In Central Texas, Water War Shows No Signs of Drying Up

Photo by Jeff Heimsath/StateImpact Texas

The drought has affected Texans across the state. Haskell Simon, a rice farmer in Bay City, could go without water a third year in a row.

Update:  State administrative law judges recommended today a higher trigger point for cutting off water from the Highland Lakes for rice farmers this year, saying “emergency conditions exist which present an imminent threat to the public health and safety.” If adopted, these recommendations would mean there is almost no chance of most rice farmers downstream on the Lower Colorado of getting water for irrigation. This would be the third year in a row of water cutoffs for the rice farmers. Under the proposed cutoff, unless the lakes are nearly 70 percent full, water will not be sent downstream for most farmers. The lakes are currently 38 percent full.

Original Story, Feb. 13: There’s less and less water in the Highland Lakes of Central Texas these days, and the fight over who gets what’s left has laid bare the ugly politics of drought. With each passing day, it seems the comity and compassion between groups competing for the water drops in step with the falling lake levels. Now those interests will need to wait longer before regulators make a decision on giving water to farmers this year.

At a meeting Wednesday of the Texas Commission on Environmental Quality (TCEQ), upstream and downstream interests sparred for hours over a proposal to approve a third year of water curtailments for rice farmers along the Lower Colorado River. There was a clear cultural and geographic line between them: Those upstream, including Austin, want a higher trigger point this year than the one proposed to protect the drinking water of a million people. Below Austin, where rice farmers have relied on water stored in the lakes to irrigate their fields, an industry is warning that if the cutoffs continue, their livelihood will be lost.

This is the third year that the Lower Colorado River Authority (LCRA) has put together an emergency drought plan that cuts off water from the lakes for most rice farmers. And this year they’ve set the trigger point even higher than the past two years. If the Highland Lakes don’t have a combined 1.1 million acre-feet of water in them by midnight March 1, most rice farmers won’t get water this year. Currently, the lakes are 38 percent full, with 762,000 acre-feet of water. Absent a major storm, it’s unlikely there will be enough water in them to avoid a cutoff.

While the LCRA measure suggests the trigger point be set at 1.1 million acre feet, many said they wanted it raised to 1.4 million acre feet or higher. Those downstream would like to see it at 850,000 acre-feet, and believe that this is not a matter of imminent danger to “public health and safety,” as required by the 2010 Texas Water plan.

In order to enact the emergency plan, the LCRA must get the permission of the state’s environmental commission, the Texas Commission on Environmental Quality (TCEQ). After hours of public comments Wednesday, TCEQ chairman Bryan W. Shaw and his commissioners decided it was best to hold off on a decision until a legal hearing is held. The commission’s staff had already recommended to Shaw and the other commissioners that the emergency plan be passed, and the commission’s executive director had already passed it.

But in an unexpected move, the commissioners of the TCEQ decided to pass the buck instead, sending the matter to a judge for a week to see what he would recommend. That was done because of a request from some rice farmers for a contested hearing of the emergency plan.

Shaw cited concerns over what evidence could be legally admissible in making a decision on the measure, who is considered affected parties in the debate, and what the TCEQ’s options are in handling the measure. He requested that a State Office of Administrative Hearings judge, William Newchurch, consider the arguments for and against, and then make a recommendation to the commissioners.

A recommendation from the judge to approve a third year of agricultural cutoffs could provide some political cover to the commission as it makes a decision that will inevitably upset one side or the other.

The past two years the LCRA has asked for approval for its emergency plan and the state passed it without this level of scrutiny. This year is different because the trigger point has been set higher, all but ensuring a cutoff of the rice farmers. The farmers say they aren’t sure that crop insurance will cover another year of losses, and the ancillary businesses that rely on them have no such lifeline. The LCRA board voted 8-7 in November for an emergency plan with a higher trigger point. Downstream interests argued that such a slim margin shouldn’t be encouraged.

“That, gentlemen, is un-American,” Matagorda County judge Nate McDonald said in opposition to the higher trigger point. “It’s not the way Texans do business, and I hope that you all will not hear of that and not allow that to occur here.”

Low lake levels have already caused one community along the Highland Lakes to run out of water. The 1,100 people in Spicewood Beach, along Lake Travis, have several large tanker trucks roaring through their quiet community every day to bring in water that keeps the taps flowing. The community hasn’t been able to rely on the lake for their water supply for over two years.

But there’s always room for rhetoric to shout over reality. On the upstream side, that meant questioning the motives of the rice farmers and the mission of the lakes themselves.

“We cannot tolerate or support an industry who draws a tremendous amount of drinking water out of lakes that were never designed to support an agriculture industry,” one commenter representing property owners on Lake Buchanan said.

On the downstream side, that meant lumping in lake recreation with preserving a supply of drinking water.

Timothy Gertson, a fifth generation rice farmer, told the commission that he can’t understand “why it would be more important to back a jetski in the water, or restore the view of a lakeside home, than it is to grow food for more than 800,000 people for a year.”

The purpose of the lakes themselves was debated. Ken Milam, a fishing guide on Lake Buchanan, told the commission he’s going bankrupt because of low lake levels. He argued that the water in the Highland Lakes wasn’t intended for rice farmers.

“I don’t think it was ever told that it was going to be sent downstream to kill weeds and grass in rice fields,” Milam said. “I don’t think it was ever told that. If it was – I know my brethren! I know my kinfolk! There would have been hell to pay.”

Fayette County Judge Ed Janecka said the opposite. “Those dams were here very specifically for agricultural purposes downriver. To protect all of us from flooding, and for electricity,” Janecka said. “They weren’t there to be watering St. Augustine lawns! Or for the enormous amount of golf courses that we have.” (The water rights of the rice farmers along the Lower Colorado were purchased by the LCRA starting in 1960, well after the construction of the Highland Lakes in 1939-1941.)

Caught in the middle is the LCRA, which has struggled to balance water needs during these dry years. In 2011, the driest year in Texas’ recorded history, the LCRA followed its existing water plan and sent massive amounts of water from the Highland Lakes to rice farmers downstream. The lakes haven’t recovered since.

To prevent big releases to farmers from happening again before the lakes recover, the agency has had to put together an emergency plan every year since, while waiting for a new longer-term plan (one that keeps more water in the lakes) to be approved.

But even the emergency drought plans are putting the region’s water supplies at risk, according to testimony from one of LCRA’s own attorneys before the commission. If there had been just enough water above last year’s cutoff trigger point to send water downstream, LCRA attorney Lyn Clancy testified, “we would have reached drought [conditions] worse than the drought of record” last year. Even though no irrigation water was sent downstream last year, the lakes dropped significantly, Clancy said.

The LCRA emphasizes that inflows into the lakes are at record lows, so all interests need to be ready to sacrifice. Planning for a new downstream reservoir that will catch heavy rains and store them for use by the rice farmers is under way. But it has a high price tag, over $200 million, and won’t be ready for at least another three years.

Judge Newchurch will hold a hearing on Monday at the TCEQ, and the commissioners are expected to take up his recommendations and the emergency drought proposal again on Feb. 26, just days before the cutoff. That meeting will be open to the public.

If the plan isn’t approved, there’s a big chance that the Highland Lakes will reach dangerous lows, the LCRA says. Under the existing water plan (from 2010, before the record drought of 2011), the trigger point for cutting off irrigation downstream is 600,000 acre-feet, meaning the lakes would only have to be 30 percent full to send water to rice farmers. If that happens, the LCRA warned, by August the lakes could reach historic lows. “If we follow the 2010 plan,” Clancy told the commission Wednesday, “it doubles the risk” of reaching lake levels this summer worse than the drought of record in the 1950s.

If the plan is approved, absent a massive downpour before March 1st, most rice farmers will be cut off from water for a third year in a row. But you can expect the water wars over the lakes to continue until real relief comes in the form of raindrops.