WhoopingCrane_Section11-147_Hess_Myron_AustinTX_8June2020_Reel4017.mp3

Myron Hess [00:00:00] So, you know, it's always useful to think about the context of water rights in Texas, like the Western states, it uses this prior appropriation system, where people get permits to take water out of the stream.

Myron Hess [00:00:17] It's oversimplifying because Texas has a long history of Spanish water law, common law, English common law, and then statutory law. But, by and large, permits are for diversion of water. And the water in our springs and rivers is owned by the state. So, you know, people of Texas own the water in the rivers. But we've created a system where people can get the perpetual authorizations to impound water and to divert and consume water from the rivers for various kinds of uses. And we've been doing that and issuing those kind of perpetual permits since the late 1800s.

Myron Hess [00:01:00] And particularly at that time, and until amazingly recently, there was very little thought given to the fact that it's important to keep water in the rivers and flowing to the bays for the health of the rivers, and for the health of the bays and all the organisms that rely on them, and all the people whose, whose livelihood relies on those organisms as well, for recreational fishing, commercial fishing, all those things that are also economically important.

Myron Hess [00:01:31] So that's sort of the base of that system. We've issued, over the years, rights to divert somewhere in the neighborhood of maybe 27 million acre feet of water, per year, out of Texas rivers and streams. And in dry years, there isn't that much water in Texas rivers and streams. And the exact balance varies from one system to another.

Myron Hess [00:02:02] But with all those, just those existing water rights that were issued, and until 1985, with just a couple of rare exceptions, those permits didn't have any kind of limits on them to maintain flow in the river or maintain freshwater inflows into the bay.

Myron Hess [00:02:25] And so what changed in 1985 with the passage of 11.147 of the Texas Water Code that directs the permitting agency (it's gone through various iterations, it's currently the Texas Commission on Environmental Quality), directs them to assess the impacts of granting new permits to divert and impound water on both instream flows, and specifically on freshwater inflows to bays and estuaries.

Myron Hess [00:03:04] And that, the passage of that bill, was, was very hard-fought. In fact, it, it got passed because of opposition by the Sierra Club, in particular, and some others to various bonds that the state of Texas was trying to pass to build water projects. And sort of the price of passing those bonds was to agree to start addressing these environmental impacts.

Myron Hess [00:03:38] So that's where that legislation came from, in section 11.147.