Western States Water Council 2001 Report

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the state should do some sort of environmental analysis and condition the exercise of the new rights. TCEQ also had to consider applications for the non - consumptive instream use of some 13.5 million acre -feet of water filed by environmental interests concerned with water quality and Texas' estuaries and bays. The Commission denied the applications based on its lack of jurisdiction and a legislative mandate that water may only be appropriated as expressly authorized by law. Subsequent legislation created an Environmental Flows Commission, but its recommendations had yet to be acted upon by the Texas State Legislature. She also reviewed the legal history related to ground water management and the Edwards Aquifer, which is under the control of a local authority that can limit water withdrawals (to maintain water levels sufficient to protect springflows and related endangered species). Tom Graff and Mary Kelly, Environmental Defense Fund (EDF), next addressed members on the use of markets and water transfers as a means to provide for environmental water needs, even where streams are now fully appropriated, as well as to avoid unnecessary development of new supplies (reservoirs and well fields), while moving toward a more sensible valuation and use of limited water supplies. Markets allow for the voluntary transfer of existing water rights to meet shifting demands through sales, leases and dry -year options — primarily from agricultural to municipal and environmental uses. There are constraints. In some cases, there is a lack of an adequate legal framework to encourage transfers, as well as a lack of flexibility in some river basins. They specifically referred to the seven -state Colorado River Basin. There are also third -party impacts and impacts on rural communities. There is also the question of who pays for water for environmental purposes. They called for setting environmental flow "targets," and using public investments in water conservation to acquire the needed water, while recognizing there are additional challenges in trying to manage large -scale transfers and acquire freshwater flows necessary to maintain the health of bays and estuaries. Afterwards, Robin Smith, TCEQ counsel, reported on a meeting of the Western Adjudication Conference, and Susan Cottingham reported on the annual WSWC/Native American Rights Fund (NARF) Symposium on Indian Water Rights Settlements held last month in Moscow, Idaho.' Sharonne O'Shea, Washington State Assistant Attorney General, then reported on the Federal District Court in Seattle's decision recognizing the rights of the Lummi Indian Nation to ground water on the reservation, which includes an island and peninsula near the Canadian border in northwest Washington. Surface water is limited and not suitable for many uses. The court recognized agricultural and domestic uses as the "primary purposes" for establishment of the reservation, rejecting the tribe's "permanent tribal homeland" claims.' The court determined that the practicable irrigable acreage standard was not helpful in quantifying domestic needs. The court rejected a Lummi argument that water was not appertinent to Indian lands purchased by non - Indians, but remained the property of the tribe. Washington does not regulate domestic wells, and significant domestic non - Indian uses within the reservation rely on ground water. On Friday, during the full Council meeting, each of the proposed positions and renewed sunsetting positions were presented during Committee reports and adopted with some modifications. Robert Puente, a Texas State Representative, Todd Chenoweth, TCEQ, and Weir Labatt, Texas Water Development Board, all addressed the Council on water resources issues in Texas. While "water is life," Rep. Puente observed, it seems political change comes only when there is a drought and a budget surplus! Texas faced huge infrastructure needs, but this year it was raining and there was a $2 -$3B budget deficit. Careful planning, water conservation and water reuse are key issues. 'Western States Water Speical Report, Issue #1636, September 23, 2005. 'Western States Water, Issue #1620, June 3, 2005. 24