Water disputes along Brazos River stir emotions
EDITOR’S NOTE: The Denton Record-Chronicle staff and graduate students from the University of North Texas School of Journalism under the direction of professor George Getschow worked more than a year interviewing people across Texas and researching the issue of how people are using water, the state of this necessary resource and how some are searching for solutions. The series launches an ongoing effort to keep readers informed about how the drought is affecting daily lives across the state and how some are seeking alternative measures to solve a growing issue as the drought continues and the state attracts more residents. Look for the “Water Woes” logo throughout the next week and coming weeks and months. And, if you have any suggestions, ideas or stories of your own to share, please visit our special projects page on Facebook or send an email to firstname.lastname@example.org.
— Dawn Cobb, managing editor
“But if you are built like me, neither the certainty of change nor the need for it, nor any wry philosophy will keep you from feeling a certain enraged awe when you hear that a river you have known always, and that all men of that place have always known back into the red dawn of men, will shortly not exist. A piece of the river, my piece anyway … .”
— John Graves, Goodbye to a River: A Narrative
In 1957, John Graves decided to take a canoe trip down the upper midsection of the Brazos River before a series of dams would turn his favorite stretch of river into a string of lakes. Graves was from river country, and feared that his beloved river would be squeezed dry if five proposed flood-control dams were built in the Upper Brazos.
Starting at Possum Kingdom Lake, the location of the first constructed dam, Graves canoed about 175 miles along the banks of the Brazos to bid farewell to the river that had held him in awe in his youth, and still retained that “specialness of known good places” after he had moved away from it. His emotional journey, which he chronicled in what is now an American classic, Goodbye to a River, evokes his “enraged awe” over the river that would “shortly not exist” as he had known it.
Today, three dams — Possum Kingdom Lake, Lake Whitney and Lake Granbury — control the upper reaches of the Brazos, the same stretch of river where Graves paddled his canoe and predicted the dams would transform the river into “bead strings of placid reservoirs behind concrete walls.”
Goodbye to a River is, if anything, an elegy to Texas’ wild and mighty river before it was lost to modernity, to man’s attempts to tame it and control it. Yet it’s also prophetic. Today, the river is in a death grip, facing what climatologists fear may become the worst drought in Texas history, even drier than the “Big Dry Up” between 1950 to 1957 that siphoned large swaths of the Brazos and scorched its fertile, 42,000-square-mile basin, about the size of Tennessee.
Across the state, the drought is expanding and intensifying. The state’s water development board says two thirds of Texas is now grappling with severe to moderate drought, and statewide reservoir storage is the lowest it’s been since 1990. Lake Arrowhead, for example, a reservoir on the Little Wichita River serving Wichita Falls, is just 25 percent full. Rainfall has been so rare in the region over the last two years that the city, in desperation, is spending more than $600,000 on a questionable rainmaking technique called “cloud seeding” — shooting silver iodide into infertile storm clouds overhead, hoping to induce rain.
In the Upper Brazos, the reservoirs are in better shape. But the state water board says a sharp decline in groundwater supplies is putting even greater pressure on the river to meet growing demand. In parts of the Upper Brazos, the river has been reduced to a trickle, or has stopped flowing altogether, turning it into muddy pools of water. And the reservoirs it feeds — Possum Kingdom Lake, Lake Whitney and Lake Granbury — are steadily evaporating (more than 30 percent in the last two years), forcing state water regulators to develop “drought contingency plans” that would require more stringent curtailments downstream if water levels continue to drop.
Yet even as climatologists are forecasting that the flow of water in the Brazos will continue to diminish in coming decades, the state wants to dam up more of the river and its tributaries to create nine more reservoirs (on top of the current 23) to supply water for some 5.4 million people expected to be living in the Brazos Basin in 2060, up from 2.4 million today, and for a stampede of commercial and industrial giants moving to the region.
A state advisory group, the Brazos River Basin and Bay Expert Science Team, reported last year that building additional reservoirs on the Brazos could irreparably harm the health of the river and its surrounding habitat during periods of drought.
“In North America,” the scientists said, “most rivers have been impacted by the construction of dams and levees that modify natural flow regimes crucial for fish reproduction and disconnect productive off-channel habitats for the active river channel.”
In the Upper Brazos, the flow of water over the last few years has been so low that wildlife officials were left with no choice if they wanted to save a once-abundant fish native to the river from extinction: launch a large-scale evacuation of smalleye and sharpnose shiners from the river — a species that exists nowhere else in the world.
The rescue operation took place in the summer of 2011, when thousands of the shiners were suffocating in stagnant pools of water. State wildlife officials and volunteers rushed to the river to rescue the fish with large nets and relocate them to the state’s fish hatchery near Possum Kingdom Lake. Wildlife officials fear that if the drought continues, the entire species could be wiped out, a harbinger of trouble ahead for millions of people dependent on the Brazos.
“Many threatened or endangered species serve as indicator species, that is, as the ‘canary in the coal mine,’” says Lesli Gray, an official with the U.S. Fish and Wildlife Service. “If water quality and quantity is not sufficient to support the shiner, impacts to human communities may be down the road.”
Gray says her agency is currently studying potential conflicts between the reservoir construction and species conservation and will be making recommendations “to minimize or avoid adverse effects to the proposed species and proposed critical habitat.”
But building a new series of concrete dams and storage reservoirs in the Brazos is just one of many heated points of conflict between state water planners, municipalities, industry, power generators, farmers and environmentalists. As the drought drags on, labyrinthine laws that allocate increasingly scarce water supplies among municipal, agricultural and industrial users in Texas are becoming a hotbed of contention, setting farmers against manufacturers, community against community and state agency against state agency.
Today, there’s simply not enough water flowing in the Brazos River to satisfy all the water rights claimed by cities, farmers, power plants and other industry. “Even in normal to moderately dry times, a lot of junior rights permits will not have enough water to divert,” says Brad Brunett, water services manager for the Brazos River Authority.
Martin Rochelle, a lawyer who represents dozens of cities that draw water from the Upper Brazos, often lies awake at night worrying what will happen if the drought continues its stranglehold on the Brazos.
“There will be a land rush for water,” Rochelle says. “That can’t be good for anyone, and it certainly isn’t good for the Texas economy, which is the envy of many of our sister states. We have big challenges simply as a result of Mother Nature — dueling with each other on the side won’t be good for anyone.”
But the dueling is already taking place in courtrooms across Texas. One dispute broke out in December 2012, pitting farmers against cities, power generators and Dow Chemical. The suit, brought by the Texas Farm Bureau and two Brazos Basin farmers against Dow and the Texas Commission on Environmental Quality, challenged the state’s authority to suspend farmers’ water rights to the Brazos River during a severe drought while exempting municipalities and power plants from the suspension. The state claimed it had the right to do so because the “public health, safety and welfare” were at risk from the suspension — a risk triggered by Dow Chemical’s “priority call” on the diminishing supply of water in the Brazos.
Under Texas’ “prior appropriations system” of allocating water, predicated on a “first in time, first in right” doctrine, Dow held “priority rights” to the Brazos dating back to 1942, and that gave the company the right to millions of gallons of river water over the cities, farmers and all the other holders of water rights younger than theirs. There simply wasn’t enough water in the river to satisfy all the water needs of every user in the basin.
Dow operates a giant chemical complex at the mouth of the Brazos that uses more water than many Texas cities. But beginning in 2009, the flow rate in the drought-stricken Brazos became so low and slow that Dow feared it might not be able to divert millions of gallons of water it needed each day to operate its plant. On two occasions, Dow asked TCEQ to enforce its “senior” water rights, otherwise known as “run-of-the-river rights,” to more than 21 billion gallons a year authorized to Dow in 1960 and 1976. In responding to Dow’s request, TCEQ suspended the water permits of farmers, industry, municipalities and other users “junior” to Dow’s 1960 and 1976 rights. All “junior” rights holders shared the burden equally.
But during 2011 and 2012, the drought was laying waste to the Brazos Basin and Dow became desperate for more water. In November 2012, Dow asked TCEQ to suspend the “junior” diversion rights of farmers, industry, municipalities and other users upstream from their plant once again in order to insure its rights to divert 150,000 acre-feet per year, or about 48 billion gallons of water, from the Brazos under its appropriation right of 1942. At the time of its priority call, Dow’s daily water consumption exceeded the 143 million gallons of water used daily by the 1.3 million residents of Dallas.
In fact, Dow used more than 1 trillion gallons of water between 2009 and 2012, according to the TCEQ.
To comply with Dow’s request, TCEQ would have had to curtail water and power to millions of residents in the Brazos Basin. So TCEQ turned to a new state law enacted in response to the drought, known as the “emergency exception,” allowing it to exempt certain cities, industry and power plants from Dow’s “priority call” because it would have threatened “public health and safety.” Instead, TCEQ suspended the water rights to about 140,000 acre-feet that farmers and other irrigators were authorized to divert from the Brazos.
The Texas Farm Bureau sued TCEQ and Dow, arguing that in suspending the diversion rights of farmers for irrigation while allowing cities and power plants with more junior rights to divert water from the Brazos, the state, in effect, overturned its own water appropriation laws. “It turned the whole system upside down,” says Regan Beck, assistant general counsel for public policy at the Texas Farm Bureau.
Frank Destefano, who grows corn and cotton on 4,000 acres near Mumford, says suspending the water rights of more than 700 farmers to satisfy Dow’s “priority call” could have amounted to a death sentence for him and other farmers who depend on the Brazos to irrigate their crops. If a Travis County Court hadn’t rescinded the suspension, Destefano, a plaintiff in the Farm Bureau’s lawsuit, says he might have been forced to “dry farm” his land, cutting cotton production and his gross income by about $250,000.
“It would have been devastating,” he says. “That’s what the water means.”
The Travis County Court ruled that TCEQ’s suspension of the farmers’ water rights violated the state’s priority doctrine. TCEQ has appealed the ruling to the Corpus Christi Court of Appeals. Meanwhile, TCEQ is considering appointing a “watermaster” to monitor and protect water rights on the Brazos River.
That would please Dow, NRG Texas Power LLC and a number of other water users downstream who have petitioned the TCEQ to appoint a watermaster to make sure none of the “junior holders” siphon water upstream that belongs to them. Watermasters monitor and enforce surface water rights on the Concho River in West Texas, the Colorado River Basin in South Texas and parts of the Nueces River and Rio Grande. But on the Brazos, the state has relied on an honor system, counting on farmers and others to take from the river only the water they’re entitled to under the terms of their diversion rights.
But one of the major snags in this system is that “water users have no reliable way to know how much of the water flowing by is theirs to divert and how much they must allow to pass to senior-right holders downstream,” according to a recent TCEQ report. “Without a watermaster or someone hired to perform a detailed investigation, it is hard to tell who is following the law.”
A Brazos River watermaster, appointed by the TCEQ, would be on the river daily, monitoring stream flows, reservoir levels and water use to prevent illegal diversions. Before opening their sluice gates or operating their pumps, farmers and other water users would be required to notify the watermaster and state how much water they intend to divert. The watermaster could lock up the pumps of anyone who takes water from the river that rightfully belongs to another user. During periods of low stream flows in the river, the watermaster would have the authority to allocate available water among the users according to each user’s priority date, ensuring that water reaches senior rights holders downstream like Dow.
The appointment of a watermaster would come at a good time for Dow. Because of the prolonged drought, the flow of water in the Brazos is so slow that, increasingly, saltwater in the Gulf of Mexico is migrating back up river, threatening to enter Dow’s plant 35 miles upstream. To prevent saltwater intrusion, Dow has had to release millions of gallons of water it’s purchased and stored in the Brazos River Authority’s reservoirs downstream “to keep the salt wedge from migrating upriver” and entering the plant’s intake pumps, according to a Dow spokeswoman.
Saltwater intrusion has become such a serious threat, the spokeswoman says, that the company is preparing to build a temporary dam downriver from its intake pumps that will be made of “natural materials and will be washed away if the river starts running again at high flows.”
Dow also plans to install new, state-of-the-art equipment to recycle freshwater and “enable the use of seawater instead of freshwater in some processes,” the spokeswoman says. As a result, Dow says its average consumption of about 100 million gallons of water a day for its plant and nearby residents is not expected to increase despite a major expansion that’s now underway.
Dow hopes its saltwater dam, stepped-up water conservation measures and the appointment of a watermaster will ensure that there’s enough water in the Brazos, even during severe periods of drought, to meet its needs. “The bottom line is, as a senior water rights holder, we need to have our consumption rights fully met and we have to be able to take the water from above the salt wedge at our diversion points,” says the Dow spokesperson.
But as is often the case with water use in Texas, there’s considerable disagreement among farmers, cities and industry about Dow’s plans to make sure its “consumption rights are fully met.” In making its priority call in 2012, Dow claimed upstream farmers were diverting water that belonged to the company under its senior rights. But farmers who faced suspension of their water rights because of Dow’s priority call also harbor mistrust and resentment toward Dow and other senior rights holders downstream.
The farmers contend that whenever Dow makes a priority call requiring them to release their water downstream, they should at least be compensated for their water rights so they can purchase water under short-term contracts from the Brazos River Authority or another supplier.
“They [Dow and other downstream users] can buy water from these farmers, they can sell it [back] to them and be compensated for it, but they’re choosing not to do that,” says Regan Beck, a lawyer for the Texas Farm Bureau. “They’re taking without compensation.”
But when it comes to the Brazos River Authority — the quasi-public entity that manages Possum Kingdom Lake, Lake Granbury and several other reservoirs, develops and distributes surface water supplies for the Brazos Basin and provides wastewater treatment — the mistrust over the Brazos River Authority’s 2004 request for a permit from TCEQ to divert 421,449 acre-feet of water per year from the Brazos on top of the 670,000 acre-feet per year it currently diverts from the river has united an unlikely group of opponents: environmentalists, farmers, homeowners and even Dow Chemical.
The Brazos River Authority says it must have the water to meet the water needs of an ever-swelling horde of people and industries moving into the Brazos River Basin. Brad Brunett, the authority’s water services manager, says the agency is requesting the additional water “because we have contracted for all the water available to us through our existing water right permits.” But opponents worry that the Brazos River Authority’s diversion of so much additional water from the river will impact its flow, the quality of the water, native fish and wildlife and, in the case of Dow and other major industrial users, their senior water rights.
“These water battles [pitting one group against another] are a result of system that’s utterly broken,” says Rick Lowerre, an environmental lawyer representing landowners who have filed suit seeking to block the Brazos River Authority’s attempt to secure all future water rights within the Brazos River Basin.
“Most states have strict limits on speculation, on banking,” he said. “You don’t get the water if you can’t show a real need because somebody else may need it. But over the last 10 to 15 years, the state has changed the law by agency action to eliminate a showing of need — a real beneficial use — allowing for speculation and banking of water rights. So the BRA [Brazos River Authority] can ask for the rest of the water in the river and force people who need water to buy from it without regard to impacts on the environment, property values and other concerns.”
As the Possum Kingdom and Lake Granbury reservoirs evaporate by the day, residents are deeply concerned that if TCEQ grants the Brazos River Authority’s request for an additional 421,449 acre-feet of water per year from the Brazos to sell to cities and industry, their property values will plummet and their way of life will be destroyed. They’ve banded together in grassroots organizations to save the river and their lakes. The Possum Kingdom Lake Association has joined with the Friends of the Brazos River, Friends of Lake Limestone, the Lake Granbury Waterfront Owners’ Association, the cities of College Station, Granbury, Houston, Lubbock and Round Rock, Hood County, Comanche County Growers — a collection of farmers — and even Dow Chemical to protest the Brazos River Authority’s water rights application.
At Possum Kingdom Lake, the oldest reservoir in the Brazos Basin where Graves’ journey down the river began, Jim Lattimore spent his life on the lake with his children, boating, fishing and hiking. The lake remains as important to him as the untamed river was to Graves. Lattimore understands the lakes were made to provide water and electricity to people across the river basin. But just as Graves felt a deep, almost sacred connection to the river, he also feels a mystical connection to the lake.
But today, there’s a lot less of the lake left to love than when Lattimore raised his children on it. As the flow of water from the Upper Brazos has faltered throughout the long drought, sediment has been slowly building up at the bottom of the lake, reducing its storage capacity from 724,700 acre-feet to about 540,340 acre-feet, according to the state’s water development board. A Brazos River Authority spokesman disputes the claim of sediment buildup in the lake, and says that despite the rapid decline in lake levels, “there’s still a lot of water there.”
That thinking, says Lattimore, represents a mindset that doesn’t fully grasp the consequences of collecting and selling huge volumes of water to cities and industry from a river that’s severely stressed beyond any time in its history.
“If they sell a million acre-feet in a year,” says Lattimore, “they could conceivably drain Possum Kingdom and still be looking for more water.”