Comments on State and Regional Water Planning

Texas 2036 submitted the following comments on the Texas Water Development Board’s proposed amendments to 31 Texas Administrative Code chapters 357 and 358 relating to regional and state water planning respectively.

Thank you for the opportunity to comment on the Texas Water Development Board’s (TWDB) proposed amendments to 31 Texas Administrative Code (TAC) chapters 357 and 358 relating to regional water planning and state water planning respectively.  These proposed amendments were published in the December 31, 2021 volume of the Texas Register.  Broadly, Texas 2036 believes that state water policy needs to offer greater opportunity for the inclusion of water markets.  Further, Texas’ state and regional water planning process require certain climate data, especially those relating to extreme weather trends and forecasts, to calibrate state and regional plans appropriately to meet future water needs.  Texas 2036 offers these comments to encourage TWDB’s consideration of these and other changes to the proposed amendments to 31 TAC chapters 357 and 358.

1.     Expand 31 TAC 357 and 358 to include broader contemplation of water markets.  Water markets have been widely discussed, but intermittently implemented across Texas.  Currently, water markets are working in a few regions, including the Edwards Aquifer and other groundwater areas.  Water markets offer an opportunity to assign a value to water, contributing to more efficient use, including other beneficial uses, and lower long-term consumption.  Texas’ water policy, as reflected within 31 TAC chapters 357 and 358, needs to be changed to encourage market development.  While the aforementioned chapters include limited, sometimes oblique, references to water markets, both should be amended to explicitly contemplate their use, especially within the context of state and regional water planning.  Amending these chapters to include clear, specific references to water markets would send an instructive signal to water practitioners that water markets could functions as an effective water supply strategy.  Towards that end, the following four amendments are recommended for 31 TAC chapters 357 and 358.

A.     Amend §357.10 relating to Definitions and Acronyms to include a definition of “water market.”  Adding a definition of the term “water market” is a logical predicate to amending subsequent sections of TAC to include references to this water supply strategy.  The section should be amended to include a new subsection to read as follows:

(__).  Water Market.  Any formal or informal exchange, excluding wholesale and retail water transactions, where water rights, and all or a portion of the volumes associated with those rights, are sold, purchased, or leased for the purposes of conveyance or transfer, supply, or changing the legal purpose of use.

B.     Expand §357.22 relating to general considerations for development of regional water plans to include the consideration of established water markets.  Subsection (a) lists 15 inputs that regional water planning groups (RWPGs) shall consider when developing regional water plans (RWPs).  This subsection should be amended to instruct that RWPGs consider information relating to water markets’ operations and impacts within their respective areas.  Adding the following suggested subitem to subsection (a) would accomplish this objective:

(___).  Information on the effects of water markets functioning within the planning region.

C.     Amend §357.34 relating to the identification and evaluation of potentially feasible water management strategies and water management strategy projects to include explicit references to water markets.  Water markets can work as a discrete water management strategy.  As written, §357.34 does not clearly contemplate the use of water markets as a potentially feasible water supply strategy.  Two amendments to §357.34 would provide the necessary clarity.  First, amend §357.34(c)(1) to distinguish water markets from water marketing:

(1) Expanded use of existing supplies including system optimization and conjunctive use of water resources, reallocation of reservoir storage to new uses, voluntary redistribution of water resources including contracts, water markets[ing], regional water banks, sales, leases, options, subordination agreements, and financing agreements, subordination of existing water rights through voluntary agreements, enhancements of yields of existing sources, and improvement of water quality including control of naturally occurring chlorides.

Second, amend §357.34(e) to require that RWPGs’ evaluations of potentially feasible water management strategies include an analysis of the effects of water markets within the region.  Here, a new sub-item should be added to subsection (e) to read as follows:

(___).  A description of functioning water markets within the region, and their effects on water supply consumption and conservation, assignation of water value, and reallocation of water resources towards other beneficial uses, such as domestic and industrial consumption, and instream and environmental flows.

D.     Amend §358.3 relating to guidance principles for the state water plan to include the consideration of water markets.  Here, §358.3(10) should be amended to read as follows:

(10) Consideration of opportunities that encourage and result in voluntary transfers of water resources, including but not limited to water markets, regional water banks, sales, leases, options, subordination agreements, and financing agreements.

2.     Amend the definition of “Firm Yield” to include evaporative losses.  In September 2021, Texas 2036 and the Office of the State Climatologist at Texas A&M University released the report, Assessment of Historic and Future Trends of Extreme Weather in Texas, 1900-2036.  The report observes that by year 2036 the average state temperature is expected to be 3.0 degrees Fahrenheit warmer than the 1950-1999 average.  In addition, the average number of 100-degree days are expected to double between now and 2036.  The report concludes that the continuation of this warming trend “would lead to a roughly 4% increase in the expected summertime evaporative losses from reservoirs in 2039 compared to 2000-2018.”  Given these findings, the definition of “Firm Yield” in 31 TAC §357.10(14) should be amended to include evaporative losses:

(14) Firm Yield–Maximum water volume a reservoir can provide each year under a repeat of the Drought of Record using anticipated sedimentation rates, anticipated evaporation losses, and assuming that all senior water rights will be totally utilized and all applicable permit conditions met.

Both sedimentation and evaporation affect a reservoir’s firm yield.  This change updates the definition to reflect these influences.  Moreover, this change ensures that Firm Yield data used to inform regional water supply analysis includes evaporative losses.  The fact that the proposed rule change to §357.32(c)(1) includes the reference to the definition of Firm Yield in §357.10 makes this change all the more necessary.

3.     Require that regional water planning groups consider extreme weather data and trends provided by the Office of the Texas State Climatologist.  Texas 2036 has published two reports in partnership with the Office of the Texas State Climatologist assessing historic and future extreme weather trends in Texas.  These reports indicate that Texas is expected to endure more rainfall variability, greater drought intensity, and increased temperatures that will materially affect surface water availability.  These data should be considered by regional water planning groups when developing regional water plans.  Towards that end, §357.22, relating to general considerations for the development of regional water plans, should be amended to include the following subitem:

(___)  extreme weather data and trends made available by the Office of the State Climatologists at Texas A&M University.

4.     Lengthen proposed time for publication of regional water plan major amendments.  As drafted, the proposed amendments to 31 TAC §357.51(b)(2) shorten the window that TWDB shall make major regional water plan amendments available to the public from 30 to seven days “as required by Section 357.21(g)(3).”  Section 357.21(g)(3) requires, however, that notice of major RWP amendments must be provided, and written comments received, 30 days prior to the hearing.  It is hard to reconcile how a member of the public can submit written comment on a major amendment 30 days before the hearing if the amendment draft is only made available seven days before that event.  If comments are allowed for 30 days before the hearing for a major amendment, then the amendment publication window should be kept at 30 days and not shortened to seven.  Further, the substantive nature of a major RWP amendment justifies the need for a 30-day publication and comment window.  Towards that end, the 30-day window in §357.51(b)(2) should be kept intact to ensure that the major amendment publication window corresponds with the public comment window described in §357.21(g)(3).

5.     Authorizing RWPGs to plan for drought conditions worse than the drought of record is excellent policy.  As proposed, the amendments to 31 TAC §358.3 authorize RWPGs to use a drought other than the Drought of Record for planning purposes.  Texas’ paleoclimatic record indicates that the state has endured droughts worse than the Drought of Record of the 1950’s.  The article, “Extended Chronology of Drought in South Central, Southeastern, and West Texas” by Michael Cleaveland, Todd Votteler, Daniel Stahle, Richard Casteel, and Jay Banner, published in the December 2011 volume of the Texas Water Journal documents this history. This proposed change to §358.3 allows RWPGs to consider drought conditions worse than the standard Drought of Record metric for water supply planning purposes.  Given the potential for greater drought intensity discussed within Texas 2036’s extreme weather reports, this change is commendable.

Thank you for your time and consideration of these comments.  Please feel free to contact me directly should you have any questions, concerns, or wish to discuss further.

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