Recently the Mason County News ran an ad for a Menard County landowner urging readers to contact the Texas Commission on Environmental Quality (TCEQ) in support of establishment of a watermaster on the San Saba River. The landowner alleged that the “boys” pumping upstream to “protect their precious grasses and trees” are causing the river to dry up at the far eastern end of Menard County.
Let’s sprinkle a few facts on those statements.
In Texas the state owns all surface water. Back in the late 1800’s, faced with increasing population growth and limited water supplies, Texas adopted the system of prior appropriation used in every Western U. S. state to allocate surface water. The law asserts a “first in time, first in right” priority to use of water ; when there are shortages, a landowner with an established history of early use has a right to make a “ priority call” on rights with a later priority date (“junior rights”) to curtail their use of water until the senior right has been met.
Following the drought of the 1950s it was apparent that there were more claims to water than there was supply, so the state began a process of court adjudications of surface water rights in all the state’s rivers. The Colorado River basin adjudication took place in the mid-70s. Everyone claiming a right to use water was required to file documents proving up their use and the date on which the use began. By the early 1980s, Certificates of Adjudication for every water right owner on the Upper Colorado and its tributaries had been issued.
Generally the more senior rights in the Colorado basin are located on the lower river near the coast - with the exception of Menard County, which has some of the most senior rights in the state, dating back as early as 1874. However, owners of tracts of land lying along the river are not required to have a Certificate of Adjudication or permit for domestic and livestock (d&l) use. This exception includes water for drinking, bathing and other household use, for gardens that supply produce used solely for family consumption and for watering livestock. The state considers the d&l right to be “superior” to adjudicated rights. Consequently, the TCEQ is authorized to suspend irrigation rights that have been continuously used for 100 years to make a living in favor of a tract bought five years ago for recreational use by a landowner who may not even be a resident of the county.
In the summer of 2011, all the priority calls on the San Saba were requested by exempt d&l users.
Establishment of a watermaster provides for government regulatory officials to check on the status of the river, and in times of low flows, to assess means of maximizing water allocation and to suspend municipal, irrigation and industrial water rights in order of priority.
On rivers with a watermaster, water rights owners are required to install and maintain meters that measure diversion within 5% of accuracy, and each diverter must give advance notice to the watermaster, within time limits set by the watermaster, whenever he intends to divert. The information he must provide includes how much water he intends to divert, a schedule for the diversions and the rate at which water will be diverted. The watermater will set a period of time for which the declaration of intent will remain in effect, and may change that length of time at his discretion. At the end of the duration of the declaration of intent no more water may be diverted until a new declaration has been submitted to the watermaster,. These regulations apply all year every year, not just when a drought has causes shortages.
According to the TCEQ, the cost of a watermaster on the San Saba is estimated to be about $250,000 for the first year and $175,000/year thereafter, all of which will be paid annually by water-rights owners, regardless of whether or not there are water shortages. Exempt d& l users, who so far have been the only landowners to benefit from suspensions by the TCEQ, do not have to pay any watermaster fees.
There are several hydrological characteristics of the San Saba which would seem to make it unsuitable for watermaster regulation.
1) When the Menard Irrigation Company canal is shut down, a wide expanse of the river alluvium in the valley east of Menard dries up. If it remains dry for several months, thousands of acre-feet of water are lost re-hydrating the alluvium before it will pass water on through to the eastern end of the county., thereby delaying even longer downriverflows.
2) Evaporation rates during the last three years have been significantly higher than evaporation in the ‘50’s .When flows are already low because of drought, much of the remaining flow evaporates while passing over the shallow, rocky river bed.3) Recent water availability analyses show a disturbing downward trend in river flows in the entire Upper Colorado basin. When flows for the period of 1940-1998 (which includes the drought of the 1950s) are compared with flows from 1980-2010, they are substantially lower on the San Saba and upriver tributaries in the last two decades. No one is certain about why this is occurring.
The Menard Irrigation Canal Company owns about 4800 acre-feet of diversion rights, nearly half of all the adjudicated rights in the county. Last summer there was not enough flow in the canal for its shareholders to irrigate after the third week in June. At the end of the first week of August, the TCEQ suspended all water rights in Menard County with a priority date later than December 31, 1899. Despite these measures, water never reached those landowners who had requested the priority calls until rains came in January and February. Much of this time, though the river was not flowing, there were a few “holes” from which irrigators could have watered hay that was desperately needed by local ranchers. Likewise, pecan trees, which take ten years to reach production, could have been saved.
All told, water rights amounting to 1.4 billion gallons were suspended for the benefit of six people who never received any of the water. This year the Menard Irrigation canal has had no flow at all since the middle of June, in effect suspending itself. And yet, again, five or six d&l users have asked the TCEQ to suspend water rights. Is a watermaster worth the cost and intensive regulation, when in years of severe drought downstream landowners will not get water regardless of suspensions of rights of irrigators?