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Conflicts, Curtailments and Conversions: Lessons From the Historic Texas Drought

Conflicts, Curtailments and Conversions: Lessons From the Historic Texas Drought . 25 th Annual Texas Environmental Superconference August 1 , 2013 Austin, Texas. Leonard H. Dougal Jackson Walker L.L.P. ldougal@jw.com • (512) 236-2000. Introduction.

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Conflicts, Curtailments and Conversions: Lessons From the Historic Texas Drought

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  1. Conflicts, Curtailments and Conversions: Lessons From the Historic Texas Drought 25th AnnualTexas Environmental Superconference August 1, 2013 Austin, Texas Leonard H. Dougal Jackson Walker L.L.P. ldougal@jw.com • (512) 236-2000

  2. Introduction • Surface Water Curtailment in Brazos Basin • Brackish Groundwater Resource Conflicts and Development • Conversion of Agricultural Supplies to Municipal/Industrial

  3. Texas Reservoir Status – July 2013 Source: Texas Tribune/TWDB

  4. Prior Appropriation Doctrine “As between [surface water] appropriators, the first in time is the first in right.” Water Code § 11.027

  5. Brazos River Curtailment AreaThis map depicts the area of the Brazos River where junior surface waterrights have been curtailed.

  6. Surface Water Curtailment InBrazos Basin – Priority Call • No Watermaster on the Brazos River • “Priority Call” By Senior Water Rights Holder • TCEQ Suspends Water Rights Junior to Feb. 14, 1942 • But, Order Excludes Junior Muni and Power Generation Rights • ED Cites Public Health, Safety and Welfare and New Rules • Texas Farm Bureau Sues TCEQ • Challenges TCEQ “Curtailment Rules” (Ch 36) • Judge Jenkins Invalidates Curtailment Rules • Decision Now on Appeal

  7. Brackish Groundwater Resources • TWDB Estimates: 2.7 Billion Acre-Ft • Brackish = 1,000 – 10,000 TDS • Represents “New Water” if Developed • TWDB Estimates Desal Production Costs of $1.09 to $2.40 per 1000 Gallons • Less Costly than Seawater Desalination • Currently 34 Operating Brackish GW Desalination Facilities in Texas

  8. Growth of Desalination Capacity in Texas Source: TWDB (includes both surface water and groundwater desalination plants)

  9. Brackish GW Development Policy Considerations • Who Should Regulate Brackish GW? • Do GWCD’s Have the Knowledge and Resources to Regulate Brackish GW? • How Do We Encourage the Development of Brackish GW? • Need for Better Characterization of Brackish GW Aquifers (TWDB/BRACS)

  10. Conversion of Irrigation Supplies TWDB Water Demand Projections (M AcFt/yr.)

  11. Conversion of Supplies SAWS Deals • “Reverse Auction” to Purchase Edwards Aquifer Rights • SAWS Stated Goal: “To Acquire an Additional 10,900 acre-feet of Edwards Aquifer Water Rights in the Years to Come.”

  12. Conversion of SuppliesColorado Basin Example

  13. Conversion of Supplies:Hydraulic Fracturing Example • “It takes 407 million gallons to irrigate 640 acres and grow about $200,000 worth of corn.” • “That amount of water, could be used to frack enough wells to generate $2.5 billion worth of oil.” • “No water, no frack, no wealth,’ says Dr. Brownlow (who has leased his cattle ranch for oil exploration).” WSJ, Quoting Darrell Brownlow, Ph.D.

  14. Conclusions • Priority System Affirmed; Legality of TCEQ “Curtailment Rules” Questioned • Brackish Groundwater Is a Vast Resource; Policy Changes Needed to Spur Development • Irrigated Agriculture Will Decline as Water Moves to Higher Value Municipal/Industrial Uses

  15. QUESTIONS? Leonard H. DougalJackson Walker L.L.P.100 Congress Avenue, Suite 1100Austin, Texas 78701Telephone: (512) 236-2000ldougal@jw.com

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