stations are presented, including slope-area computations of peak streamflow. floodpeak data from 35 geological survey streamflow-gaging stations and 2 reservoir gages are presented, along with previous known maximums. the peak streamflow at site 6 (north fork san gabriel river gage) approached the envelope of maximum floods for a range of drainage areas documented in the united states. the annual exceedance probability for peak streamflows were computed for 20 streamflow-gaging stations in the study area. the annual exceedance probability was 0.03 for the peak streamflow at site 6 and at site 13 (bull creek at loop 360 gage). the annual exceedance probability was 0.02 for the peak discharge for site 3 (little river gage). the lack of similarity in the annual exceedance probabilities computed for precipitation and streamflow could be partly attributed to the small areal extent of the heaviest rainfall over the gaged watersheds. additionally, the distribution of streamflow-gaging stations by drainage basin size is not uniform across the study area. the lack of stream gages on smaller watersheds in williamson county limits the understanding of peak streamflows (and associated annual exceedance probabilities) for the september 2010 flood. references asquith wh, roussel mc. 2004. atlas of depth-duration frequency of precipitation annual maxima for texas. austin (texas): u.s. geological survey. scientific investigations report 2004-5041. (txdot implementation report 5–1301–01–1). 106 p. asquith wh, roussel mc. 2009. regression equations for estimation of annual peak-streamflow frequency for undeveloped watersheds in texas using an l-moment-based, press-minimized, residual-adjusted approach. austin (texas): u.s. geological survey. scientific investigations report 2009-5087. (texas department of transportation research report 0–5521–1). 48 p. asquith wh, slade rm jr. 1995. documented and potential extreme peak discharges and relation between potential extreme peak discharges and probable maximum flood peak discharges in texas. austin (texas): u.s. geological survey; in cooperation with texas department of transportation. water-resources investigations report 95–4249. 58 p. associated press. 2010 september 14. hermine death toll at 8 after 2 more bodies found. austin american-statesman [internet]. [cited 2011 april 29]. available from: http:// www.statesman.com/news/nation/hermine-death-toll-at8-after-2-more-916411.html austin american-statesman. 2010 september 13. austin police—deceased person found in lake austin. austin american-statesman [internet]. [cited 2012 january 9]. blotter. available from: http://www.statesman. com/blogs/content/shared-gen/blogs/austin/blotter/ entries/2010/09/13/austin_police_are_on_the_scene. html costa je, jarrett rd. 2008. an evaluation of selected extraordinary floods in the united states reported by the u.s. geological survey and implications for future advancement of flood science. reston (virginia): u.s. geological survey. scientific investigations report 2008–5164. 232 p. floods in central texas, september 7–14, 2010 http://www.statesman.com/news/nation/hermine-death-toll-at-8-after-2-more-916411.html http://www.statesman.com/news/nation/hermine-death-toll-at-8-after-2-more-916411.html http://www.statesman.com/news/nation/hermine-death-toll-at-8-after-2-more-916411.html http://www.statesman.com/blogs/content/shared-gen/blogs/austin/blotter/entries/2010/09/13/austin_police_are_on_the_scene.html http://www.statesman.com/blogs/content/shared-gen/blogs/austin/blotter/entries/2010/09/13/austin_police_are_on_the_scene.html http://www.statesman.com/blogs/content/shared-gen/blogs/austin/blotter/entries/2010/09/13/austin_police_are_on_the_scene.html http://www.statesman.com/blogs/content/shared-gen/blogs/austin/blotter/entries/2010/09/13/austin_police_are_on_the_scene.html texas water journal, volume 3, number 1 25 dalrymple t, benson ma. 1967. measurement of peak discharge by the slope-area method. denver (colorado): u.s. geological survey. techniques of water-resources investigations, book 3, chap. a2. 12 p. [faa] federal aviation administration. 2012. surface weather observation stations in texas—georgetown and lago vista [internet]. washington (district of columbia): federal aviation administration [cited 2012 january 12]. available from: http://www.faa.gov/air_traffic/weather/ asos/?state=tx flynn km, kirby wh, mason r, cohn ta. 2006. estimating the magnitude and frequency of floods using the peakfq program. reston (virginia): u.s. geological survey. fact sheet fs–2006–3143. 2 p. fontaine ra, hill br. 2002. streamflow and erosion response to prolonged intense rainfall of november 1–2, 2000, island of hawaii, hawaii. honolulu (hawaii): u.s. geological survey. water-resources investigations report 02-4117. 31 p. fulford jm. 1994. user’s guide to sac, a computer program for computing discharge by slope-area method. stennis space center (mississippi): u.s. geological survey earth science information center. report no: 94–360. 31 p. holmes rr jr, dinicola k. 2010. 100-year flood—it’s all about chance. reston (virginia): u.s. geological survey. general information product 106. 1 p. interagency advisory committee on water data. 1982. guidelines for determining flood flow frequency. bulletin 17b of the hydrology subcommittee. reston (virginia): u.s. geological survey office of water data coordination. 183 p. jain sk, singh vp. 2005. isohyetal method. in: lehr jh, keeley j, editors. water encyclopedia: [internet]. hoboken (new jersey): john wiley & sons, inc.; [cited 2012 january 9]. available from: http://onlinelibrary.wiley. com/doi/10.1002/047147844x.me231/full kennedy ej. 1983. computation of continuous records of streamflow. denver (colorado): u.s. geological survey. techniques of water-resources investigations, book 3, chapter a13, 53 p. [nws] national weather service. 2010. advanced hydrologic prediction service [internet]. silver spring (maryland): national weather service; [modified 2011 october 19; cited 2011 april 15]. available from: http://water.weather. gov/precip/ rantz se and others. 1982. measurement and computation of streamflow—volume 1. measurement of stage and discharge, and volume 2. computation of discharge [internet]. washington (district of columbia): u.s. geological survey; [cited 2011 june 21]. water supply paper 2175. 631 p. available from: http://pubs.usgs.gov/wsp/ wsp2175/ floods in central texas, september 7–14, 2010 rasmussen b. 2010 sep 8. flooding destroys homes along lake creek. community impact newspaper [internet]. [cited 2011 april 29]. available from: http://impactnews. com/articles/flooding-destroys-homes-along-lake-creek/ rowe tg, allander kk. 2000. surfaceand ground-water characteristics in the upper truckee river and trout creek watersheds, south lake tahoe, california and nevada, july-december 1996. carson city (nevada): u.s. geological survey; in cooperation with tahoe regional planning agency. water-resources investigations report 00-4001. turnipseed dp, sauer vb. 2010. discharge measurements at gaging stations. reston (virginia): u.s. geological survey. techniques and methods, book 3, chapter a8, 87 p. [usace] u.s. army corps of engineers. 2011. fort worth district—reservoir control section [internet]. fort worth (texas): u.s. army corps of engineers [cited 2011may 3]. available from: http://www.swf-wc.usace.army.mil/ cgi-bin/rcshtml.pl [usgs] u.s. geological survey. 2010. water-resources data for the united states, water year 2010 [internet]. reston (virginia):u.s. geological survey [cited 2012 january 16]. report no.: wdr–us–2010. available from: http://wdr.water.usgs.gov/wy2010/search.jsp [usgs] u.s. geological survey. 2012. national water information system: web interface. usgs water data for texas [internet]. reston (virginia): u.s. geological survey [cited 2012 january 12]. available from: http://waterdata. usgs.gov/tx/nwis/ [ubcwcid] upper brushy creek water control and improvement district [internet]. 2012. available from: http://www.upperbrushycreekwcid.org/ http://www.faa.gov/air_traffic/weather/asos/?state=tx http://www.faa.gov/air_traffic/weather/asos/?state=tx http://onlinelibrary.wiley.com/doi/10.1002/047147844x.me231/full http://onlinelibrary.wiley.com/doi/10.1002/047147844x.me231/full http://water.weather.gov/precip/ http://water.weather.gov/precip/ http://pubs.usgs.gov/wsp/wsp2175/ http://pubs.usgs.gov/wsp/wsp2175/ http://impactnews.com/articles/flooding-destroys-homes-along-lake-creek/ http://impactnews.com/articles/flooding-destroys-homes-along-lake-creek/ http://www.swf-wc.usace.army.mil/cgi-bin/rcshtml.pl http://www.swf-wc.usace.army.mil/cgi-bin/rcshtml.pl http://wdr.water.usgs.gov/wy2010/search.jsp http://waterdata.usgs.gov/tx/nwis/ http://waterdata.usgs.gov/tx/nwis/ http://www.upperbrushycreekwcid.org/ a battle ends, but the fight for water in oklahoma continues texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 5 number 1 2014 texas water journal http://texaswaterjournal.org volume 5, number 1 2014 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: lake buchanan, burnet county. © 2014. mark lee, lower colorado river authority. http://texaswaterjournal.org http://texaswaterjournal.org texas water resources institute texas water journal volume 5, number 1, pages 24-35 abstract: as the lifeblood of land and communities, water will forever remain at the center of people’s lives in the arid southwestern united states and, given the scarcity of water resources, at the center of their disputes. in oklahoma, disputes over water seem unending with entities in north texas seeking access to desperately needed water supplies in the red river basin, and indian nations claiming tribal rights to water in southeastern oklahoma. given the recent decision in tarrant regional water district v. herrmann, oklahoma seems to have at least settled, for the time being, one dispute, leaving north texas entities looking to develop additional water supplies elsewhere. but, oklahoma’s battle with the chocktaw and chickasaw nations over rights to water in southeastern oklahoma appears to just be heating up as drought conditions do the same. key words: water supply, constitutional law, interstate compacts, tribal water rights sara r. thornton1,2 a battle ends, but the fight for water in oklahoma continues 1 sara r. thornton is an attorney with lloyd gosselink rochelle & townsend, p.c. and practices in the areas of environmental, water and administrative law. thornton prepared and filed an amicus brief in support of the petitioner in tarrant reg’l water dist. v. herrmann, 133 s.ct. 2120 (2013). 2 the author wishes to extend a special thanks to ashley thomas, a recently licensed attorney with lloyd gosselink rochelle & townsend, p.c., for her assistance with the article. texas water journal, volume 5, number 1 citation: thornton sr. 2014. a battle ends, but the fight for water in oklahoma continues. texas water journal. 5(1):24-35. available from: https://doi.org/10.21423/twj.v5i1.7004. © 2014 sara r. thornton. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/licenses/by/4.0/ or visit the twj website. https://doi.org/10.21423/twj.v5i1.7004 texas water journal, volume 5, number 1 25a battle ends, but the fight for water in oklahoma continues short name or acronym descriptive name trwd tarrant regional water district owrb oklahoma water resources board ocwut oklahoma city water utility trust terms used in paper texas water journal, volume 5, number 1 26 a battle ends, but the fight for water in oklahoma continues vast, untapped water supplies in oklahoma surface water supplies abound in oklahoma with flowing streams and relatively full reservoirs. the state of oklahoma recognizes the vast water supplies it has and that it is “blessed with an abundance of water.”1 of its prolific surface water supplies, oklahoma taps only 1.87 million acre-feet and allows the remainder to be discharged to the gulf of mexico, unused and wasted.2 this unused and wasted amount is a staggering 36 million acre-feet of stream water.3 by 2060, oklahoma is only expected to use 2.48 million acre-feet, which means that water will continue to be unused as a public water supply for decades while other regions desperately needing such supply continue to suffer.4 although oklahoma has experienced drought conditions, such drought conditions pale in comparison to the devastating conditions experienced in texas. the year 2011 marked the state of texas’s worst recorded 1-year drought since rainfall data was first recorded in 1895.5 according to the u.s. drought monitor, a majority of texas was rated as being in “exceptional drought,” the worst rating for drought conditions, and other areas of texas were rated as at least “extreme” or “severe.”6 the drought caused streams to run low, if at all, and reservoirs to operate at 50% capacity.7 in august 2011, lake levels at lakes travis and buchanan were so low that only one boat ramp remained open for both lakes—significantly impacting recreation on the lakes.8 not surprisingly, the drought’s impact on agriculture was just as crippling and resulted in a record $5.2 billion in agricultural losses, making it the most costly drought on record.9 1 oklahoma water resources board, 2012 oklahoma comprehensive water plan executive report 3 (feb. 2012), available at http://www.owrb.ok.gov/ supply/ocwp/pdf_ocwp/waterplanupdate/draftreports/ocwp%20executive%20rpt%20final.pdf. 2 oklahoma water resources board, oklahoma comprehensive water plan, water demand forecast report table 27 (dec. 2012), available at http://www.owrb.ok.gov/supply/ocwp/pdf_ocwp/waterplanupdate/waterdemandforecastreport.pdf. 3 oklahoma water facts, oklahoma water resources board, http://www. owrb.ok.gov/util/waterfact.php/ (last updated jan. 14, 2014). 4 id. 5 dan huber, the 2011 texas drought in a historical context, center for climate & energy solutions (august 26, 2011), http://www.c2es. org/blog/huberd/2011-texas-drought-historical-context. 6 id. 7 id. 8 id. 9 blair fannin, texas agricultural drought losses reach record $5.2 billion, agrilife today (aug. 17, 2011), http://today.agrilife.org/2011/08/17/texas-agricultural-drought-losses-reach-record-5-2-billion. in addition to these ongoing drought conditions, the state of texas also faces a growing population that demands additional water supplies. the water for texas 2012 state water plan provides that texas is the second most populated state in the united states, and it had a greater population growth than any other state between 2000 and 2010—increasing from 20.8 million to 25.1 million.10 and, from 2010 to 2060, this population is expected to grow approximately 80% to 46.3 million.11 this estimated growth luckily does not have a corresponding percent increase in demand for water; water demand is only projected to increase by 22%, given the implementation of water conservation and water reuse.12 even so, based on the current inability to meet existing water demands due to ongoing drought conditions, additional water supplies must be developed to also meet this increased demand. in north texas, securing additional water supplies is extremely critical. the north texas region that includes the dallas-fort worth metroplex contains approximately 26% of texas’s population.13 by 2060, the population of the region is projected to grow 96% with water demands increasing 86%.14 to meet these demands, north texas water suppliers, in addition to continuing water conservation efforts, must develop new supplies of water, and with the vast supplies of water in oklahoma going unused, obtaining water supplies from oklahoma seems the most logical source from which to obtain such water. unfortunately, oklahoma is fighting to keep every drop of its water supplies, even if keeping this water means wasting it by discharging it into the gulf of mexico. tarrant regional water district’s fight for water in oklahoma the fight for water supplies along the texas-oklahoma border culminated in a legal battle before the highest court in the land in tarrant regional water district v. herrmann, 133 s.ct. 2120 (2013). tarrant regional water district (trwd), a state water agency serving the populous north texas region, ignited this fight when it sought to obtain water 10 texas water development board, water for texas 2012 state water plan at 129 (2012), available at http://www.twdb.state.tx.us/publications/ state_water_plan/2012/03.pdf. 11 id. at 132. 12 id. at 136. 13 texas water development board, water for texas 2012 state water plan at 46 (2012), available at http://www.twdb.state.tx.us/publications/ state_water_plan/2012/02.pdf. 14 id. http://www.owrb.ok.gov/supply/ocwp/pdf_ocwp/waterplanupdate/draftreports/ocwp%20executive%20rpt%20final.pdf http://www.owrb.ok.gov/supply/ocwp/pdf_ocwp/waterplanupdate/draftreports/ocwp%20executive%20rpt%20final.pdf http://www.owrb.ok.gov/supply/ocwp/pdf_ocwp/waterplanupdate/draftreports/ocwp%20executive%20rpt%20final.pdf http://www.owrb.ok.gov/supply/ocwp/pdf_ocwp/waterplanupdate/waterdemandforecastreport.pdf http://www.owrb.ok.gov/supply/ocwp/pdf_ocwp/waterplanupdate/waterdemandforecastreport.pdf http://www.owrb.ok.gov/util/waterfact.php/ http://www.owrb.ok.gov/util/waterfact.php/ http://www.c2es.org/blog/huberd/2011-texas-drought-historical-context http://www.c2es.org/blog/huberd/2011-texas-drought-historical-context http://today.agrilife.org/2011/08/17/texas-agricultural-drought-losses-reach-record-5-2-billion http://today.agrilife.org/2011/08/17/texas-agricultural-drought-losses-reach-record-5-2-billion http://www.twdb.state.tx.us/publications/state_water_plan/2012/03.pdf http://www.twdb.state.tx.us/publications/state_water_plan/2012/03.pdf http://www.twdb.state.tx.us/publications/state_water_plan/2012/02.pdf http://www.twdb.state.tx.us/publications/state_water_plan/2012/02.pdf texas water journal, volume 5, number 1 27a battle ends, but the fight for water in oklahoma continues rights in oklahoma.15 in one of the water rights applications it filed with oklahoma, trwd proposed to take a portion of texas’s share of water from the red river basin within reach ii, subbasin 5 in the kiamichi river.16 in anticipation of the oklahoma water resources board (owrb) rejecting its water right application, trwd filed suit in 2007 against the owrb.17 ultimately, the constitutional law arguments central to this legal battle would make their way through the justice system all the way to the u.s. supreme court. trwd’s efforts to export water from oklahoma and the red river compact in light of the current and future population growth in its service area, trwd has an ongoing obligation to secure additional water supplies to serve its customers.18 in an effort to fulfill this obligation, in early 2007 trwd submitted 3 applications to the owrb19 seeking authority to export water from oklahoma to serve its customers in north texas.20 one of these applications sought a permit to appropriate and export 310,000 acre-feet of water from the kiamichi river in southeastern oklahoma.21 at the time trwd filed its application, oklahoma state statutes required owrb to treat in-state applicants more favorably than out-of-state applicants.22 for 15 see danny debelius, et al., water fight, national public radio, http://stateimpact.npr.org/oklahoma/tarrant-regional-water-district-v-herrmann/ (last visited january 17, 2014) (providing an overview of the water battle before the u.s. supreme court case); janice francis-smith, water wars: can oklahoma quench texas’ thirst without getting parched?, oklahoma city journal record, apr. 29, 2008, http://www.questia.com/ newspaper/1p2-16431729/water-wars-can-oklahoma-quench-texas-thirstwithout; tim talley, north texas eyes oklahoma water, fort worth star-telegram, feb. 11, 2011, http://newsok.com/north-texas-eyes-oklahoma-water/article/3540133. 16 linda christie, interstate water compacts: a license to hoard?, 1 texas a&m journal of real property law, 15, 26 (2013). 17 tarrant reg’l water dist. v. herrmann, no. civ-07-0045-he, 2009 wl 3922803, at *1 (w.d. okla. nov. 18, 2009). 18 the north texas area encompassing dallas and fort worth increased from 5.1 million residents in 2000 to nearly 6.4 million in 2010, a spike of over 23% and among the most substantial in the united states during this period. see tarrant reg’l water dist. v. herrmann, 133 s.ct. 2120 (2013) (citing dep’t of commerce, census bureau, p. mackun & s. wilson, population distribution and change: 2000 to 2010 (mar. 2011)). 19 oklahoma created the owrb to regulate water and issue permits to appropriate water in the state. see okla. stat. tit. 82, § 105.9. 20 tarrant reg’l water dist., 2009 wl 3922803, at *1; leslie wimmer, trwd working to revise suit in oklahoma water battle, fort worth business press, dec. 7, 2009. 21 tarrant reg’l water dist., 2009 wl 3922803, at *1. 22 see okla. stat. tit. 82, § 105; tarrant reg’l water dist. v. herrmann, 656 f.3d 1222, 1228 (10th cir. 2011). example, one set of statutes placed a 5-year moratorium on the export of water outside the state,23 another applied the moratorium to state, tribal, or intergovernmental cooperative agreements regarding the export of oklahoma water,24 and a third provision required legislative approval for out-of-state water use.25 collectively, these statutes effectively prohibit the issuance of any permit appropriating oklahoma surface water for use in another state. the kiamichi river—from which trwd sought to appropriate and export water—is located within the red river basin. water within the red river basin is apportioned by the red river compact—an interstate compact that was entered into by the states of oklahoma, texas, arkansas, and louisiana in 1978 after 20 years of negotiations.26 the u.s. congress approved the compact in 1980.27 the compact’s purpose was to “provide an equitable apportionment” of water within the red river basin in an effort to “promote interstate comity and remove causes of controversy” among the signatory states.28 the compact divided the river into 5 distinct subdivisions called reaches, each of which was further divided into smaller subbasins.29 ultimately, the supreme court’s interpretation of the compact foreclosed trwd’s ability to obtain a water right permit from oklahoma so long as oklahoma statutes continue to effectively prohibit out-of-state use of water. the section of the compact most central to the dispute in tarrant regional water district v. herrmann was section 5.05(b)(1) that sets forth: “signatory states…have equal rights to the use of runoff originating in subbasin 5 . . . provided no state is entitled to more than 25 percent of the water in excess of 3,000 cubic feet per second.”30 this section governs reach ii, subbasin 5 and was the subject of major tension during the compact’s negotiation because it requires the upstream states of oklahoma and texas to release water from storage to the downstream states of arkansas and louisiana. another section of the compact that owrb relied heavily upon during the lawsuit explicitly provides that the signatory states are free to regulate water within their boundaries so long as those regulations are “not 23 okla stat. tit. 82 § 1b(a). 24 id. tit. 74, § 1221.a. 25 id. tit. 82, § 1085.2(2). 26 red river compact, pub. l. no. 96-564, 94 stat. 3305 (1980). 27 id. 28 red river compact §1.01(a)-(b). other purposes of the compact were to promote a program to reduce pollution in the river, provide a means for enforcement for anti-pollution and anti-deterioration efforts, conserve water, and provide a system for state and joint state planning in allocating the river water. id. §1.01(c)-(e). 29 red river compact §§ 2.12, 4.01. 30 red river compact § 5.05(b)(1). http://stateimpact.npr.org/oklahoma/tarrant-regional-water-district-v-herrmann/ http://stateimpact.npr.org/oklahoma/tarrant-regional-water-district-v-herrmann/ http://findarticles.com/p/articles/mi_qn%204182/is_20080429/ai_n25370946/ http://www.questia.com/newspaper/1p2-16431729/water-wars-can-oklahoma-quench-texas-thirst-without http://www.questia.com/newspaper/1p2-16431729/water-wars-can-oklahoma-quench-texas-thirst-without http://www.questia.com/newspaper/1p2-16431729/water-wars-can-oklahoma-quench-texas-thirst-without http://newsok.com/north-texas-eyes-oklahoma-water/article/3540133 http://newsok.com/north-texas-eyes-oklahoma-water/article/3540133 texas water journal, volume 5, number 1 28 a battle ends, but the fight for water in oklahoma continues inconsistent with its obligations under the compact.”31 in its efforts to obtain water in oklahoma, trwd sought to export both surface water and groundwater from within oklahoma.32 trwd sought to appropriate water from beaver creek and cache creek, both located in reach i, subbasin 2 of the red river basin, and from the kiamichi river located in reach ii, subbasin 5 of the red river basin—with all such water being governed by the compact.33 additionally, trwd sought to export groundwater by entering into an agreement with private landowners in stephens county, oklahoma and through a memorandum of understanding with the apache tribe.34 district court’s opinion concurrent with the filing of its water right applications for water from the red river basin, trwd filed suit in federal district court against the board members of owrb and the oklahoma water conservation storage commission (collectively referred to herein as “owrb”), seeking a declaratory judgment that “oklahoma laws unconstitutionally prevented it from appropriating or purchasing water in oklahoma.”35 specifically, trwd argued that oklahoma’s statutes that prevent out-of-state water sales are barred by the dormant commerce clause and supremacy clause of the u.s. constitution.36 defendant owrb filed a motion to dismiss, or in the alternative for summary judgment as to both of trwd’s claims.37 owrb argued that the district court lacked subject matter jurisdiction because oklahoma repealed its restrictions on out-of-state water sales (even though there was no explicit repeal of the statutes), that the compact controls the issues such that the red river compact commission has primary jurisdiction over resolution of the dispute, and that the compact constitutes congressional approval precluding trwd’s dormant commerce clause and supremacy clause claims.38 the commerce clause, art. i, § 8, cl. 3 of the u.s. constitution, grants congress the exclusive power to regulate the flow of interstate commerce.39 interstate commerce has been defined and explained in common law and specifi31 id. § 2.10. 32 tarrant reg’l water dist., 656 f.3d at 1228. 33 id. 34 id. 35 tarrant reg’l water dist., 2009 wl 3922803, at *1. 36 id. at *3. 37 id. at *1. 38 id. at *1. 39 u.s. constitution article i, § 8, cl. 3. cally includes the interstate movement of water.40 congress’s enumerated grant of power to regulate commerce includes an implicit restriction on state interference with interstate commerce that is referred to as the dormant commerce clause.41 congress may, however, approve of state interference with interstate commerce such that it precludes any commerce clause violation.42 in other words, a state will not run afoul of the commerce clause if congress has expressed intent to allow the states to regulate interstate commerce in some way. the supremacy clause of the u.s. constitution provides that, if congress exercises authority over a field or “occupies the field,” state law within that field’s purview is preempted.43 if congress has not occupied the field, state law will be preempted only to the extent that it is inconsistent with federal law.44 in november 2009, the district court denied owrb’s motion to dismiss on mootness and primary jurisdiction claim, while granting its motion for summary judgment with regard to the dormant commerce clause and supremacy clause claims.45 in addition, the court granted trwd leave to amend its complaint to address claims not covered by the compact.46 in granting owrb’s motion for summary judgment, the court held that congress’s approval of the compact constituted “a sufficiently clear expression” of intent to authorize oklahoma’s regulatory scheme that would otherwise be contrary to commerce clause and supremacy clause principles.47 the court also found that oklahoma’s restriction on out-of-state sales was consistent with the compact’s purpose and language.48 trwd’s amended complaint alleged that oklahoma state law prohibiting the export of water was unconstitutional 40 see new england power co. v. new hampshire, 455 u.s. 331, 338 (1982) (the commerce clause “precludes a state from mandating that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders . . . “); sporhase v. nebraska, 458 u.s. 941, 953 (1982) (stating that water is an “article of commerce” under the commerce clause). 41 united haulers association, inc. v. oneida-herkimer solid waste mgmt. auth., 550 u.s. 330, 338 (2007). 42 northeast bancorp, inc. v. bd. of gov. of fed. reserve sys., 472 u.s. 159, 174, 105 s.ct. 2545, 86 l.ed.2d 112 (1985) (“when congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the commerce clause.”). 43 u.s. constitution article vi, cl. 2; crosby v. nat’l foreign trade council, 530 u.s. 263, 372 (2000). 44 cal. coastal comm’n. v. granite rock co., 480 u.s. 572, 581 (1987). 45 tarrant reg’l water dist., 2009 wl 3922803, at *8. 46 id. 47 id. at *4 -7. 48 id. at *6. texas water journal, volume 5, number 1 29a battle ends, but the fight for water in oklahoma continues because it barred trwd’s purchase of water from private persons in stephens county, oklahoma and from the apache tribe.49 owrb again moved to dismiss, arguing that no justiciable controversy exists and that the amended complaint failed to state a claim.50 the court granted owrb’s motion to dismiss and rendered judgment for owrb for a second time.51 the court explained that no justiciable claim existed because trwd’s stephens county agreement was just that, an agreement, and trwd had not yet filed a permit application for the exportation of groundwater.52 similarly, the court explained that trwd’s memorandum of understanding with the apache tribe was “far too speculative and subject to too many contingencies to set out a controversy ripe for judicial resolution.”53 trwd appealed the district court’s decisions to the u.s. court of appeals for the tenth circuit on august 12, 2010.54 tenth circuit’s opinion on appeal, the tenth circuit addressed the dormant commerce clause and supremacy clause claims originally decided by the district court. specifically, the court considered (1) whether the compact allows signatory states to safeguard their water supply through means that would otherwise violate the dormant commerce clause, and (2) whether the compact preempts oklahoma laws to the extent the laws interfere with trwd’s alleged right to apportion water located in the oklahoma section of reach ii, subbasin 5 for exporting to, and for use in, texas.55 reviewing each of the district court’s decisions de novo,56 the court ultimately affirmed the district court’s decision on the same grounds as the district court and expounded upon the district court’s reasoning.57 49 tarrant reg’l water dist. v. herrmann, no. civ-07-0045-he, 2010 wl 2817220, at *1 (w.d. okla. july 16, 2010). 50 id. at *1. 51 id. at *3. 52 id. at *2. 53 id. at *3. 54 linda c. martin, oklahoma v. texas: water wars, american college of environmental law, (aug. 24, 2010), available at http://www.acoel. org/post/2010/08/24/oklahoma-v-texas-water-wars-.aspx/. 55 tarrant reg’l water dist., 656 f.3d at 1227. 56 id. at 1233. 57 the tenth circuit also affirmed the district court’s dismissal of trwd’s claims associated with its agreement for groundwater in stephens county, oklahoma and its mou with the apache tribe. see tarrant reg’l water dist., 656 f.3d at 1247-50. dormant commerce clause the court examined dormant commerce clause jurisprudence in detail, first explaining the commerce clause and the implied restriction on state regulation of interstate commerce.58 in general, a court will strike down as unconstitutional state discrimination against interstate commerce “unless the state can show a strong public purpose” for such discrimination.59 a state law that facially discriminates against interstate commerce must be examined with the strictest scrutiny to determine if the state is promoting a legitimate local purpose and that there are no nondiscriminatory alternatives.60 and, nondiscriminatory state statutes may be invalid if they impose an undue burden on interstate commerce.61 on the other hand, if the statute’s effects on interstate commerce are inconsequential and the statute regulates a legitimate local interest, “it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”62 in addressing trwd’s dormant commerce clause claim, the court explained that congress can approve a discriminatory state action that would normally be a violation of the commerce clause.63 citing a line of cases, the court provided that whether congress has consented to state regulation of interstate commerce, thus shielding a dormant commerce clause challenge, “depends upon the language of the particular federal statute.”64 the court also concluded that under the sporhase v. nebraska, ex. rel douglas and south-central timber development, inc. v. wunnicke cases, congressional consent should be determined based on whether congress “affirmatively contemplate[d]” its intent to allow a state to engage in economic protectionism with “unmistakable” clarity.65 the court then presented a detailed examination of the compact and determined that the compact explicitly defers 58 id. (stating that the commerce clause “is both an enumerated grant of power to congress and an implicit restriction on state interference with interstate commerce.”). 59 id. (citing city of philadelphia v. new jersey, 437 u.s. 617, 628 (1978)). 60 id. (citing hughes v. oklahoma, 441 u.s. 322, 337 (1979)). 61 id. (citing bibb v. navajo freight lines, inc., 359 u.s. 520, 529 (1959)). 62 id. (citing pike v. bruce church, inc., 397 u.s. 137, 142 (1970)). 63 id. at 1233-34 (“congressional consent can transform otherwise unconstitutional state action into permissible state action”). 64 id. at 1237 (citing ne. bancorp, inc. v. bd. of governors of fed. reserve sys., 472 u.s. 159, 175 (1985), new england power co. v. new hampshire, 455 u.s. 331 (1982), and prudential ins. co. v. benjamin, 328 u.s. 408 (1946)). 65 id. at 1235 (citing south-central timber devel. inc v. wunnicke, 467 u.s. 82, 91 (1984) and sporhase v. nebraska, ex. rel douglas, 458 u.s. 941, 960 (1982)). http://www.acoel.org/post/2010/08/24/oklahoma-v-texas-water-wars-.aspx/ http://www.acoel.org/post/2010/08/24/oklahoma-v-texas-water-wars-.aspx/ texas water journal, volume 5, number 1 30 a battle ends, but the fight for water in oklahoma continues to and recognizes plenary state authority over water use.66 in making this determination, the court noted that the interpretive comments of the compact also provide that “each state is free to continue its existing internal water administration, or to modify it in any manner it deems appropriate.”67 accordingly, the court held in oklahoma’s favor, stating that the compact’s language “contains the clear statement of congressional authorization of state regulation [of interstate commerce] that sporhase and wunnicke require.”68 the court concluded that the compact gives oklahoma wide authority to protect its water against out-of-state transfer and use.69 preemption the court also affirmed the district court’s decision that the compact does not preempt the oklahoma water statutes pursuant to the supremacy clause.70 the court began by examining trwd’s standing, the preemption doctrine derived from the supremacy clause, and the compact’s deference to state water regulation.71 the court stated that trwd had standing to raise the claim because if oklahoma’s statutes are invalid, then trwd would suffer injury through the substantial burdens imposed upon it as an out-of-state water right applicant.72 additionally, the court stated that trwd has standing because its grievance is specific to its application to appropriate oklahoma water in reach ii, subbasin 5 for use in texas, and therefore is not a generalized grievance outside the area protected by law.73 with regard to the preemption doctrine, the court emphasized that the presumption against preemption is especially strong in areas of longstanding state policy such as water regulation.74 the court explained the standards applicable to express preemption and implied preemption, but ultimately rested its decision on the presumption against preemption regarding 66 id. at 1237. 67 id. at 1238. 68 id. at 1237. 69 id. at 1239. 70 id. 71 id. 72 id. at 1240 (citing skull valley band of goshute indians v. nielson, 376 f.3d 1223, 1234 (10th cir. 2004)) (“a party seeking a license from a governmental agency generally has standing to challenge an allegedly invalid law that either imposes substantial burdens upon the applicant or flatly prohibits the activity in question”). 73 id. at 1241 (citing raley v. hyundai motor co., ltd., 642 f.3d 1271, 1275 (10th cir. 2011) (explaining prudential standing factors). 74 id. at 1242. when a state has historically policed a subject area.75 the court stated that “the presumption against preemption is particularly strong in this case because history reveals ‘the consistent thread of purposeful and continued deference of state water law by congress.’”76 the court explained that the compact’s key provisions indicate that congress did not intend to preempt state water laws.77 the court looked to the compact’s statement that “[e]ach state may freely administer water rights and uses in accordance with the laws of that state” and that the compact must not be interpreted to “interfere . . . within [a signatory state’s] boundaries the appropriation, use, and control of water . . . not inconsistent with its obligations under the compact.”78 having been denied any relief from the tenth circuit, trwd made one final appeal to the u.s. supreme court. the supreme court granted trwd’s petition for certiorari on january 4, 2013.79 u.s. supreme court’s opinion before the supreme court, trwd argued that section 5.05(b)(1) of the compact allows each signatory state the right to obtain up to 25% of excess water within reach ii, subbasin 5 from any part of the river, even if such water is within the boundary of another state, because the compact does not expressly prohibit cross-border water rights—meaning cross-border rights were intended.80 as such, trwd claimed that the compact preempts oklahoma statutes that prohibit trwd’s ability to export its apportionment of compact water pursuant to section 5.05(b)(1) from oklahoma. in the alternative, trwd argued that the oklahoma statutes constituted an unconstitutional restraint on interstate commerce in violation of the dormant commerce clause.81 oklahoma argued that the compact drafters’ silence on cross-border rights, on the other hand, meant that cross-border rights were not intended.82 oklahoma claimed victory again when the court affirmed the judgment of the tenth circuit.83 the court held that (1) the compact does not preempt oklahoma statutes because the 75id. at 1241-42. 76 id. at 1242 (citing california v. united states, 438 u.s. 645, 653 (1978)). 77 id. at 1242-43. 78 id. at 1242 (citing red river compact, at § 12.10). 79 tarrant reg’l water dist., 656 f.3d 1222, cert. granted, 2013 wl 49810 (u.s. jan. 4, 2013). 80 tarrant reg’l water dist., 133 s.ct. at 2129. 81 id. at 2136. 82 id. at 2130. 83 id. at 2129. texas water journal, volume 5, number 1 31a battle ends, but the fight for water in oklahoma continues compact does not grant cross-border rights to water; and (2) oklahoma statutes do not violate the dormant commerce clause.84 first, the court addressed trwd’s argument that section 5.05(b)(1) of the compact provided trwd with the right to cross state lines to obtain water and that oklahoma’s water laws interfered with its ability to exercise that right.85 the court reiterated that properly construing section 5.05(b)(1)’s silence is “the key to resolving whether the compact preempts the oklahoma water statutes.”86 statutory interpretation of the compact the court began its analysis by noting that interstate compacts are to be interpreted as contracts using the principles of common law.87 relying on this, the court examined the express terms of the compact as the best indication of the parties’ intent to determine whether cross-border rights were intended.88 in its argument that cross-border rights are granted by section 5.05(b)(1), trwd noted that this section does not specifically restrict the allocation of water to within each state’s respective borders.89 trwd compared this to other sections of the compact, like section 5.03(b) of the compact that provides: “[t]he states of oklahoma and arkansas shall have free unrestricted use of the water of [reach ii, subbasin 3] within their respective states.”90 to evaluate trwd’s expressio unius canon of construction argument91—the argument that when the drafter includes language in 1 portion of a statute and excludes the language in another, then the drafter intended the inclusion or exclusion— the court looked to other sections of the compact.92 the court found that trwd’s argument was not persuasive because it ignores other sections of the compact that cut squarely against its interpretation and would result in “absurd results.”93 the court stated that “at the very least, the problems that arise” 84 id. at 2137. 85 id. at 2129. 86 id. 87 id. (citing texas v. new mexico, 482 u.s. 124, 128 (1987)). 88 id. (citing montana v. wyoming, 131 s.ct. 1765, 1771-72 & n.4 and restatement (second) of contracts § 203(b)(1979)). 89 id. at 2130. 90 id. at 2130-31; red river compact § 5.03(b) (emphasis added). 91 expressio unius est exclusion alterius stands for the maxim that when “congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that congress acts intentionally and purposely in the disparate inclusion or exclusion.” bates v. united states, 522 u.s. 23, 29–30 (1997). 92 tarrant reg’l water dist., 133 s.ct. at 2131. 93 id. from trwd’s interpretation suggest the section’s “silence is ambiguous regarding cross-border rights.”94 however, the court went on to say it is not convinced by trwd’s interpretation because of the well-established principle that states do not easily cede their sovereign powers, the fact that other interstate water compacts have treated cross-border rights explicitly, and the parties’ course of dealing.95 the court then echoed the tenth circuit’s finding regarding a state’s sovereign powers, specifically its power over its navigable waters.96 in finding that the compact should not be interpreted as the signatory states expressing intent to cede their powers, the court stated: states rarely relinquish their sovereign powers, so when they do we would expect a clear indication of such devolution, not inscrutable silence. we think that the better understanding of § 5.05(b)(1)’s silence is that the parties drafted the compact with this legal background in mind, and therefore did not intend to grant each other cross-border rights under the compact.97 the court further examined the language of the compact using the contract interpretation method of looking to “usage of trade.”98 the court reviewed several interstate compacts and found that those compacts generally included clear and unambiguous language if cross-border rights were granted.99 the court stated that the absence of clear language in the compact counts heavily against trwd’s interpretation of it.100 furthermore, the court stated that if it were to accept trwd’s interpretation, monitoring cross-border rights under the compact “would be a herculean task because the compact does not require ongoing monitoring or accounting . . . and not all of the water in subbasin 5 is located or originates in oklahoma.”101 the court subsequently looked to the conduct of the signatory states to the compact. the court determined the fact that neither trwd nor any of the signatory states have pressed for cross-border diversion rights prior to the filing 94 id. at 2132. 95 id. at 2132 (citing oklahoma v. new mexico, 501 u.s. 221, 235 n. 5 (1991)). 96 id. at 2132-33. 97 id. at 2133. 98 id. 99 id. at 2133-2136 (“tellingly, many of these compacts provide for the terms and mechanics of how such cross-border relationships will operate, including who can assert such cross-border rights, . . . who should bear the costs of any cross-border diversions, . . . and how such diversions should be administered.”). 100 id. at 2134. 101 id. (referencing section 2.11 of the compact). texas water journal, volume 5, number 1 32 a battle ends, but the fight for water in oklahoma continues of the suit further undermined trwd’s position that section 5.05(b)(1) grants cross-border rights.102 dormant commerce clause lastly, the court addressed trwd’s dormant commerce clause argument. trwd argued that oklahoma’s statutes impermissibly discriminate against interstate commerce so as to favor local interests by erecting barriers to the distribution of water left unallocated under the compact.103 trwd’s argument was based on the idea that if the supreme court were to “adopt the tenth circuit’s or respondent’s interpretation . . . a substantial amount of reach ii, subbasin 5 water located in oklahoma [will not be] apportioned to any state and therefore is available” to any permit applicant.104 the court rejected trwd’s argument and asserted that trwd’s assumption that the compact leaves some water “unallocated” is erroneous because the compact clearly provides that all signatory states are free to use as much water as they can put to beneficial use, up to the 25% cap or until another state calls for an accounting.105 therefore, the court concluded, “[t]he oklahoma water statutes cannot discriminate against interstate commerce with respect to unallocated waters because the compact leaves no waters unallocated.”106 no cross-border rights to the red river? the holding of the court that no cross-border rights to water in the red river exist between oklahoma and texas likely came as quite a shock to a number of texas water rights holders currently permitted to use water from the red river. in its argument before the supreme court, trwd unfortunately failed to point out that virtually all texas water rights granting permittees the authority to divert water from the red river constitute cross-border rights because the boundary between texas and oklahoma is the south bank of the red river. in 1999, the states of texas and oklahoma entered into the red river boundary compact to definitively locate the state boundary along the red river. the compact defined the oklahoma-texas state boundary as the vegetation line along the south bank of the red river.107 consequently, texas diversions of water from the red river are diversions of water from oklahoma because such diversions are clearly north of the oklahoma-texas state boundary—the vegetation line along 102 id. at 2135. 103 id. at 2136 (quoting trwd’s brief ). 104 id. 105 id. at 2137. 106 id. 107 texas natural resources code ann. § 12.002, art. ii(b). the south bank of the red river. so what does the court’s opinion mean for texas water rights holders diverting water from the red river? although this opinion calls into question the validity of the rights of these texas water rights holders, these rights remain protected based upon the adams-onís treaty of 1819 between the united states and spain (8 stat. 252).108 this treaty guarantees the people of texas a right of reasonable access to the waters of the red river along the state boundary to enable them to reach the waters at all stages and to use the same for beneficial purposes in common with the inhabitants of the state of oklahoma.109 the u.s. supreme court recognized texas’s right of reasonable access granted by the adams-onís treaty of 1819 in oklahoma v. texas, 261 u.s. 340 (1923).110 impact of tarrant decision on other interstate compacts given that more than 2 dozen interstate compacts exist in the united states governing allocation of water, what impact will tarrant have on these other compacts, and any disputes arising from these compacts? the decision in tarrant, although it appears to be of limited applicability, shows the supreme court’s clear support for allowing compacting states to maintain exclusive control over water resources within their boundaries unless the interstate compact includes express language to the contrary. the supreme court recognized a state’s ability to control water within its boundaries as a “core state prerogative.”111 tarrant also indicates that when the language of a compact is deemed ambiguous, the court will look to interpretive tools with a presumption that each state has a sovereign prerogative to control its water resources that it must expressly relinquish.112 regarding the dormant commerce clause, the court side-stepped addressing whether oklahoma statutes placed an undue burden on interstate commerce by disposing of this claim in 2 simple paragraphs explaining, “[t]he oklahoma water statutes cannot discriminate against interstate commerce with respect to unallocated waters because the compact leaves 108 oklahoma v. texas, 261 u.s. 340, 342-43 (1923). 109 id. 110 id. 111 tarrant reg’l water dist., 133 s.ct. at 2133. 112 holly taylor, tarrant regional water district v. herrmann: interpreting silence in interstate water compacts with respect to state boundaries and the right to access water, 17 university of denver water law review 138, 154-55 (2013). texas water journal, volume 5, number 1 33a battle ends, but the fight for water in oklahoma continues no waters unallocated.”113 this side-step leaves open the possibility that the dormant commerce clause might have future applications in interstate compact disputes if statutes place an undue burden on interstate commerce with respect to waters that remain unallocated. the supreme court’s method for interpreting the red river compact in tarrant—examining the express terms of the compact, and then if such terms are ambiguous, deferring to the sovereign power of states, looking to customary practices in other interstate compacts, and examining the conduct of the parties—will likely be employed in future compact disputes.114 in fact, this method may soon be employed in a dispute involving the state of texas over the rio grande compact. on january 27, 2014, texas was granted leave to file a complaint with the supreme court regarding texas’s allegation that the state of new mexico is violating the rio grande compact by allowing new mexico water users to use rio grande surface water, tributary flow, and return flows below elephant butte reservoir beyond what is authorized in the compact.115 new mexico alleges that the compact only requires it to deliver a certain quantity of water to the elephant butte reservoir and that it is not required to deliver any specific quantity to the texas state line.116 a clear dispute between texas and new mexico over what the rio grande compact requires appears to exist, meaning the supreme court, if it hears texas’s complaint, will likely employ the interpretive tools used in tarrant to also resolve this dispute. tarrant could have more specific implications for other intestate compacts, such as the upper niobrara compact to which the state of wyoming is a signatory.117 only a small portion of the upper niobrara river is located within the boundaries of wyoming with the majority of the river flowing within nebraska.118 the compact provides “no restrictions on the use of the surface waters of the upper niobrara river by 113 christine klein, the lesson of tarrant regional water district v. herrmann: water conservation, not water commerce, center for progressive reform blog, http://www.progressivereform.org/cprblog.cfm?idblog=5ca2075e-9126-e28c-666d65e902073c68 (june 19, 2013); tarrant reg’l water dist., 133 s.ct. at 2137. 114 see taylor, supra note 112, at 154-55. 115 texas v. new mexico and colorado, scotusblog, http://www.scotusblog.com/case-files/cases/texas-v-new-mexico-and-colorado/ (last visited april 27, 2014); brief for united states as amicus curiae at 12, texas v. new mexico, no. 220141 (dec. 10, 2013). 116 brief for united states as amicus curiae at 13-14, texas v. new mexico, no. 220141 (dec. 10, 2013). 117 brian a. annes, water law—cooperation abandoned to allow hoarding of water: the supreme court denies right to divert waters across state borders under the red river compact; tarrant reg’l water dist. v. herrmann, 133 s. ct. 2120 (2013), 14 wyoming law review 105, 131 (2014). 118 id. wyoming.”119 the language of the compact does not expressly grant wyoming rights to divert water in nebraska, but only limits the use to wyoming laws and certain limitations within nebraska.120 tarrant could give nebraska the authority to set further limitations on wyoming diverting water from within nebraska since the compact fails to expressly grant cross-border rights to wyoming.121 like oklahoma, nebraska could enact protectionist statutes prohibiting out-of-state applicants from obtaining rights to divert water, thereby preventing wyoming residents from accessing their share of water from the upper niobrara river under the compact.122 future water supplies for north texas following tarrant, it would appear that the ability of an individual or entity within texas to obtain water within oklahoma is foreclosed—and for the time being, that may be true. but hopefully, a day will come when oklahoma realizes that it is wasting a valuable resource that currently just flows wasted into the gulf of mexico—a valuable resource for which north texas entities would be willing to pay significant sums. but that day is no time soon, and until then, trwd and other entities in the rapidly expanding north texas region must identify other sources of water supplies to meet growing demands for water. water supplies from oklahoma were expected to annually provide 165,000 acre-feet of water or more for north texas123—so additional supplies must be identified and developed to replace this substantial water supply. it typically takes about 5 years to build a reservoir— but that doesn’t occur until after 10-15 years of going through the permitting for such reservoir.124 another potential water supply option for north texas is the proposed marvin nichols reservoir that could cost upwards of $3.3 billion to build and require permitting to flood more than 70,000 acres—no guarantee when federal regulators and environmentalists weigh in on the project.125 a second option is moving water from the toledo bend reservoir, but with the reservoir being more than 200 miles from the dallas/fort worth metroplex, and 119 id. (quoting upper niobrara river compact, art. v, 83 stat. 86 (1969)). 120 id. 121 id. 122 id. 123 region c water planning group, 2011 region c water plan at 4c.7 (2011), available at http://www.regioncwater.org/documents/2011regioncwaterplan/chapter%204c_final.pdf. 124 jeremy p. jacobs, water: supreme court wades into bitter texas-okla. feud ahead of expected ‘flood of litigation,’ greenwire (march 12, 2013), http://www.eenews.net/stories/1059977696. 125 id. http://www.progressivereform.org/cprblog.cfm?idblog=5ca2075e-9126-e28c-666d65e902073c68%20 http://www.progressivereform.org/cprblog.cfm?idblog=5ca2075e-9126-e28c-666d65e902073c68%20 http://www.scotusblog.com/case-files/cases/texas-v-new-mexico-and-colorado/%20 http://www.scotusblog.com/case-files/cases/texas-v-new-mexico-and-colorado/%20 http://www.regioncwater.org/documents/2011regioncwaterplan/chapter%204c_final.pdf http://www.regioncwater.org/documents/2011regioncwaterplan/chapter%204c_final.pdf http://www.eenews.net/stories/1059977696 texas water journal, volume 5, number 1 34 a battle ends, but the fight for water in oklahoma continues downhill, the costs for such a water supply option would be significant.126 although the obstacles seem insurmountable, the future development of water supplies in texas isn’t completely bleak. the state of texas, recognizing that its communities desperately need to develop new water supplies, enacted legislation in 2013 that enables the state to create 2 funds—the state water implementation fund for texas and the state water implementation revenue fund for texas—that will set aside $2 billion to help finance projects in the texas state water plan.127 the funding available will assist communities ranging from small rural towns to large metropolitan areas to develop drought-proof water supplies.128 projects for which funding is available include, but are not limited to, conservation and reuse projects, desalination projects, infrastructure projects, and reservoir projects.129 it may be but a small step, given that one large water supply project can easily cost $2 billion, but it is a significant small step nonetheless. tribal fight for rights to water in oklahoma trwd’s efforts to secure water in southeastern oklahoma previously included attempts to secure water, along with other north texas entities, jointly from indian tribes in oklahoma and the state of oklahoma.130 presently, the ability to purchase oklahoma water directly from these indian tribes depends on the outcome of an ongoing dispute between oklahoma and the chickasaw nation and choctaw nation of oklahoma (“indian nations”) that could tie up oklahoma water supplies for years. on august 18, 2011, the indian nations filed a lawsuit in the u.s. district court for the western district of oklahoma to protect the indian nations’ alleged rights to water in oklahoma.131 the lawsuit names as defendants governor mary fallin, the members and executive director of the owrb, the city of oklahoma city, and the oklahoma city water utility trust 126 id. 127 swift: what’s in the legislation?, texas water development board, http://www.twdb.state.tx.us/swift/hb4/index.asp (last visited april 27, 2014). 128 swift: what will swift fund?, texas water development board, http://www.twdb.state.tx.us/swift/projects/index.asp (last visited april 27, 2014). 129 id. 130 oklahoma water resources board, joint state/tribal water compact & water marketing proposals 25 (march 2002), available at https://www. owrb.ok.gov/studies/legislative/southeast/southeast_pdf/status%20report_ part%201.pdf. 131 legal matters, oklahoma water resources board, http://www. owrb.ok.gov/util/legal.php/ (last updated december 2, 2013). (ocwut).132 the lawsuit claims the indian nations have federally protected rights to the water within a 22-county territory in southeastern oklahoma that are “prior and paramount” to any water rights granted by oklahoma.133 the capstone case winters v. united states first recognized federally reserved indian water rights in 1908.134 the u.s. supreme court’s ruling in winters, referred to as the “winters doctrine,” provided that when the federal government reserved lands for indian tribes, this land reservation included by implication a reservation of water appurtenant to such lands to the extent the water was necessary to achieve the purposes intended by the land reservation.135 the u.s. supreme court expanded the winters doctrine in arizona v. california almost 50 years after the winters decision and held that indian reserved water rights are not only for the present needs of the reservation, but also to satisfy the future needs of the reservation.136 in reserving water for future needs, the court held that “enough water was reserved to irrigate all the practicably irrigable acreage on the reservations” because this appeared to be the only feasible and fair way to determine the quantity of water reserved.137 the indian nations claim that federal rights to water in oklahoma are guaranteed to them by the treaty of dancing rabbit creek, act of september 30, 1830, 7 stat. 333, that was later modified by the 1866 treaty of washington, act of april 28, 1866, 14 stat. 769.138 the indian nations’ lawsuit generally seeks (1) declaratory judgments against any action by owrb on a pending application by oklahoma city and ocwut for a permit to use stream water from sardis reservoir in southeastern oklahoma, or any other withdrawal or export of water from the area at issue, unless and until there is initiated a general stream adjudication that satisfies the requirements of the federal law known as the mccarran amendment;139 and (2) permanent injunctions against any such action unless and until a general stream adjudication that satisfies the mccarran amendment is completed.140 132 seconded amended complaint at 8-9, chickasaw nation v. fallin, no. civ-11-927-w (w.d. okla. jan. 26, 2012). 133 id. at 19-21. 134 207 u.s. 564 (1908). 135 id. 136 373 u.s. 546, 600 (1963). 137 id. 138 seconded amended complaint, supra note 133, at 2. 139 the mccarran amendment authorizes the adjudication of federal water rights, including indian water rights held in trust by the united states, and grants consent to join the united states as a defendant in such adjudication. see 43 u.s.c. § 666; co. river water conservation dist. v. united states, 424 u.s. 800, 809-13 (1976). 140 legal matters, oklahoma water resources board, http://www. owrb.ok.gov/util/legal.php/ (last updated december 2, 2013). http://www.twdb.state.tx.us/swift/hb4/index.asp http://www.twdb.state.tx.us/swift/projects/index.asp http://www.twdb.state.tx.us/swift/projects/index.asp%20%28last%20visited%20april%2027%2c%202014%29. http://www.twdb.state.tx.us/swift/projects/index.asp%20%28last%20visited%20april%2027%2c%202014%29. https://www.owrb.ok.gov/studies/legislative/southeast/southeast_pdf/status%20report_part%201.pdf https://www.owrb.ok.gov/studies/legislative/southeast/southeast_pdf/status%20report_part%201.pdf https://www.owrb.ok.gov/studies/legislative/southeast/southeast_pdf/status%20report_part%201.pdf http://www.owrb.ok.gov/util/legal.php/ http://www.owrb.ok.gov/util/legal.php/ http://www.owrb.ok.gov/util/legal.php/ http://www.owrb.ok.gov/util/legal.php/ texas water journal, volume 5, number 1 35a battle ends, but the fight for water in oklahoma continues in response to the indian nations’ lawsuit, on february 10, 2012, the oklahoma attorney general filed on behalf of owrb to initiate such mccarran amendment adjudication proceedings to protect and accurately determine all rights to the use of water in the kiamichi, clear boggy, and muddy boggy stream systems and moved to dismiss the indian nations’ federal lawsuit as “a premature effort to have federal courts usurp oklahoma’s management of waters of its state.”141 at the time of this filing, the oklahoma attorney general transmitted a letter to “oklahomans and others with water rights to protect” regarding the indian nations’ lawsuit and how it threatens the security of the water resources in southeastern oklahoma.142 of particular note, the attorney general discounted the indian nations’ claim that they are “protectors of waters and natural resources” because the indian nations have, on multiple occasions, expressed interest in selling water to texas.143 owrb’s stream adjudication was subsequently removed by the united states to the u.s. district court for the western district of oklahoma on march 12, 2012, in part, because removal of the case would facilitate resolution of the common federal questions underlying the oklahoma stream adjudication and the indian nations’ lawsuit.144 after removal to federal court, the federal judge assigned to both cases requested briefing regarding whether the 2 suits should be consolidated.145 the request for briefing on consolidation was subsequently withdrawn and both cases were stayed so that the parties could continue mediation that began in january 2012.146 mediation ended in january 2013, and with the foundation of a full year of mediation, the parties began direct negotiations. as of june 2014, both lawsuits continue to be stayed as negotiations continue.147 in july 2013, the chickasaw nation governor and a spokesman for the governor of oklahoma both felt that the negotiations were moving in the right direction and appeared 141 id. 142 letter from attorney general of oklahoma e. scott pruitt to oklahomans (feb. 10, 2012), available at http://www.owrb.ok.gov/util/pdf_util/ lawsuitdocs/coverletter_owrb-app.pdf. 143 id. 144 notice of removal, okla. water res. bd. v. united states, no. civ-12275-w (w.d. okla. march 12, 2012). 145 order, okla. water res. bd. v. united states, no. civ-12-275-w (w.d. okla. march 13, 2012). 146 order, okla. water res. bd. v. united states, no. civ-12-275-w (w.d. okla. march 27, 2012). 147 frequently asked questions: water control, city of oklahoma city, https://www.okc.gov/waterrights/faq.html (last visited february 13, 2014); order, okla. water res. bd. v. united states, no. civ-12-275-w (w.d. okla. may 13, 2014). hopeful that a settlement could be reached.148 if a settlement cannot be reached between oklahoma and the indian nations, the u.s. district court for the western district of oklahoma will likely have to interpret the treaty of dancing rabbit creek to determine whether it grants the indian nations reserved rights to water.149 although the treaty of dancing rabbit creek does not expressly provide for reserved water rights, the court could hold in accordance with u.s. supreme court jurisprudence that the indian nations have implied reserved water rights.150 but, the quantity of water that may be granted to the indian nations by those implied rights is completely uncertain. what is certain is that if the lawsuit between oklahoma and the indian nations is not settled, this legal battle will likely drag out for years, if not decades,151 meaning any future rights to use water in southeastern oklahoma will be on hold and water will continue to be wasted and inaccessible to those entities that really need it in north texas. the fight for water continues as populations continue to grow and drought conditions persist, there is no doubt that additional water supplies must be developed to meet these needs. in an ideal world, the states of texas and oklahoma and the chickasaw and choctaw nations would work together to ensure that sufficient water supplies are developed for the good of all. sadly, we do not live in an ideal world—meaning as water resources become scarcer, the legal battles for these water supplies will continue. 148 sean murphy, chickasaw governor hopeful on water lawsuit talks, native american times (july 21, 2013), http://www.nativetimes.com/index. php/news/environment/8987-chickasaw-governor-hopeful-on-water-lawsuit-talks459. 149 wyatt m. cox, a reserved right does not make a wrong, 48 tulsa law review 373, 395-96 (2012). 150 id. at 396. 151 see charles carvell, indian reserved water rights: impending conflict or coming rapprochement between the state of north dakota and north dakota indian tribes, 85 north dakota law review 1, 49 (2009) (identifying other state water rights adjudications involving indian water rights that often took decades to complete and typically cost in the millions of dollars). http://www.owrb.ok.gov/util/pdf_util/lawsuitdocs/coverletter_owrb-app.pdf http://www.owrb.ok.gov/util/pdf_util/lawsuitdocs/coverletter_owrb-app.pdf http://www.nativetimes.com/index.php/news/environment/8987-chickasaw-governor-hopeful-on-water-lawsuit-talks459 http://www.nativetimes.com/index.php/news/environment/8987-chickasaw-governor-hopeful-on-water-lawsuit-talks459 http://www.nativetimes.com/index.php/news/environment/8987-chickasaw-governor-hopeful-on-water-lawsuit-talks459 83rd texas state legislature: summaries of water-related legislative action texaswaterjournal.org an online, peer-reviewed journal published in cooperation with the texas water resources institute volume 4, number 2 2013 texas water journal http://texaswaterjournal.org volume 4, number 2 2013 issn 2160-5319 texas water journal editor-in-chief todd h. votteler, ph.d. guadalupe-blanco river authority editorial board kathy a. alexander, ph.d. robert gulley, ph.d. robert mace, ph.d. texas water development board todd h. votteler, ph.d. guadalupe-blanco river authority ralph a. wurbs, ph.d. texas water resources institute texas a&m university texaswaterjournal.org the texas water journal is an online, peer-reviewed journal devoted to the timely consideration of texas water resources management and policy issues. the journal provides in-depth analysis of texas water resources management and policies from a multidisciplinary perspective that integrates science, engineering, law, planning, and other disciplines. it also provides updates on key state legislation and policy changes by texas administrative agencies. for more information on twj as well as twj policies and submission guidelines, please visit texaswaterjournal.org. the texas water journal is published in cooperation with the texas water resources institute, part of texas a&m agrilife research, the texas a&m agrilife extension service, and the college of agriculture and life sciences at texas a&m university. managing editor kathy wythe texas water resources institute texas a&m institute of renewable natural resources layout editor leslie lee texas water resources institute texas a&m institute of renewable natural resources website editor ross anderson texas water resources institute texas a&m institute of renewable natural resources cover photo: as texas continues to face water challenges and drought, many communities are seeking to conserve water in various sectors, including lawn and landscape water use. ©jose manuel gelpi diaz, crestock http://texaswaterjournal.org http://texaswaterjournal.org 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action texas water resources institute texas water journal volume 4, number 2, pages 28–46 editor’s note: september 1 of every odd-numbered year is the date that new legislation from the texas legislature session that ended the previous spring typically goes into effect. with this in mind, the texas water journal invited 4 organizations that work closely with the texas legislature to provide their take on the changes to texas water policy and law that were made during the 2013 session. the opinions expressed in these summaries are the opinions of the individual organizations and not the opinion of the texas water journal or the texas water resources institute. organizations: • texas water conservation association • water environment association of texas • sierra club, lone star chapter • texas alliance of groundwater districts commentary: 83rd texas state legislature: summaries of water-related legislative action texas water journal, volume 4, number 2 citation: robbins d, batterton c, castleberry b, kramer k, steinbach sa. 2013. commentary: 83rd texas state legislature: summaries of water-related legislative action. texas water journal. 4(2):28-46. available from: https://doi.org/10.21423/twj.v4i2.6999. © 2013 dean robbins, carol batterton, brad castleberry, ken kramer, stacey a. steinbach. this work is licensed under the creative commons attribution 4.0 international license. to view a copy of this license, visit https://creativecommons.org/ licenses/by/4.0/ or visit the twj website. keywords: texas water law, texas legislature https://doi.org/10.21423/twj.v4i2.6999 https://creativecommons.org/licenses/by/4.0/ https://twj-ojs-tdl.tdl.org/twj/index.php/twj/about#licensing texas water journal, volume 4, number 2 2983rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action short name or acronym descriptive name asr aquifer storage and recovery bpat backflow prevention assembly testers dfc desired future conditions fy fiscal year gcd groundwater conservation district hcr house concurrent resolution hb house bill hoa homeowners’ association lbb legislative budget board poa property owners’ association puc public utility commission of texas sb senate bill seco state energy conservation office sjr senate joint resolution ssos sanitary sewer overflows swift state water implementation fund for texas swirft state water implementation revenue fund for texas tagd texas alliance of groundwater districts tceq texas commission on environmental quality twca texas water conservation association twdb texas water development board tds total dissolved solids terms used in paper texas water journal, volume 4, number 2 30 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action as the 83rd texas legislature edged closer to adjournment, the prospect of obtaining critical funding, once and for all, to secure the state’s water future, was still uncertain. questions about the appropriate balance of funding between water and education, and whether and how water-funding issues should be presented to the voters, still were unresolved. ultimately, those questions were addressed through the passage of house bill (hb) 4, hb 1025, and senate joint resolution (sjr) 1, and a special session on water funding was avoided. hb 4, authored by state representative allan ritter and sponsored by senator troy fraser, creates a water implementation fund to be administered by a restructured texas water development board (twdb) to provide low interest loans for projects in the state water plan. hb 1025, by representative jim pitts and senator tommy williams, is a supplemental appropriations bill that transfers $2 billion out of the economic stabilization fund (the rainy day fund) to the water implementation fund contingent upon voter approval of sjr 1. sjr 1 is a joint resolution by senator williams and representative pitts that, if approved by the voters in november, will amend the texas constitution to create funding mechanisms in the state treasury but outside the general revenue fund that will allow the twdb to provide the financial assistance prescribed in hb 4. “chairmen ritter and fraser deserve special recognition for their visionary efforts,” commented leroy goodson, twca’s general manager. “chairman ritter was correct when he observed that it is absolutely critical to secure viable, long-term funding for water infrastructure, which is undeniably the lifeblood of the sustained economic growth and development of our state,” goodson continued. “we must not squander this exceptional opportunity to leave such a critical legacy for future texans. our economy depends on it, our municipalities depend on it, and when you get right down to it, our quality of life depends on it.” governor rick perry, lieutenant governor david dewhurst, and house speaker joe straus also worked diligently to find solutions to the issues that might have otherwise derailed the water-funding plan. the 2012 state water plan, prepared by the twdb, recommends 562 unique water supply projects to meet the state’s projected needs for additional water supplies over the next 50 years. if implemented, these projects would result in an additional 9 million acre-feet per year by 2060 to meet the anticipated 8.3 million acre-feet shortfall. although the twdb has provided financial assistance for water projects for decades, texas previously has not had a comprehensive strategy for funding the state water plan. it’s our turn now just ahead is the critical juncture where policy and people converge — where voters must take ownership of future water supply issues by confirming this landmark legislation at the ballot box in november. what citizens do with this unique opportunity will depend in large measure upon what water leaders do to promote understanding that: 1) the long-term stability and growth of the texas economy depend on the provision of ample water for household, commercial, industrial, and agricultural use; and 2) state funding can significantly reduce the total cost of financing regional and local projects. what very well could provide a viable template for this upcoming election is the process through which a proposed constitutional amendment (proposition 2) gained voter approval during the november 8, 2011 general election. this amendment allows the twdb to authorize bonds on an ongoing basis so long as the dollar amount of bonds outstanding at any one time does not exceed $6 billion. as with proposition 2, there are many and varied stakeholders who are committed to assuring that sjr 1 is passed. without voter approval, the new funding mechanisms will not exist and the $2 billion from the rainy day fund will not be available for use. much can and should be done to educate the voters on this critical election. twca will be working with its members and others to ensure success. for additional and ongoing information about this crucial effort, please visit www.twca.org. more details about the water-funding legislation and a comprehensive summary of other water legislation passed by the 83rd texas legislature can be obtained on our website. on the threshold of securing the state’s water future by dean robbins, texas water conservation association priority bills passed by 83rd (r) house bills (hb) hb 4 : ritter, allan (r); fraser, troy (r) relating to the creation and funding of the state water implementation fund for texas to assist the texas water development board (twdb) in the funding of certain water-related projects. general remarks: chapter 6, water code, is amended to change the governance of the twdb to a full-time 3 member board with expertise in engineering, finance, and the field of law. geographic diversity is also required. chapter 15, water file:///\\afs23\twri\protect\group\twri\media\texas%20water%20journal\6.%20vol%204,%20no%202\legislative%20wrap-up\www.twca.org http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb00004 http://www.house.state.tx.us/members/member-page/?district=21 http://www.senate.state.tx.us/75r/senate/members/dist24/dist24.htm texas water journal, volume 4, number 2 3183rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action dams located on private property if the dam impounds less than 500 acre-feet at maximum capacity, has a hazard classification of low or significant, is located in a county with a population of less than 350,000, and is not located in a city. last action: 9-1-13 g earliest effective date hb 738: crownover, myra (r); nelson, jane (r) relating to the review of the creation of certain proposed municipal utility districts by county commissioners courts. general remarks: section 54.0161, water code, is amended to modify procedures for the tceq to receive input from a commissioners court on the proposed creation of a municipal utility district in the county but outside the corporate limits of a municipality. last action: 9-1-13 g earliest effective date hb 788: smith, wayne (r); hinojosa, chuy (d) relating to regulation of greenhouse gas emissions by the tceq. general remarks: chapter 382, health and safety code, is amended allow the tceq to issue permits for greenhouse gas emission to the extent required by federal law. permit processes are not subject to a contested case hearing. the tceq may impose fees only to the extent necessary to cover costs of implementation. last action: 6-14-13 g earliest effective date hb 857: lucio iii, eddie (d); ellis, rodney (d) relating to the frequency of water audits by certain retail public utilities. general remarks: chapter 16, water code, currently requires all utilities providing potable water service to perform and file with the tw db every 5 years an audit computing the utility’s water loss. water utilities that receive financial assistance from the board are required to do this annually. the board is required to develop appropriate methodologies and submission dates based on population served. this legislation requires all retail public utilities providing potable water service to a population of more than 3,300 connections or receiving financial assistance from the tw db to perform and file the audit annually. all other retail public utilities would still be required to perform and file the report every 5 years. last action: 9-1-13 g earliest effective date hb 1025: pitts, jim (r); williams, tommy (r) relating to making supplemental appropriations and code, is amended to establish a state water implementation fund for texas to be administered by the tw db. the fund consists of any money transferred, deposited, or dedicated to the fund by law. a trust company shall hold and invest the fund. the twdb may use the fund to establish a revolving loan program to implement the state water plan. the twdb is given guidance on the percentage of money to be applied to rural, conservation, and reuse projects. the tw db may make loans for up to 30 years at an interest rate not less than 50% of the rate of interest available to the board. regional water planning groups are directed to prioritize projects using criteria in the legislation. the board shall establish a system for prioritizing projects pursuant to legislative criteria. the board may transfer money to various other accounts authorized by law. an advisory committee to the twdb is created. conforming amendments are made to chapter 15 and 17, water code. see also senate joint resolution (sjr) 1, hb 1025. last action: 9-1-13 g earliest effective date hb 252: larson, lyle (r); hegar, glenn (r) relating to water shortage reporting by water utilities. general remarks: chapter 13, water code, is amended to require a retail public utility and each entity from which the utility is obtaining wholesale water service for the utility’s retail system to notify the texas commission on environmental quality (tceq) when the utility or entity is reasonably certain that the water supply will be available for less than 180 days. the tceq is required to adopt rules to implement the legislation. last action: 9-1-13 g earliest effective date hb 597: guillen, ryan (d); eltife, kevin (r) relating to boater education and examinations on preventing the spread of exotic harmful or potentially harmful aquatic plants, fish, and shellfish. general remarks: chapter 31, parks and wildlife code, is amended to require that a boater education course or equivalency examination under this section include information on how to prevent the spread of exotic harmful or potentially harmful aquatic plants, fish, and shellfish, including methods for cleaning boating equipment. last action: 5-24-13 g earliest effective date hb 677: geren, charlie (r); eltife, kevin (r) relating to the regulation and enforcement of dam safety by the tceq. general remarks: section 12.052, water code, is amended to exempt from state dam safety requirements http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb00738 http://www.house.state.tx.us/members/member-page/?district=64 http://www.senate.state.tx.us/75r/senate/members/dist12/dist12.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb00788 http://www.house.state.tx.us/members/member-page/?district=128 http://www.senate.state.tx.us/75r/senate/members/dist20/dist20.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb00857 http://www.house.state.tx.us/members/member-page/?district=38 http://www.senate.state.tx.us/75r/senate/members/dist13/dist13.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01025 http://www.house.state.tx.us/members/member-page/?district=10 http://www.senate.state.tx.us/75r/senate/members/dist4/dist4.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb00252 http://www.house.state.tx.us/members/member-page/?district=122 http://www.senate.state.tx.us/75r/senate/members/dist18/dist18.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb00597 http://www.house.state.tx.us/members/member-page/?district=31 http://www.senate.state.tx.us/75r/senate/members/dist1/dist1.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb00677 http://www.house.state.tx.us/members/member-page/?district=99 http://www.senate.state.tx.us/75r/senate/members/dist1/dist1.htm texas water journal, volume 4, number 2 32 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action reductions in appropriations and giving direction and adjustment authority regarding appropriations. general remarks: section 33 of the bill appropriates $2 billion out of the economic stabilization fund to the state water implementation fund of texas contingent upon voter approval of sjr 1 and passage of hb 4. last action: 6-14-13 g earliest effective date hb 1079: smith, wayne (r); hancock, kelly (r) relating to the procedural requirements for action by the tceq on applications for production area authorizations. general remarks: chapter 27, water code, is amended to exempt certain applications related to uranium from the contested case hearing process. a uranium mining application must incorporate certain information relating to groundwater quality. last action: 6-14-13 g earliest effective date hb 1106: larson, lyle (r); estes, craig (r) relating to the identification and operation of vessels in the waters of this state. general remarks: procedures and information required for boater registration are modified. certain vessels operated on coastal waters must be equipped with visual distress signals. last action: 9-1-13 g earliest effective date hb 1241: guillen, ryan (d); deuell, bob (r) relating to the adoption of rules by the parks and wildlife commission to protect the public water of this state. general remarks: chapter 66, parks and wildlife code, is amended to allow the tpw d to adopt and enforce rules to require a person leaving public water to drain from a vessel or portable container on board the vessel any water that has been collected from or come in contact with public water. these rules do not apply to salt water. last action: 6-14-13 g earliest effective date hb 1461: aycock, jimmie don (r); fraser, troy (r) relating to customer notification of significant water loss by a retail public utility. general remarks: chapter 13, water code, is amended to require a retail public utility that files a water audit required by water code section 16.021, to notify each of its customers of the water loss reported. the utility may do so either on its annual consumer confidence report or on the next water bill a customer receives after the water audit is filed. last action: 9-1-13 g earliest effective date hb 1554: rodriguez, justin (d); campbell, donna (r) relating to the authority of a municipality to file a lien for the costs of abatement of a floodplain ordinance violation. general remarks: chapter 54, local government code, is amended to establish a procedure for a municipality to abate a violation of a floodplain ordinance by causing the work necessary to bring the real property into compliance and placing a lien on the property to recover the costs incurred. last action: 9-1-13 g earliest effective date hb 1563: king, tracy (d); hegar, glenn (r) relating to fees of office for directors of groundwater conservation districts. general rem arks: chapter 36, water code, is amended to increase the fees for a director of a groundwater district from $150 per day to $250 per day. the annual cap would remain $9,000. last action: 9-1-13 g earliest effective date hb 1600: cook, byron (r); nichols, robert (r) relating to the continuation and functions of the public utility commission of texas (puc), to the transfer of certain functions from the tceq to the puc. general remarks: this is the puc sunset bill. it includes the transfer to the puc of the tceq’s water and wastewater rate jurisdiction under chapters 12 and 13 water code. see also sb567. last action: 9-1-13 g earliest effective date hb 1675: bonnen, dennis (r); nichols, robert (r) relating to governmental entities subject to the sunset review process. general remarks: section 2.03 of the bill places the sulphur river basin authority under the texas sunset act as if it w ere a state agency. unless the authority is continued in existence, it is abolished on sept. 1, 2017. last action: 6-14-13 g earliest effective date hb 1685: price, four (r); whitmire, john (d) relating to the continuation of the self-directed and semiindependent status of the texas state board of public accountancy, the texas board of professional engineers, and the texas board of architectural examiners. general remarks: the self-directed semi-independent agency project act describing the responsibilities and powers of the texas board of professional engineers, the texas state http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01079 http://www.house.state.tx.us/members/member-page/?district=128 http://www.senate.state.tx.us/75r/senate/members/dist9/dist9.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01106 http://www.house.state.tx.us/members/member-page/?district=122 http://www.senate.state.tx.us/75r/senate/members/dist30/dist30.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01241 http://www.house.state.tx.us/members/member-page/?district=31 http://www.senate.state.tx.us/75r/senate/members/dist2/dist2.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01461 http://www.house.state.tx.us/members/member-page/?district=54 http://www.senate.state.tx.us/75r/senate/members/dist24/dist24.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01554 http://www.house.state.tx.us/members/member-page/?district=125 http://www.senate.state.tx.us/75r/senate/members/dist25/dist25.htm http://www.senate.state.tx.us/75r/senate/members/dist25/dist25.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01563 http://www.house.state.tx.us/members/member-page/?district=80 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01600 http://www.house.state.tx.us/members/member-page/?district=8 http://www.senate.state.tx.us/75r/senate/members/dist3/dist3.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01675 http://www.house.state.tx.us/members/member-page/?district=25 http://www.senate.state.tx.us/75r/senate/members/dist3/dist3.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01685 http://www.house.state.tx.us/members/member-page/?district=87 http://www.senate.state.tx.us/75r/senate/members/dist15/dist15.htm texas water journal, volume 4, number 2 3383rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action board of public accountancy, and the texas board of architectural examiners, is redesignated as chapter 472, government code. numerous changes are made. last action: 9-1-13 g earliest effective date hb 1973: lucio iii, eddie (d); hegar, glenn (r) relating to the provision of water by a public utility or water supply or sewer service corporation for use in fire suppression. general rem arks: chapter 341, health and safety code, is amended to authorize a municipality to adopt fire flow standards established by the tceq for an investor-owned utility or water supply corporation providing service to certain residential areas within the city or its extraterritorial jurisdiction. the applicability to certain residential areas and minimum standards are prescribed in the bill. last action: 9-1-13 g earliest effective date hb 2105: lucio iii, eddie (d); lucio, eddie (d) relating to municipally owned utility systems. general rem arks: section 1502, government code, relating to public securities for municipal utilities, is amended to authorize a municipality to acquire and maintain channels or bodies of water know n as resacas. a utility system located in a county contiguous to the gulf and bordering the united states may collect service charges authorized under this section. last action: 6-14-13 g earliest effective date hb 2362: keffer, jim (r); birdwell, brian (r) relating to the audit and review of river authorities. general remarks: chapter 49, water code, and chapter 322, government code, are amended to authorize the legislative budget board (lbb) to periodically review the effectiveness and efficiency of the policies, management, fiscal affairs, and operations of a river authority. the lbb must conduct a review of the lower colorado river authority and the brazos river authority before conducting a review of other river authorities. last action: 9-1-13 g earliest effective date hb 2615: johnson, eric (d); fraser, troy (r) relating to reporting and information availability requirements for persons impounding, diverting, or otherwise using state water. general remarks: chapter 11, water code, is amended to increase the penalty for failure to timely file a water use report and to establish a penalty for failure to make monthly water use information available to the tceq upon request. the penalty for either violation is established as $100 per day for a surface water right authorizing the appropriation of 5,000 acre-feet or less per year and $500 per day for a water right authorizing the appropriation of more than 5,000 acre-feet per year. a surface water right is exempt from cancellation for non-use to the extent the non-use results from drought or curtailment of water by the tceq. last action: 9-1-13 g earliest effective date hb 2704: callegari, bill (r); hegar, glenn (r) relating to the electronic submission of bids for construction contracts for certain conservation and reclamation districts. general remarks: chapter 49, water code, is amended to authorize a district to receive bids by electronic transmission. the aggregate of change orders allowed is increased from 10% to 25% of the original contract price. last action: 6-14-13 g earliest effective date hb 2781: fletcher, allen (r); campbell, donna (r) relating to rainwater harvesting and other water conservation initiatives. general remarks: chapter 447, government code, is amended so that requirements for rainwater harvesting systems for state buildings apply to both indoor and outdoor water use. chapter 341, health and safety code, is amended to require that a privately owned rainwater harvesting systems with a capacity of more than 500 gallons that has an auxiliary water supply have a backflow prevention assembly or air gap. chapter 580, local government code, is amended to expand the applicability of training requirements for cities and counties related to rainwater harvesting standards. last action: 9-1-13 g earliest effective date hb 3233: ritter, allan (r); fraser, troy (r) relating to interbasin transfers of state water. general remarks: section 11.085, water code, relating to interbasin transfers of water, is amended to eliminate a provision requiring an assessment of the projected effect on user rates and fees for each class of ratepayers; to ensure that an evidentiary hearing be limited to issues related to requirements in this section; to make the notice requirement more manageable; to clarify the factors to be considered to assess whether detriments to the basin of origin are less than the benefits to the receiving basin; to allow for an extension or renew al of a contract that is the basis of the transfer; and to exempt from the requirements a transfer to serve a retail http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb01973 http://www.house.state.tx.us/members/member-page/?district=38 http://www.senate.state.tx.us/75r/senate/members/dist18/dist18.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb02105 http://www.house.state.tx.us/members/member-page/?district=38 http://www.senate.state.tx.us/75r/senate/members/dist27/dist27.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb02362 http://www.house.state.tx.us/members/member-page/?district=60 http://www.senate.state.tx.us/75r/senate/members/dist22/dist22.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb02615 http://www.house.state.tx.us/members/member-page/?district=100 http://www.senate.state.tx.us/75r/senate/members/dist24/dist24.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb02704 http://www.house.state.tx.us/members/member-page/?district=132 http://www.senate.state.tx.us/75r/senate/members/dist18/dist18.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb02781 http://www.house.state.tx.us/members/member-page/?district=130 http://www.senate.state.tx.us/75r/senate/members/dist25/dist25.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb03233 http://www.house.state.tx.us/members/member-page/?district=21 http://www.senate.state.tx.us/75r/senate/members/dist24/dist24.htm texas water journal, volume 4, number 2 34 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action water utility located partly within and partly outside the basin of origin. last action: 9-1-13 g earliest effective date hb 3511: ritter, allan (r); eltife, kevin (r) relating to adjudication of claims under water contracts with local government entities. general remarks: chapter 271, local government code, is amended to waive sovereign immunity to suit for a local government for adjudicating a claim for a breach of contract regarding the sale or delivery by a local government of not less than 1,000 acre-feet of reclaimed water intended for industrial use. damages for breach of such a contract may include actual damages, specific performance, or injunctive relief. the bill also contains the provisions of sb 958. last action: 6-14-13 g earliest effective date hb 3604: burnam, lon (d); hegar, glenn (r) relating to the implementation of a drought contingency plan by wholesale and retail public water suppliers and irrigation districts. general remarks: section 16.055, water code, currently requires implementation of water conservation and drought plans in areas of the state w here an emergency due to drought has been declared by the governor or a political subdivision. this bill would provide for penalties for failure to implement the conservation or drought plan. last action: 9-1-13 g earliest effective date hb 3605: burnam, lon (d); hegar, glenn (r) relating to the evaluation by the twdb of applications for financial assistance for certain retail public utilities. general remarks: chapter 17, water code, is amended to require the tw db, for a retail public utility serving 3,300 or more connections that applies for financial assistance, to review the utility’s water conservation plan for compliance with the board’s best management practices and issue a report to the utility and the legislature. last action: 9-1-13 g earliest effective date senate bills (sb) sb 198: watson, kirk (d); dukes, dawnna (d) relating to restrictive covenants regulating droughtresistant landscaping or water-conserving turf. general remarks: chapter 202, property code, is amended to prohibit a property owners’ association (poa) from restricting a property owner from using drought-resistant landscaping or water-conserving natural turf. the poa may require the submission of a landscape plan for review and approval to ensure aesthetic compatibility with other landscaping in the subdivision. last action: 9-1-13 g earliest effective date sb 204: nichols, robert (r); price, four (r) relating to the continuation and functions of the texas board of professional engineers. general remarks: chapter 1001, occupations code, is amended to continue in existence the texas board of professional engineers to 2025. various changes are made to the agency’s authority. last action: 9-1-13 g earliest effective date sb 293: williams, tommy (r); ritter, allan (r) relating to the authority of certain water districts to hold meetings by teleconference or videoconference. general remarks: chapter 551, government code, is amended to allow a water district or authority w hose territory includes land in 3 or more counties to hold certain special called meetings by conference call. last action: 5-10-13 g earliest effective date sb 567: watson, kirk (d); geren, charlie (r) relating to rates for water service, to the transfer of functions relating to the economic regulation of water and sewer service from the tceq to the puc. general remarks: the rate jurisdiction of the tceq under chapters 12 and 13, water code, are transferred to the puc. comprehensive procedural changes are made to the rate-making process for investor-owned utilities. these procedures vary depending on the number of taps or connections served. conforming changes are made to other chapters of the water code and the special district local law s code. the changes generally take effect september 1, 2014, except the office of public utility counsel may begin intervening in cases at the tceq effective september 1, 2013. last action: 9-1-13 g earliest effective date sb 611: lucio, eddie (d); lucio iii, eddie (d) relating to the irrigation powers and functions of certain water districts. general remarks: numerous changes are made to chapters 51, 55, and 58, water code, to change the manner in which water control and improvement districts, water improvement districts, and irrigation districts engaged http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb03511 http://www.house.state.tx.us/members/member-page/?district=21 http://www.senate.state.tx.us/75r/senate/members/dist1/dist1.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb03604 http://www.house.state.tx.us/members/member-page/?district=90 http://www.senate.state.tx.us/75r/senate/members/dist18/dist18.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=hb03605 http://www.house.state.tx.us/members/member-page/?district=90 http://www.senate.state.tx.us/75r/senate/members/dist18/dist18.htm http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00198 http://www.senate.state.tx.us/75r/senate/members/dist14/dist14.htm http://www.house.state.tx.us/members/member-page/?district=46 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00204 http://www.senate.state.tx.us/75r/senate/members/dist3/dist3.htm http://www.house.state.tx.us/members/member-page/?district=87 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00293 http://www.senate.state.tx.us/75r/senate/members/dist4/dist4.htm http://www.house.state.tx.us/members/member-page/?district=21 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00567 http://www.senate.state.tx.us/75r/senate/members/dist14/dist14.htm http://www.house.state.tx.us/members/member-page/?district=99 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00611 http://www.senate.state.tx.us/75r/senate/members/dist27/dist27.htm http://www.house.state.tx.us/members/member-page/?district=38 texas water journal, volume 4, number 2 3583rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action in the delivery of irrigation water determine assessments and charges against irrigable land. these changes arise from the urbanization of districts that originally delivered primarily irrigation water. a provision in chapter 58, water code, requiring a district engineer to study and investigate certain construction plans is repealed. chapter 51 is also amended to address the authority of a preservation district as related to a particular water supply project. last action: 9-1-13 g earliest effective date sb 634: davis, wendy (d); collier, nicole (d) relating to regulating faulty on-site sewage disposal systems in the unincorporated areas of a county as a public nuisance. general rem arks: chapter 343, health and safety code, is amended to include in the definition of public nuisance a surface discharge from an on-site sew age disposal system. the county may use any reasonable means of abatement necessary to bring the system into compliance if the owner fails to abate the nuisance as ordered by the court. last action: 6-14-13 g earliest effective date sb 654: west, royce (d); anchia, rafael (d) relating to the enforcement of water conservation and animal care and control ordinances of a municipality by civil action or quasi-judicial enforcement. general remarks: chapter 54, local government code, is amended to authorize a municipality to bring a civil action or a quasijudicial action for the enforcement of an ordinance relating to water conservation measures, including watering restrictions, and relating to animal care and control. last action: 9-1-13 g earliest effective date sb 655: birdwell, brian (r); king, phil (r) relating to the exercise of the power of eminent domain by certain authorized entities. general remarks: chapter 1, special district local law s code, and chapter 1, water code, are amended to authorize an entity governed by either code to exercise the power of eminent domain only for a public use in accordance with section 17, article i, texas constitution. last action: 5-18-13 g earliest effective date sb 656: paxton, ken (r); button, angie (r) relating to providing transparency in the taxing and budgeting process of certain local governments. general remarks: various provisions of chapters 102 and 111, local government code, are amended to establish additional procedural requirements for a municipality or county to adopt a budget. the procedures require a record vote and details about revenues to be collected. last action: 9-1-13 g earliest effective date sb 902: fraser, troy (r); callegari, bill (r) relating to the operation, powers, and duties of certain water districts. general remarks: t his approximately 30-page bill generally supported by water districts makes numerous changes to the authority of water districts contained in chapters 49, 51, and 54, water code. related provisions of chapter 388, health and safety code, and chapters 375 and 552, local government code, are also amended. districts operating under the applicable chapters of the water code should review these changes carefully. groundwater districts and water supply corporations may also be impacted by certain provisions. last action: 9-1-13 g earliest effective date sb 958: fraser, troy (r); keffer, jim (r) relating to the liability of certain special-purpose districts or authorities providing water to a purchaser for the generation of electricity. general remarks: chapter 113, civil practices and remedies code, is amended to waive sovereign immunity for any water district or authority for breach of a written water supply contract under which water is to be provided to a purchaser for use in connection with the generation of electricity. remedies may include any remedy available for breach of contract that is not inconsistent with the terms of the contract, but may not include consequential or exemplary damages. sovereign immunity is not waived in federal court or for a cause of action for a negligent or intentional tort. last action: 6-14-13 g earliest effective date sb 1212: estes, craig (r); phillips, larry (r) relating to the applicability of certain provisions concerning the transfer of exotic species to certain transfers of water that supply populous areas. general rem arks: chapter 66, parks and wildlife code, is amended so that certain water transfers (appears to be bracketed for the north texas municipal water district situation) do not create violations of statutes prohibiting the import of harmful species and do not require a permit under this section. last action: 5-24-13 g earliest effective date http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00634 http://www.senate.state.tx.us/75r/senate/members/dist10/dist10.htm http://www.house.state.tx.us/members/member-page/?district=95 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00654 http://www.senate.state.tx.us/75r/senate/members/dist23/dist23.htm http://www.house.state.tx.us/members/member-page/?district=103 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00655 http://www.senate.state.tx.us/75r/senate/members/dist22/dist22.htm http://www.house.state.tx.us/members/member-page/?district=61 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00656 http://www.senate.state.tx.us/75r/senate/members/dist8/dist8.htm http://www.house.state.tx.us/members/member-page/?district=112 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00902 http://www.senate.state.tx.us/75r/senate/members/dist24/dist24.htm http://www.house.state.tx.us/members/member-page/?district=132 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb00958 http://www.senate.state.tx.us/75r/senate/members/dist24/dist24.htm http://www.house.state.tx.us/members/member-page/?district=60 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb01212 http://www.senate.state.tx.us/75r/senate/members/dist30/dist30.htm http://www.house.state.tx.us/members/member-page/?district=62 texas water journal, volume 4, number 2 36 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action sb 1282: duncan, robert (r); price, four (r) relating to deadlines for proposals for adoption by certain districts or authorities of desired future conditions of relevant aquifers. general remarks: chapter 36, water code, is amended to ensure that a proposal for the adoption of desired future conditions is not required before may 1, 2016. districts in a management area are not prevented from voting on a proposal before that date. last action: 9-1-13 g earliest effective date sb 1297: watson, kirk (d); branch, dan (r) relating to written electronic communications between members of a governmental body. generalal remarks: chapter 551, government code, is amended to provide that written communications between members of a governmental body about public business do not constitute a meeting or deliberation so long as they are posted to an on-line message board meeting specified requirements. last action: 9-1-13 g earliest effective date senate joint resolution (sjr) sjr 1: williams, tommy (r); pitts, jim (r) proposing a constitutional amendment providing for the creation and use of funds in the state treasury to provide financial assistance for certain projects related to economic development and water infrastructure. general remarks: a constitutional amendment is proposed to create 2 new accounts outside of the general revenue fund, the state water implementation fund of texas (swift) and the state water implementation revenue fund of texas (swirft), to be administered by the twdb to finance projects included in the state water plan. also see hb 4 and hb 1025. last action: 11-5-13 g election date http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb01282 http://www.senate.state.tx.us/75r/senate/members/dist28/dist28.htm http://www.house.state.tx.us/members/member-page/?district=87 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sb01297 http://www.senate.state.tx.us/75r/senate/members/dist14/dist14.htm http://www.house.state.tx.us/members/member-page/?district=108 http://www.capitol.state.tx.us/billlookup/history.aspx?legsess=83r&bill=sjr0001 http://www.senate.state.tx.us/75r/senate/members/dist4/dist4.htm http://www.house.state.tx.us/members/member-page/?district=10 texas water journal, volume 4, number 2 3783rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action the 83rd regular session of the texas legislature adjourned may 27, 2013. according to texas legislature online, 5,868 house and senate  bills were introduced, and 1,413 bills passed. this session addressed water, transportation, education, and tax reductions, although in some cases not to the extent that everyone wished. this article highlights those bills that passed, as well as those that did not pass, that relate to water quality. a table is included that summarizes an expanded list of highlighted bills passed by the legislature this session. state water plan funding  the most notable accomplishment of this session was the funding of the state water plan. in the end, all 3 pieces of legislation addressing funding  of the state water plan passed and received the requisite signature of the governor (albeit with a line item veto for house bill (hb) 1025). voters will still need to approve a constitutional amendment in november to actually fund the water plan, and so public education efforts must continue to keep the focus on water until that time. the following are the key pieces of legislation related to water plan funding: • hb 4 (ritter) defines the state water implementation fund for texas (swift), the state water implementation revenue fund for texas (swirft), and how these funds will be managed by the texas water development board (twdb).  • hb 1025 (pitts) is the supplemental appropriations bill that will allocate the $2 billion for use by the swift if voters approve the constitutional amendment in sjr 1. • senate joint resolution 1 (williams) is the joint resolution that will amend the constitution to create the swift and swirft, allowing the $2 billion to be dedicated for water infrastructure needs. this resolution will need voter approval in november.  other bills that passed: • desalination: the legislature passed house concurrent resolution (hcr) 59, which creates a joint interim committee to study seawater desalination on the texas coast.  • drought: hb 252 (larson) requires retail public utilities and wholesale water and sewer service suppliers to notify the texas commission on environmental quality (tceq) when the certainty of the utility’s water supply is less than 180 days from being compromised. • conservation: hb 857 (lucio iii) requires annual water loss audits for utilities over 3,300 connections, and hb 1461 (aycock) requires a retail public utility that is required to file a water audit with the twdb to notify each of the utility’s customers as well. • water rates: hb 1600 (cook), the public utility commission of texas (puc) sunset bill, among other things, transfers the tceq’s water and wastewater rate jurisdiction to the puc. • interbasin transfers: hb 3233 (ritter) streamlines the interbasin transfer permitting process for surface water rights at the tceq. • professional engineers: senate bill (sb) 204 (nichols) requires professional engineers to be fingerprinted in order to apply for an initial or renewal license. bills that did not pass: • sso reporting: unfortunately, hb 824 (callegari),  which would have exempted sanitary sewer overflows (ssos) less than 1,000 gallons from being reported to the tceq within 24 hours, did not pass. the good news is that as a result of hearing testimony, the tceq and members of the legislature are now aware of the issues with reporting of minor spills on a 24-hour basis. • biosolids: none of the bills proposing to change the definition of class b sludge passed.  these were hbs 2996, 2997, 2998, and 3678. in addition, hb 3255 (kacal), which would have prohibited sale of composted biosolids by a political subdivision outside its boundaries, did not pass. • compliance history: hb 1714 (smith) would have discontinued tceq’s compliance history program. • bpat licensing: hb 2179 (davis) would have transferred the backflow prevention assembly testers (bpat) licensing program from the tceq to the texas state board of plumbing examiners. • stormwater professionals: hb 3289 (martinez) would have required licensing of stormwater professionals. water environment association of texas: legislative wrap-up of bills related to water quality by carol batterton, executive director, water environment association of texas, and brad castleberry, lloyd gosselink rochelle & townsend, p.c.1 1assistance also provided by sarah wells, 3rd-year law student, university of texas school of law texas water journal, volume 4, number 2 38 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action other key issues: tceq procedure the much-discussed and controversial sb 957, by troy fraser, which proposed a change from the current tceq permitting process to an environmental protection agencytype notice and comment process, failed to come to fruition following intensive and thorough negotiations. as part of the negotiations, the proposal for the bill was changed to maintain the basic structure of the current contested case hearing process, but the proposal included tighter timelines and other restrictions to shorten the time the process takes from start to finish. however, the measure still failed to move forward. we anticipate that the legislature and stakeholders will work together in the interim to find a balanced approach to this problem that will be able to move forward next session. open government the legislature also made a concerted effort this session to improve government transparency on many fronts. high-profile transparency measures initiated by the texas comptroller of public accounts, including hb 14 and sb 14, were the subject of intense negotiations with political subdivisions due largely to additional compliance costs and rumored potential impacts to public bond ratings. however, these 2 bills ultimately failed to become law because of a successful parliamentary procedure challenge. the measures that did succeed in becoming law included these amendments to the open meetings act: • hb 2414 (button) amends current legal requirements to open meetings of governmental bodies held by videoconference. • sb 293 (williams) sets forth new procedures by which certain large water districts are permitted to hold a meeting by videoconference or telephone conference call. • sb 1368 (davis) and sb 1297 (watson) both allow public officials to make certain communications outside of a proper public meeting via message boards that are visible to the public. see water environment association of texas’ summary of bill highlights in table 1 and also at www.weat.org. http://www.weat.org texas water journal, volume 4, number 2 3983rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action table 1. 83rd session water environment association of texas bill highlights bill author summary hb 4 ritter relating to the creation and funding of the state water implementation fund for texas to assist the twdb in the funding of certain water-related projects. hb 45/ sb 162 flynn/van de putte relating to the occupational licensing of members of the military and spouses of members of the military hb 45 and sb162 were companion bills. sb 162 passed. hb 168/ sb 902 callegari/ fraser relating to the operation, powers, and duties of certain water districts. hb 168 and sb 902 were companion bills. sb 902 passed. hb 252 larson requires that all retail public utilities report how long they have available water supplies to tceq. the bill includes additional notification requirements for utilities with supplies of less than 180 days. hb 340/ sb 1532 rodriguez, eddie/ zaffirini relating to the power of tceq to authorize certain injection wells that transect or terminate in the edwards aquifer. hb 340 and sb 1532 were companion bills. sb 1532 passed. hb 597 guillen relating to boater education and examinations on preventing the spread of exotic harmful or potentially harmful aquatic plants, fish, and shellfish. hb 857 lucio iii relating to the frequency of water audits by certain retail public utilities. hb 970 rodriguez, eddie relating to regulation of cottage food products and cottage food production operations. hb 1025 pitts relating to making supplemental appropriations and reductions in appropriations and giving direction and adjustment authority regarding appropriations. hb 1241 guillen relating to the adoption of rules by the parks and wildlife commission to protect the public water of this state from the spread of aquatic invasive species. hb 1307/sb 567 geren/ watson relating to rates for water service, to the transfer of functions relating to the economic regulation of water and sewer service from the tceq to other puc, and to the duties of the office of public utility counsel regarding the economic regulation of water service. hb 1307 and sb 567 were companion bills. sb 567 passed. hb 1461 aycock relating to customer notification of significant water loss by a retail public utility. hb 1509/sb 654 anchia/ west relating to the enforcement of water conservation and animal care and control ordinances of a municipality by civil action or quasi-judicial enforcement; providing civil penalties. hb 1509 and sb 654 were companion bills. sb 654 passed. hb 1600/sb 206 cook/ nichols relating to the continuation and functions of the puc, to the transfer of certain functions from the tceq to the puc, to the rates for water service, and to the functions of the office of public utility counsel; authorizing a fee. hb 1600 and sb 206 were companion bills. hb 1600 passed. hb 2105/sb 1817 lucio iii/ lucio relating to municipally owned utility systems; authorizing the imposition of fees by a utility board of trustees. hb 2105 and sb 1817 were companion bills. hb 2105 passed. sjr 1 williams proposing a constitutional amendment providing for the creation of the swift and the swirft for texas to assist in the financing of priority projects in the state water plan. constitutional amendment must be passed by voters in november. sb 204/ hb 1676 nichols/ price relating to the continuation and functions of the texas board of professional engineers; changing a fee. sb 204 and hb 1676 were companion bills. sb 204 passed. hb 3233 ritter relating to interbasin transfers of state water. sb 634/ hb 1932 davis/ strickland relating to regulating faulty on-site sewage disposal systems in the unincorporated areas of a county as a public nuisance; providing a criminal penalty. sb 634 and hb 1932 were companion bills. sb 634 passed. texas water journal, volume 4, number 2 40 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action without a doubt the most publicly visible water issue in the regular session of the 83rd texas legislature was the debate over “funding the state water plan.” the proposal of a state constitutional amendment to create new funding mechanisms for projects in the state water plan, the passage of house bill (hb) 4, and the transfer of $2 billion out of the so-called rainy day fund for the new state water implementation fund for texas (swift) — taken together — constitute historic water legislation. of course, history will only be made if texas voters in november 2013 approve the constitutional amendment. the funding structure and process outlined in hb 4 and the actual transfer of money out of the rainy day fund (in hb 1025) will take effect only if the constitutional amendment passes muster with the voters. the public and media attention to the fight at the capitol over “funding the state water plan,” however, obscured other important water decisions made by state legislators in the regular session. the texas legislature took action to advance water conservation, curb water loss, respond more effectively to drought situations, and enhance water management in certain other ways. those actions included seminal appropriations for water conservation and environmental flow studies and the enactment of a variety of new water management laws, including several key provisions of hb 4 that have garnered only limited attention. also important is that the legislature turned away many other pieces of legislation that would have undermined management and protection of our state’s water resources. spending state money for water management as is usually the case, the texas legislature in its biennial state appropriations bill allocated tens of millions of dollars to the texas water development board (twdb), the state’s primary water planning and financing agency. other water programs and activities, of course, were funded at the texas commission on environmental quality (tceq), texas state soil and water conservation board, texas parks and wildlife department, and other state agencies. thanks to a relatively healthy state revenue forecast for the 2014–2015 biennium, these programs were funded at decent, although hardly spectacular, levels. buried in the appropriations for the twdb, however, were some interesting earmarks. these earmarks, which reflected a growing interest in water management activities (and the willingness of key legislators to get money appropriated for those activities), included • $1 million for fiscal year (fy) 2014 for competitive grants to water conservation education groups (may require matching funds); • $1.8 million in each year of the biennium for the texas alliance for water conservation demonstration project, a partnership project in the texas panhandle to enhance agricultural water efficiency to extend the life of the ogallala aquifer; • $1.5 million in each year of the biennium for grants to groundwater districts for agricultural water conservation (grants will only go to districts that require metering of water use and may only be used to offset half the cost of each meter); • $407,000+ in fy 2014 and $326,000+ in fy 2015 to develop an online tool to consolidate water use, annual water loss, and annual water conservation reports and make them publicly viewable online; and • $2 million in fy 2014 for the continued study of environmental flows and instream flows for river basins, of which at least $750,000 shall be used in the bay/ basin area that covers the guadalupe river basin and san antonio bay. two disappointments were the failure of the legislature once again to appropriate requested funds for the state’s water education program, known as water iq, and the governor’s veto of a line item appropriating funds to the houston advanced research center for aquifer research. some lawmakers dismiss water iq as just an “advertising campaign.” exactly — just as legislators use “advertising campaigns” to get voters to vote for their re-election, water iq uses “advertising” to get the public’s attention and to educate people about the sources of their water and the need to conserve it. several entities, such as north texas municipal water district, have spent their own money to implement water iq and have experienced positive results in water savings. supporters of water iq think those results could be replicated statewide. indeed the legislative budget board (lbb) staff in its texas state government efficiency and effectiveness report released early in the session recommended a $6 million appropriation for water iq for the biennium, but to no avail. the governor’s veto of the $1.5 million per year appropriation for aquifer research was publicly explained on the basis that the appropriation was duplicative of an appropriation to the twdb for demonstration projects related to water reuse, aquifer storage and recovery, and other innovative water storage approaches. while the legislature did appropriate $3 million to the twdb for fy 2014 for such demonstration projects, the money that would have gone to the houston advanced research center, however, was money for basic research about aquifers, not funding for water supply demonstration projects. overall, though, the legislative appropriations for water sierra club: advancing water conservation and management by ken kramer, water resources chair, lone star chapter, sierra club texas water journal, volume 4, number 2 4183rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action management activities for the 2014–2015 biennium represent incremental steps forward. if these expenditures become part of the base budgets of the agencies and are increased over time, they will represent a very positive development. at the least they show that legislative appropriators are interested in water management and not just water infrastructure. using state financial assistance wisely legislative leaders also demonstrated a serious concern that decisions about state financial assistance for water projects and programs reflect commitments to advancing water conservation, curbing water loss, and prioritizing projects based on rational criteria. for example, among its extensive provisions for funding the state water plan for restructuring the twdb, hb 4 • requires the twdb to undertake to apply not less than 20% of the money disbursed in each 5-year period to support projects, including agricultural irrigation projects, that are designed for water conservation or reuse; • requires the twdb to undertake to apply not less than 10% of the money disbursed in each 5-year period to support projects for rural political subdivisions or agricultural water conservation; • prohibits the use of state financial assistance for a water project if the applicant has failed to submit or implement a water conservation plan; • requires regional water planning groups in their prioritization of projects for state financial assistance to consider at a minimum such factors as the feasibility, viability, sustainability, and cost-effectiveness of a project — factors which should work in favor of conservation projects; and • requires the twdb in its process for prioritization of projects to receive state financial assistance to consider (among other criteria) the demonstrated or projected effect of the project on water conservation, including preventing the loss of water (taking into consideration whether the applicant has filed a water audit that demonstrates the applicant is accountable with regard to reducing water loss and increasing efficiency in the distribution of water). in addition, another significant but unheralded piece of legislation enacted by the 83rd legislature, hb 3605 by state representatives burnam, callegari, and lucio iii (senate sponsor: senator hegar) • requires a retail public water utility that receives financial assistance from the twdb to use a portion of that assistance or any additional assistance provided by the twdb to mitigate the utility’s system water loss if, based on its water audit, the water loss meets or exceeds a threshold to be established by twdb rule; • requires the twdb in passing on an application for financial assistance from a retail public water utility serving 3,300 or more connections to evaluate the utility’s water conservation plan for compliance with twdb’s best management practices for water conservation and issue a report to the utility detailing the results of that evaluation; and • requires the twdb not later than january 1 of each odd-numbered year to submit to the legislature a written summary of the results of the evaluations noted above. thus, not only does hb 3605 have the potential to address water loss directly and to promote the use of best management practices for water conservation by utilities, it also has the potential for providing important data to legislators and the public about how well utilities are progressing in achieving water conservation. if utilities are not seen as making strides in that regard, the stage could be set for new water conservation requirements imposed by the legislature. avoiding water waste and advancing water efficiency in addition to the use of state financial assistance to guide the actions of water suppliers seeking that assistance, the legislature also took steps through direct legislation to encourage water utilities to avoid water waste and advance water efficiency. among the myriad of new laws enacted by the legislature in that regard were the following: hb 857 (lucio iii/hegar) requires each retail public water utility with more than 3,300 connections to conduct a water audit annually to determine its water loss and to submit that audit to the twdb (a retail public water utility with 3,300 or less connections will continue to be required to conduct and submit a water audit once every 5 years computing the utility’s system water loss during the preceding year) — the initial annual water audit must be submitted by may 1, 2014. hb 1461 (aycock/fraser) requires each retail public water utility required to file a water audit with the twdb to notify each of the utility’s customers of the water loss reported in the water audit (the tceq will adopt rules to implement this requirement, but the notice may be done through the utility’s annual consumer confidence report or on the next bill the customer receives after the water audit is filed). senate bill (sb) 198 (watson/dukes) prevents a homeowners’ association (hoa) from prohibiting or restricting a property owner from using drought-resistant landscaping or water-conserving natural turf but allows a hoa to require the property owner to submit a detailed description of a plan for the installation of such landscaping or turf for review and approval by the hoa to ensure to the extent practicatexas water journal, volume 4, number 2 42 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action ble maximum aesthetic compatibility with other landscaping in the subdivision. the legislation also states that the hoa may not unreasonably deny or withhold approval of the plan or unreasonably determine that the proposed installation is aesthetically incompatible. sb 385 (carona/keffer) authorizes a municipality or a county or a combination thereof to establish and implement a program to provide directly or through a third party financing for a permanent improvement to real property that is intended to decrease water or energy consumption or demand, with the repayment of the financing of a qualified project to be done through an assessment collected with property taxes on the assessed property; sets out the procedures, requirements, and options by which such a program may be established, implemented, and operated by the local government through contracts and other mechanisms. sb 654 (west/anchia) specifically grants to municipalities the authority to enforce through a civil action ordinances related to water conservation measures, including watering restrictions (although some municipalities have taken the position that they already had this authority, this legislation makes it clear that they do and gives municipalities more flexibility in enforcing water conservation ordinances since there may be a reluctance to use criminal law in this regard). sb 700 (hegar/kacal, raney) requires • the state energy conservation office (seco) to develop a template for state agencies and higher education institutions to use in preparing their respective comprehensive energy and water management plan (such a plan is already required); • each agency and higher education institution to set percentage goals for reducing its use of water, electricity, gasoline, and natural gas and include those goals in its energy and water management plan; • the plan to be updated annually (currently updates are required biennially); • seco biennially to report to the governor and the lbb the state and effectiveness of management and conservation activities of the agencies and higher education institutions; and • seco to post that report on its website. getting serious about water data and management the legislature also proved receptive in its 83rd regular session to other initiatives to make sure that water utilities and others were getting serious about such important responsibilities as reporting water use, overseeing rainwater harvesting systems, and implementing drought contingency plans. examples of such efforts that were enacted into law include the following: hb 2615 (johnson/fraser) increases the penalty for failure of a water rights holder to submit an annual water use report to the tceq (in part because the penalties previously were so low, only about 60% of water rights holders outside watermaster areas reported their annual water use by the deadline) and requires the tceq to establish a process for submitting these reports electronically through the internet. hb 2781 (fletcher/campbell) makes a number of changes in current law governing the use and oversight of rainwater harvesting systems. for example hb 2781 • requires a privately owned rainwater harvesting system with a capacity of more than 500 gallons that has an auxiliary water supply to have a specified mechanism for ensuring physical separation between the rainwater system and the auxiliary supply (to prevent any possible contamination) and • requires the permitting staff of each county and municipality with a population of 10,000 or more whose work relates directly to permits involving rainwater harvesting to receive appropriate training (provided by the twdb) regarding rainwater harvesting standards. hb 3604 (burnam, lucio iii/hegar) requires an entity to implement its water conservation plan and its drought contingency plan, as applicable, when it is notified that the governor has declared its respective county or counties as a disaster area based on drought conditions; clarifies the authority of the tceq to enforce this requirement. (previously the law only required the entity to implement either plan, despite the fact that water conservation should be an ongoing activity as contrasted to short-term responses to drought conditions; during the 2011 drought a number of entities in drought disaster areas reportedly did not implement mandatory water use restrictions). holding the line on some questionable legislation the story of the legislative process, of course, is not just a story of the bills that passed into law. more often it is the story of the bills that did not become law. there were many positive pieces of legislation that failed to run the gauntlet of the legislative process, including, for example, all of the bills that would have clarified the authority of the state water conservation advisory council to make statutory and appropriations recommendations. by and large, however, the majority of water bills that died were ones that were opposed by the environmental community and/or by other interests concerned about proper management and protection of water resources. following are some examples of these bills of concern that died: hb 824 (callegari) would have eliminated the requirement that all sewer overflows be reported to the tceq within 24 hours (the threshold for reporting would have been more texas water journal, volume 4, number 2 4383rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action than 1,000 gallons; overflows below that level would have been exempted from reporting). hb 824 passed the house in amended form but never made it out of the senate natural resources committee. hb 3234 (ritter/fraser) would have set what many water attorneys considered unrealistic deadlines for the processing of water rights permits that could have led to inadequate review of permit applications and might have interfered with the public’s opportunity to impact permitting decisions. hb 3234 passed the house but was voted down in senate natural resources committee. sb 1894 (fraser) would have prevented the revision and possible strengthening of adopted state standards for instream flows and freshwater inflows to bays and estuaries until at least 2022, far beyond the time specified for review by most of the bay/basin area stakeholder committees that were set up under the environmental flows standards setting process created by sb 3 in 2007. sb 1894 was withdrawn from the senate natural resources committee hearing agenda and never seen again after a number of senators raised concerns about delaying the review and revision process. in addition, several pieces of legislation that had been introduced to “streamline” the process for developing and implementing marine water desalination or brackish groundwater desalination projects and/or aquifer storage and recovery (asr) projects did not make it through the process. although many environmental groups believe that desalination and asr projects increasingly are going to be part of our water supply and indeed have positive appeal compared to other infrastructure projects (for example, surface water reservoirs), they are concerned about taking away important authority from state agencies and/or groundwater management districts to oversee and permit these projects in a responsible manner. these proposed bills were characterized by many as “not ready for prime time.” but desalination is still on the front burner for discussion. due to the passage of house concurrent resolution 59 (hunter/lucio), a joint interim study of “water desalination” should get underway in the fall of 2013. conclusion the general session of the 83rd texas legislature was a “water session” in many respects. although it may be remembered most for the establishment of funding for state water plan projects (assuming the voters ratify the proposed constitutional amendment), there were many other significant legislative actions on water, and those actions indicate that our state officials are looking at water much more seriously than perhaps ever before. the drought conditions of recent years — continuing and intensifying in a large portion of texas in the summer of 2013 — have driven home the point that our state cannot afford to waste our precious water resources. moreover, the shrinking surface water reservoirs in many parts of texas and indeed the number of bone-dry reservoirs in west texas are stark reminders that water infrastructure alone will not address our water problems. the 83rd texas legislature is to be commended for tackling the infrastructure funding issue and taking important steps forward on water conservation and management. but there are many river miles ahead of us in reaching a comprehensive solution to our state’s water issues. texas water journal, volume 4, number 2 44 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action unlike in previous sessions, it was no surprise when the 83rd legislative regular session was inundated with water bills, particularly when it came to water infrastructure financing. certainly, the largest water issue during 2013 — and one of the biggest overall this session — was providing a mechanism for adequately funding the state water plan. through the passage of 2 bills and 1 resolution, texas legislators took an important, even revolutionary step, toward meeting the long-term water needs of the state. as my colleagues in this collaboration for texas water journal have adeptly explained the substance of that legislation in their own columns, i will focus on other bills from the 83rd session that may affect groundwater use and management. from the groundwater management perspective, the “beginning” (the bill filing deadline) and end of session painted very different pictures. of the 150-plus bills tracked by the texas alliance of groundwater districts (tagd), nearly 2 dozen would have significantly impacted groundwater conservation district (gcd) operations and authorities in this state. in prospect, those bills loomed as large as bills filed during the 82nd legislative session, when groundwater ownership, the texas water development board (twdb) sunset review, and an overhaul of the desired future conditions (dfc) process was on the agenda. even still, and despite efforts of legislators, staffers, and stakeholders to reach consensus, almost all of the groundwater bills filed this session failed to make it to sine die. in fact, just 2 housekeeping-type groundwater bills made it to the governor: senate bill (sb) 1282, extending the deadline for proposing the next round of dfcs to may 1, 2016, and house bill (hb) 1563, increasing the maximum fees of office for a gcd board member from $150/day to $250/day (with the annual cap remaining at $9,000). what didn’t pass with so few groundwater bills that passed and so many that garnered attention, it is likely that what didn’t pass this session is just as important — if not more so — than what did pass. these bills covered a myriad of notable issues, including brackish groundwater utilization, aquifer storage, groundwater use reporting requirements, long-term permitting, well construction standards and enforcement, dfc appeals, and hydraulic fracturing. of these, bills related to brackish groundwater, long-term permitting, and hydraulic fracturing received a great deal of stakeholder attention and gained momentum at some point in one or both chambers. perhaps more than in previous sessions, there also seemed to be multiple, competing bills filed on these 3 subjects, each with a different approach or philosophy. groundwater and hydraulic fracturing like many states, gas exploration and development in texas has increased dramatically over the past 10 years. of tagd-member gcds with hydraulic fracturing in their jurisdictions, half are experiencing significant activity and nearly three-fourths are observing impacts to groundwater as a result of fracturing activities. but recently, a debate has emerged over a gcd’s ability to require a permit for groundwater withdrawals related to hydraulic fracturing. though some gcds require permits without difficulty, others waive permit requirements out of concerns related to varying interpretations of the exemption described in texas water code § 36.117(b)(2). a look at the plain language and legislative history of this section supports the notion that the exemption language was not intended to encompass continuing oil and gas operations, of which hydraulic fracturing is a non-conventional example. but because the exemption language was adopted before the hydraulic fracturing boom in this state, these operations are not specifically addressed, and the exemption’s applicability is being inferred in various ways. ultimately, an interpretation that withdrawals related to fracturing activities are exempt from permit requirements creates a situation where these significant users of groundwater are exempted from regulatory requirements that all other significant users of groundwater must follow. this interpretation results in a greater regulatory burden for some users — agriculture, municipal, industry — and not others. three bills aimed to resolve the confusion this session, and 1 bill, sb 873, passed the senate after being amended on the floor to include language to address oil and gas industry concerns. that bill would have expressly authorized a gcd to require a permit for oiland gas-related groundwater withdrawals, while at the same time incorporating an “interim permit” concept to ensure that operations would not be delayed during the permitting process. though the bill failed to move in the house, it likely presents a positive starting point for resolution of this issue during the next session. long-term permitting questions related to long-term groundwater permitting continue to garner attention at the legislature. with the recent drought, water-supply certainty is more important than ever, and a few large water providers have been pushing for a statewide requirement for long-term or automatically renewed permits (though some gcds already incorporate such concepts in their rules). proposed solutions during the 83rd texas legislative wrap-up by stacey a. steinbach texas alliance of groundwater districts texas water journal, volume 4, number 2 4583rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action 83rd session ranged from 30-year operational permits for transporters to automatic permit renewals with proportional cutbacks when “conditions” change. though stakeholders could generally agree with the latter approach, they could not reach consensus in fully defining the changed “conditions” and other details related to implementing cutbacks. a gcd’s mandate to balance private property rights, the highest practicable level of groundwater production, and conservation of the aquifer necessitates some flexibility for gcds in managing this subsurface resource, especially in light of the court opinion in edwards aquifer authority v. day. all parties agree that no gcd can guarantee a certain level of groundwater availability for 30 years into the future and that arbitrary cutbacks should be (and already are) prohibited. finding specific language that satisfies the needs of long-term groundwater investors and adequately addresses a gcd’s local needs in accordance with statutory requirements has been challenging. “brackish” groundwater the groundwater issue that received the most attention during this session was brackish groundwater utilization, including desalination and aquifer storage and recovery. early versions of filed bills would have essentially deregulated groundwater with a total dissolved solids (tds) level of 1,000 parts per million (ppm) or more in order to promote its treatment and use. many gcds had concerns with such a management strategy for numerous reasons; the most significant being that “brackish” groundwater is often hydrologically connected to other sources of groundwater. production of such water may cause freshwater levels to drop or actually affect the quality of freshwater as the hydraulic pressure regimes change. another important concern was that in some areas of the state, groundwater now being used without advanced desalination treatment and being managed by gcds would be considered “brackish” under such a definition and therefore could no longer be managed by the gcd. additionally, because a tds concentration cannot be determined until after a well is drilled, and even then the concentration can fluctuate over the life of the well, a bright-line numerical definition creates a “chicken and egg” scenario that actually inhibits the certainty that most parties are seeking. legislators, staffers, and stakeholders worked hard on this issue during the session and though no legislation passed, all came to agree that hydrological connection to currently used sources of groundwater is a more important demarcation than an arbitrary tds level that has different significance in different parts of the state. one bill, hb 2578, as amended, would have incorporated concepts of “brackish groundwater production zones” to be identified by the texas water development board (twdb), with the assistance of gcds and other stakeholders. in those areas, gcds would be required to issue permits with 30-year permit terms and unlimited production, unless the gcd could show that cutbacks were necessary to respond to a significant change in aquifer levels or adverse effects to water quality. though the bill didn’t address all stakeholder concerns, the concept of identifiable, “distinct” brackish groundwater zones based on scientific research likely makes for a good launching point for stakeholder discussions during the interim. the upside to this issue is that there is a consensus among all stakeholders that use of brackish groundwater needs to be incorporated as a new water supply strategy wherever feasible. what did pass in addition to the bills/resolution related to funding the state water plan and the bills that amended the dfc proposal deadline and increased maximum fees of office for a gcd board member, the following bills passed during the 83rd legislature may impact groundwater management. this list is not intended to be exhaustive and merely provides a starting point for legislative research by interested individuals. new gcds • sb 1835 extends the deadline for the confirmation election for the calhoun county gcd to december 31, 2016 and authorizes a tax if approved by voters. • sb 980 creates the reeves county gcd and authorizes a tax, subject to voter approval before december 31, 2018. • sb 1840 creates the deep east texas gcd (consisting of shelby, san augustine, and sabine counties) and authorizes a tax, subject to voter approval before september 1, 2015. water conservation/drought • hb 252 requires a retail public utility and any of its wholesalers to notify the texas commission on environmental quality (tceq) when they reasonably believe that less than 180 days of water is available. • hb 857 requires retail public utilities serving more than 3,300 connections or receiving financial assistance from the twdb to conduct an annual water loss audit (other retail public utilities are still on a 5-year schedule). • hb 1461 requires retail public utilities to provide notification of water loss to customers after each water loss audit. • hb 3604 requires utilities to implement water conservation plans and drought contingency plans when a texas water journal, volume 4, number 2 46 83rd texas state legislature: summaries of water-related legislative action 83rd texas state legislature: summaries of water-related legislative action disaster emergency is declared due to drought. • hb 3605 requires the twdb to review a utility’s compliance with its water conservation plan when considering financial assistance applications from retail public utilities serving more than 3,300 customers. • sb 1 provides appropriations for water conservation grants, including $1.5 million per year for 2 years to the agricultural water conservation grant program to be used for grants to gcds that require meters in order to offset half the costs to well owners of installing those meters. • sb 198 prohibits a homeowners’ association from prohibiting xeriscaping, though the association can require plans to be pre-approved. • sb 654 clarifies that a municipality may bring a civil action for enforcement of an ordinance relating to water conservation. • sb 662 adds representatives of the public utility commission of texas and electric reliability council of texas to the drought preparedness council. open meetings/open records • hb 2414 provides specifications for general videoconferencing meetings. • sb 293 authorizes a “water district” covering 3 or more counties to hold a meeting via telephone or videoconference if it is a special called meeting, immediate action is required, and a quorum at 1 location would be difficult to obtain. • sb 471 authorizes the use of electronic recorders for the official recording of open meetings. • sb 984 provides specifications for videoconference meetings when the government entity is statewide or covers 3 or more counties. • sb 1297 allows public officials to communicate between meetings on internet message boards maintained by the governmental body and visible to the public. • sb 983 provides for an “in camera” review of information at issue in a public information lawsuit. • sb 1368 defines public information as it relates to contracts between non-government entities and government entities. looking ahead if the number and scope of unsuccessful bills during the 83rd texas legislative session are any indication, 2015 will be a busy year for those interested in groundwater management. during the interim, stakeholders should continue the work they started on many of these issues with the goal of coming to the capitol with some consensus language for consideration during the 84th legislative session.