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 Billl 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 the Texas Commission on Environmental Quality set environmental flow standards. Over 12 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 unallocated water in the state’s river basins and limitations in Senate Bill 3 and Texas Water Code. We identified seven options for the stakeholders and the state to consider to increase the protection of environmental flows while respecting private property rights: (1) protecting water-right owners that participate in forbearance agreements from 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 rights holders to demonstrate the pursuit of other water supplies before suspending environmental flows, (6) studying ways how environmental flows can co-exist 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 so as to further incentivize transactions for environmental benefit. If implemented, these options could allow Texas and Texans to more closely achieve the desired outcomes hoped for from Senate Bill 3.