Given that the environmental flows section of Senate Bill 3 , enacted by the Texas legislature in 2007, is one of the most advanced statewide laws of its kind in the country, its implementation is bound to raise some interesting legal issues.
In the Sabine/Neches basin, one of the first to go through the flows process, there have been some recent questions raised about the potential for existing rights to be affected by the adoption of environmental flow standards, particularly with respect to proposed inter-basin transfers from an existing reservoir, Toledo Bend, which is owned and operated by the Sabine River Authority.
In considering those questions, it is important to note the general rule that environmental flow standards, including environmental flow set asides, adopted pursuant to the Senate Bill 3 process do not affect existing water rights granted prior to the effective date of Senate Bill 3 (Sept. 1, 2007). If a new or increased appropriation is not at issue, nothing in Senate Bill 3 makes existing rights subject to additional review or new environmental flow conditions. However, there are limited situations when existing rights undergoing certain changes are subject to environmental reviews pursuant to longstanding law. Once environmental flow standards are adopted, they likely would be relevant, but non-binding, considerations for TCEQ in applying that existing authority.
Since 1997, the state water agency, now the Texas Commission on Environmental Quality (TCEQ) has had explicit authority to impose environmental flow conditions on proposed new inter-basin transfers. It seems likely that TCEQ would consider any new environmental flow standards developed under SB 3 in exercising its discretion to apply environmental flow conditions. Thus, this issue might be of interest to the Sabine/Neches Bay/Basin Stakeholder Advisory Committee (BBSAC) as it seeks to formulate its recommendations on environmental flow standards. However, any such evaluation would need to compare the consequences of applying proposed new flow standards with the consequences of applying other flow conditions, such as the consensus criteria traditionally used in state water planning. Given the statutory provisions that existed for a decade before SB 3 was enacted, the comparison should not be between potential SB 3 standards and no environmental flow conditions.
We set out our thoughts on this issue in a memo that can be found here. No doubt, this is one of many interesting implementation issues likely to arise the bay/basin stakeholder committees in both the Sabine/Neches and the Trinity/San Jacinto basins work to develop their recommendations over the next several months.