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Below is the HillCo client report from the April 9 TCEQ Commissioners Meeting.
 
The Texas Commission on Environmental Quality (TCEQ) held a commissioners’ meeting to discuss pending business.
 
The following report focuses only on discussion regarding the appointment of a watermaster to the Brazos River Basin.

Testimony
 
Rep. Charles Perry, Lubbock

  • The proposal at hand is a solution in search of a problem
  • Legislative action in the 83rd session defeated this same proposal
  • The uncertainty of how a watermaster could affect stakeholders is reason alone why one should not be implemented on top of the upper basin
  • 9% of the water volume is in the upper basin and it doesn’t make sense to have a watermaster regulate only 9% of the water
  • It is time for the lower basin to stop looking to the state to solve their water problems
  • The current system is not broken but a consistent effort to pursue and take water from the upper basin, the current system may need to be reevaluated by the legislature
  • DOW Chemical is not the only player in this issue; others need to be considered

 
Rep. Dennis Bonnen, Angleton

  • There are citizens, rice farmers, etc. who count on water from the Brazos River, not just DOW Chemical
  • Here with the support of Reps. Ed Thompson, John Zerwas, Rick Miller, Allan Ritter, Greg Bonnen, Sens. Joan Huffman, and Larry Taylor
  • Users along the Brazos River have not been receiving their water
  • The primary contention in this case is whether to assign a watermaster for the Brazos River Basin, the second contention is whether this watermaster can assist water rights holders along the entire river basin
  • Supports assigning a watermaster for the entire river basin
  • Assigning a watermaster will provide certainty in administrative decisions for the entire basin
  • During the 83rd session, funds were appropriated by the legislature in case a watermaster were to be assigned

 
Rep. Craig Eiland, Galveston

  • Galveston Island relies on the Brazos River for its existence; there needs to be a watermaster for the entire basin

 
Brigitt Hartin, Office of Rep. Greg Bonnen, Friendswood

  • In full support of the creation of a Brazos River Basin watermaster
  • Implementation of a watermaster will allow for data collection and tracking of important water supply information

 
Emily Kirchner, Office of Rep. Ed Thompson, Pearland

  • In full support of a Brazos River watermaster
  • The need for a watermaster is exacerbated by the current drought conditions

 
 
Hunter Burkhalter, Administrative Law Judge (ALJ)

  • There were 4 major issues in the case
  • The first is a jurisdictional question; the water code provides that if 25 or more water rights holders request a watermaster, the commission has jurisdiction and must hold a hearing; initially there were more than 25 petitioners, that number dropped below 25 and now the ALJ has determined that TCEQ, having obtained jurisdiction, did not lose it due to the petitioners withdrawing
  • The other three issues are interrelated: whether water rights in the basin are threatened, whether there is a need for a watermaster, and if the commission creates a watermaster what should be its geographic scope
  • The evidence clearly shows there is a threat to water rights, there is an increasing trend in priority calls being made
  • There is substantial evidence that there is little that can be done on a day to day basis to enforce the priority doctrine
  • There is a justified need for a watermaster who can much more quickly and ably deal with water shortages, do a better job of anticipating shortages and need before a crisis; watermaster would have access to more and better data
  • The cost of a watermaster on a per acre-ft basis would be negligibly low
  • There would be an imbalance if a watermaster were appointed only for the lower basin

 
Joe Freeland, NRG Texas Power

  • Petitioners are located throughout the entire basin
  • Senior water rights are threatened and there is a need for a watermaster

 
David Tuckfield, Bell County Water Control & Improvement District #1

  • Because the watermaster may be assigned today, by statute, the commission must have 25 petitioners today; many petitioners withdrew their support and many noted they never signed the petition in the first place
  • There have been enough irregularities in the case that the commission should remand the case

 
Gwenn Webb, Representing protestants

  • The watermaster cannot provide any service not already in place in the current system

 
Jason Hill, Upper Brazos Coalition

  • There is no need for a watermaster in the upper basin to manage flows that do not exist 95% of the time

 
Susan Maxwell, Brazos River Authority

  • If a watermaster is implemented on the Brazos River, it should include the entire river

 
Robin Smith, Environmental Law Division, TCEQ

  • Executive director agrees that a watermaster should be appointed, but only from Possum Kingdom down, or for the lower portion of the basin
  • Commissioner Toby Baker asked how many water rights exist above and below Possum Kingdom
    • Kelly Ryla, Water Availability Division, TCEQ responded; there are a relatively small amount of water rights above Possum Kingdom, if a watermaster was created for the entire basin, one deputy would be assigned in the upper basin

 
Blas Coy, Public Interest Counsel, TCEQ

  • A threat exists to senior water rights holders in the basin
  • Watermaster should have jurisdiction over the entire basin

 
Molly Cagle, Gulf Coast Water Authority

  • The watermaster will add critical tools that are not in TCEQ staff tool boxes
  • It is impossible for TCEQ staff to consider all the aspects that need to be considered before releasing water downstream
  • Supports entering the order as the ALJs suggested

Discussion 

  • Chairman Bryan Shaw asked staff if the benefit of having a watermaster relies on including Possum Kingdom
    • Ryla replied that is not very practicable because Possum Kingdom is part of the Brazos River Authority’s system operation and is their most senior reservoir; taking that chunk out would not work
  • Shaw asked if having a watermaster would help to control the flows into Possum Kingdom
    • Kathy Alexander, Water Availability Division, TCEQ responded; the flows in that area are very low; implementing a watermaster would not appreciably change the flows into Possum Kingdom
  • Shaw noted that it must be determined that a watermaster will sufficiently increase the services provided over the current system to justify implementing a watermaster
    • Burkhalter reiterated that there are additional tools available to a watermaster that are not available to TCEQ staff
  • Baker asked if a watermaster is appointed today, can that ever be undone
    • Smith doesn’t see any reason why not; it is implied authority that a watermaster could be taken away
  • Shaw asked if staff believes the commission has the authority not to take action if it is concluded there is threat and need
    • Smith noted a petition requires the commission to hold a hearing but also says the commission “may” act
    • Ryla answered Shaw’s previous question; there are 212 water rights holders above Possum Kingdom
  • Shaw asked Coy about the equity of charging BRA for the watermaster when the flows affecting BRA at Possum Kingdom would not be within the realm of the watermaster
    • Baker was persuaded by the findings of the ALJ for the question of fairness; because such a critical resource is being discussed at such a critical time, he would err on the side of caution
  • Baker asked how long it would take to setup a watermaster
    • TCEQ staff responded; between 12-18 months including an extensive outreach project, establishing watermaster advisory committee, etc.
  • Susan Maxwell with Brazos River Authority commented that BRA has a few subordination agreements with upper water rights holders; the amount subordinated is a small portion of the overall Possum Kingdom water right; if the Possum Kingdom water right is to be charged for the full portion of watermaster administration it would not be equitable unless the watermaster is above Possum Kingdom; BRA will not receive the full protection other water right holders in the lower basin would enjoy for their share of the watermaster
  • Shaw asked if the watermaster program would have any impact on inflows into the Possum Kingdom system
    • Including the entire upper basin it definitely would make a difference; the state is not always in a drought and when there is no drought it will make a difference to the inflows for Possum Kingdom; the watermaster should include the whole system so that Possum Kingdom gets that benefit as well
  • Shaw noted that after considering the record, it is his belief that the commission should appoint a watermaster; the interest would be served by including the entire river segment although he understands that the benefit to the upper basin may be very small but the costs are not substantial
  • Baker noted that although he doesn’t necessarily like it, the need aspect has been answered in the record; knowing that the Executive Director can come back at any time and revisit the situation, he is comfortable leaving the upper basin out for now
  • Shaw moved that the commission appoint a watermaster with jurisdiction over the lower basin only, being that there is no need to appoint a watermaster to the upper basin to protect senior water rights
  • Motion adopted

Download the Final Order issued by the Commission.