USE OF SURFACE WATER IN TEXAS, 2000 Total Use: 6.83 million acre-feet Source: Texas Water Development Board, "Summary Historical Water Use, 2000," 2003.

Regulation of Surface Water Rights

In 1967, following a historic drought, the Texas legislature passed a law known as the "Water Rights Adjudication Act." This act consolidated all surface water rights into a unified system by transforming previously held Spanish and Mexican grants, riparian water rights, and claims into "certificates of adjudication." The act required all riparian and unrecorded users of water to file claims with the Texas Water Commission (now the Texas Commission on Environmental Quality, or TCEQ) to be based upon actual use during the years 1963-1967.

The then-Water Commission then evaluated all water right claims, including any claim filed prior to the act. Approval of any water right by the commission also required court approval. All rights approved by the courts are called "Certificates of Adjudication." After 1969, anyone wishing to obtain a new water right must seek a permit from the state. Today, only water claims in the upper Rio Grande near El Paso remain unadjudicated in an ongoing,  complex legal battle over whether the state, federal government, or irrigation districts to Rio Grande water coming from federal dams in New Mexico.^*

Thus, today, surface water rights are issued to irrigators, cities, industries, power plants and individuals with the following terms and conditions:

1. a maximum amount of water (in acre-feet) that may be used each year,
2. a maximum diversion rate,
3. a diversion point(s),
4. a purpose of use (e.g., municipal, irrigation, mining),
5. a place of use, and
6. other additional restrictions, including:
1. streamflow restrictions in some cases to protect:
• existing water rights holders,
• water quality,
• aquatic fish and wildlife habitat,
• inflows for bays and estuaries,
• recreational uses,
2. habitat mitigation measures, and
3. water conservation measures.

To change any of the terms or conditions --including transfers or leases -- of the right requires authorization from the TCEQ. In its administration of water rights, the TCEQ, by law, must balance requests for new rights or for amendments against statutory responsibilities to also protect water quality, in-stream uses, and freshwater inflows to bays and estuaries.

ACTIVE SURFACE WATER RIGHT HOLDER USES IN TEXAS AS OF AUGUST, 2002 TYPE TOTAL # SIZE* MORE THAN 10,000 ACRE-FEET Largest Individual Water Rights Holder SIZE* Municipal 803 12.54 28 LCRA 7.81 Industrial 434 17.15 125 Dow Chemical Co. 16.70 Irrigation 5,743 5.40 62 El Paso Co. WID No. 1 3.99 Mining, Oil & Gas 159 0.18 2 U.S Dept. of Energy 0.08 Hydroelectric 15 11.23 15 LCRA 11.23 Other 201 0.41 5 Texas Water Develop. Bd. (for proposed Dam) 0.27 Total 7,355 46.9 235    40.09 The total number of water right holders includes contractual permits and agreements. In many cases, one water right holder -- such as the City of Dallas -- owns multiple uses for municipal, industrial and hydroelectric power. This is counted as three separate water right uses even though it is only one holder. The 46.90 total million acre-feet of authorized use includes impoundments and authorized but unbuilt reservoirs, contractual permits and agreements, as well as non-consumptive uses, which total approximately 20 million acre-feet. The industrial uses includes cooling uses of which some is brackish waters of the estuaries. *Million of acre-feet Source: Texas Commission on Environmental Quality, Water Rights Database

As of August of 2002, excluding contractual permits and agreements between water rights holders, there were some 6,230 active water rights for both consumptive and non-consumptive rights of water.^* However, a small number of these water rights-some 235 water right holders with more than 10,000 acre-feet in their water right --have access to most of the water.^* Irrigation rights make up the greatest percentage of the number of rights, but most of these irrigation rights are for 100 acre-feet or less.^* Large irrigators in Texas rely principally on groundwater.

Surface water rights can be sold, amended, leased, or transferred. In Texas, over 90 percent of surface water has already been adjudicated, and some rivers, like the Rio Grande, are actually overappropriated. This means that if all holders used all their water rights-particularly during dry periods-there would be no flow in the river.^*

To encourage conservation, the Commission in April 1993 modified its rules to allow water rights holders to retain for future use the rights to water conserved through water use efficiency. Prior to this rule change, permit holders were in a "use it or lose it" position, which discouraged conservation.^*

Direct and Indirect Reuse of Water Rights

RIVERS WITH LITTLE OR NO WATER AVAILABLE FOR APPROPRIATION Source: Texas Natural Resource Conservation Commission, State of Texas Water Quality Inventory, 12th edition (TNRCC, 1995) 82

The passage of Senate Bill 1, the state water plan, which took effect on September 1, 1997, reconfirmed that existing water rights holders who take water out of a reservoir or stream can use and reuse up to 100 percent of the water prior to its discharge to the stream, providing there is no return-flow requirement in the permitted water right itself.^* For example, a municipality can reuse wastewater for a variety of domestic and municipal uses-irrigation of golf courses and parks-without needing an additional water rights permit. This type of reuse is known as direct reuse.

Once water is used and is discharged to a streambed, however, it becomes property of the state. Any water rights holders who wish to divert their water for reuse after it has been discharged must obtain authorization from the TCEQ through a "bed and banks" permit. Under SB 1, this type of indirect reuse might require that some surplus water be returned to the river or stream to protect senior downstream water users and environmental needs. In addition, SB 1 allows the TCEQ to condition new or amended water rights to provide for return flows, potentially limiting the direct reuse of wastewater as well.^*

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