Water Rights and Flows Protection in Texas

Historically, the water needs of fish and wildlife have been ignored in water allocation in Texas. Legally, surface water—the water flowing in our rivers and streams—is owned by the people of Texas, and in our name, the state grants perpetual permits to use this water to individuals, corporations, and cities.

Texas, like most western states, operates primarily on the prior appropriation system in which the oldest water rights have the first claim on the available water. Before 1985, the state generally did not consider impacts on fish and wildlife when giving out permits. Unfortunately, over 90% of the water rights currently authorized were issued before 1985 and have no environmental conditions.

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Since 1985, the Texas Commission on Environmental Quality and its predecessor agencies have included some level of environmental flow protections on new water rights; however, the level of protection varies widely from permit to permit. These environmental conditions normally involve a restriction on when, or how much, water can be taken from a river or stream to ensure some water still flows downstream.

In 2000, the San Marcos River Foundation (SMRF) made history by applying for a new water right permit for the sole purpose of keeping water flowing in the San Marcos River and into San Antonio Bay. Several other organizations soon joined SMRF and applied for environmental flow water rights in other regions of the state. These applications generated vocal opposition from water suppliers, and the TCEQ Commissioners dismissed the applications without a hearing.

Spring Lake Falls, headwaters of the San Marcos River Photo courtesy of Charles Kruvand

Spring Lake Falls, Headwaters of the San Marcos River
Photo courtesy of Charles Kruvand

In response to those applications, the Legislature enacted a temporary moratorium prohibiting any new permits for environmental flow protection and created the Study Commission on Water for Environmental Flows, which was charged with considering alternate ways to protect environmental flows. The Study Commission issued recommendations for an approach to flow protection that was included as Article 1 of Senate Bill 3 in 2005. (To learn more, download a PDF of the Commission’s December 2004 Interim Report to the 79th Legislature.)

On the last day of the 2007 session of the Texas Legislature, a new Senate Bill 3 was adopted, establishing an environmental flows allocation process that has since been unfolding across Texas. This process will result in environmental flow standards that are intended to help ensure sufficient water flows in Texas rivers and into its bays by placing limits on new water rights permits.

However,  in a number of river basins, permits have been issued for all (and in some cases more than all) of the water that would be present in the stream during dry periods. If all water rights were fully used, those rivers and streams would go dry during a drought. Many existing water rights are not currently being fully used, but that will likely change as Texas’ population grows. In addition, many streams and rivers are dependent on return flows of treated wastewater. Today many cities and industries are beginning to reuse wastewater instead of treating it and returning to the river or stream—a trend that could have negative impacts in certain places.

The National Wildlife Federation 2004 study, Bays in Peril, found that five of the seven major bay systems in the state would face serious problems if existing water rights were fully used and wastewater reuse increased significantly. The report only looked at existing permits – it did not consider potential impacts from currently pending or future permit applications.

Get Involved

Learn how you can help at home, in your community and at the state level to keep water flowing in Texas streams and rivers and into our estuaries.

Senate Bill 3 Environmental Flows Process

Learn about Texas’ process to determine the water needed to maintain healthy rivers and estuaries and how we can protect or restore these flows.

Brazos River and Associated Bay & Estuary Area

The Brazos River basin is the third largest river in Texas; its watershed stretches from the New Mexico–Texas border west of Lubbock, to the Gulf of Mexico, south of Houston. TCEQ is currently considering what levels of environmental flow protection standards to adopt for this river system and associated estuary, with a final decision expected by March 2014.

Colorado & Lavaca Rivers/Matagorda & Lavaca Bays Area

In September 2012, TCEQ adopted environmental flow standards for the Colorado and Lavaca rivers and Matagorda and Lavaca bays.

Guadalupe, San Antonio, Mission, & Aransas Rivers/Mission, Copano, Aransas & San Antonio Bays Area

Despite receiving a majority recommendation from regional stakeholders, TCEQ adopted flow protection standards in September 2012 that were significantly weaker than those recommended by stakeholders. TCEQ will now apply these standards to any new water right permit they give out in the basin.

Nueces River/Corpus Christi & Baffin Bays Area

TCEQ is currently considering what levels of environmental flow protection standards to adopt for this river system and associated estuary, with a final decision expected by March 2014.

Rio Grande/Rio Grande Estuary & the Lower Laguna Madre Area

TCEQ is currently considering what levels of environmental flow protection standards to adopt for this river system and associated estuary, with a final decision expected by March 2014.

Sabine & Neches Rivers/Sabine Lake Bay Area

TCEQ adopted environmental flow standards for the Sabine and Neches river systems and Sabine Lake that are not adequate to protect a sound ecological environment. TCEQ should be considering revised standards in the near future.

Trinity & San Jacinto Rivers/Galveston Bay Area

TCEQ adopted environmental flow standards for the Trinity and San Jacinto river systems and Galveston Bay that are not adequate to protect a sound ecological environment. TCEQ should be considering revised standards in the near future.

Strategies to Keep Rivers Flowing and Bays Healthy

Threats to Environmental Flows

Projections indicate that many of the state’s estuaries could end up deprived of adequate freshwater on a frequent basis, particularly in drier years, if we do not take aggressive action to implement sufficient environmental flow protections.

Useful Links and Resources

Useful links to additional information on protecting water in rivers and flowing into bays.

What Are Environmental Flows?

Environmental Flows are the quantity, quality and timing of water that are necessary to sustain a river, wetland or coastal zone and associated fish and wildlife.