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June 2013 Texas Water Conservation Association 221 E. 9th Street, Ste. 206 Austin, Texas 78701-2510 512-472-7216 Fax: 512-472-0537 http://www.twca.org Officers Phil Ford President Robert J. Brandes President-Elect Luana Buckner Immediate Past President Association Staff Leroy Goodson General Manager e-mail: lgoodson@twca.org Dean Robbins Assistant General Manager drobbins@twca.org

Opinions expressed in Confluence are those of the writer and not necessarily those of TWCA, its officers, directors or staff. © 2012, TWCA

Moody Gardens Hotel is the popular site for TWCA’s 2013 Mid-Year Conference TWCA members from all across the state will be converging on Galveston on June 19th for the Association’s annual Mid-Year Conference. The event is the occasion for catching up and networking with other water industry representatives, participating in informative committee and panel meetings, hearing top experts discuss critical topics, and enjoying some leisure time with friends. Kicking off the conference at 8:00 a.m. on Wednesday, June 19th is important Public Funds Investment Act Training, conducted by Patrick Shinkle, University of North Texas Center for Public Management. Out on the links, registration for the 7th Annual Jim Adams Memorial Golf Tournament starts at 11:30 a.m. with a noon tee-off on the Moody Gardens Golf Course. Wednesday evening, starting a 6:00 p.m. in the Garden Cay Room, Lloyd Gosselink Rochelle & Townsend, P.C. will host a reception for all TWCA members on behalf of the Membership & Services Committee. This new “meet and greet” feature is gaining in popularity -- following the highly successful one in San Antonio last fall -- and is a great venue to join up for evening activities. Thursday, June 20th begins with Panel meetings from 9:00 a.m. through noon, and includes sessions for the Drainage District, General & Environmental, Groundwater & Irrigation Panels, Membership & Services, Federal Affairs and Water Quality Committees. The first General Session starts at 1:00 p.m. in Moody II. Commissioner Toby Baker, TCEQ, takes the second afternoon slot, and is followed by State Continued on page 2

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Mid-Year Conference Continued from page 1

Representative Eddie Lucio, III. Attendees will also have the opportunity to hear the latest information on the Texas Drought from state climatologist, John Nielsen-Gammon, Ph. D., Texas A&M University. The afternoon session concludes with an update of the Corps of Engineers Initiatives in Texas; a panel discussion about Desal in Texas, and concludes with the TWCA Board of Directors meeting. An exciting evening is planned, highlighted by a reception and dance sponsored by the TWCA Risk Management Fund. Members are cordially invited to join in the festivities as the Fund celebrates their 25th Anniversary of service to TWCA! Friday’s General Session will be opened by Aaron Streett, Baker Botts and Lyn Clancy, Lower Colorado River Authority, discussing “Federal Intrusion into States’ Rights Using the ESA and TWCA Amicus Brief.”

BAKER

NIELSON-GAMMON

LUCIO

STREETT

Emily Rogers, Bickerstaff Heath Delgado Acosta L.L.P., and Stacey Steinbach, Texas Alliance of Groundwater Districts, will provide a “Legislative Review”. Next up is a discussion about Drought Contingency Planning by Scott Swanson, LaCosta Enviuronmental LLC, and Daryl Slusher, Environmental Affairs and Conservation, Austin Water Utility. Wrapping up the Conference is a presentation by Jason Hill, Lloyd Gosselink Rochelle & Townsend, P.C., addressing “Challenges to Implementing the State Water Plan.” Stefan Schuster Daniel B Stephens & Associates, Inc., and Van Kelley, INTERA, Inc., close the session with a discussion of “Groundwater Monitoring and Groundwater Conservation Districts.” The Water Laws Update/and Water Laws Committee meeting, chaired by Lyn Clancy, Lower Colorado River Authority, will be held at 11:30 a.m.

MARK YOUR CALENDARS TWCA 2013 FALL MEETING OCTOBER 23-25, 2013 Crowne Plaza Riverwalk San Antonio

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Dear Colleagues, As we approach the mid-year conference at Moody Gardens in Galveston I want to take a moment to thank you all for the honor of being this year’s TWCA President. I also want to provide some brief thoughts on where those of us in the water business find ourselves at the present time. We are part of an industry that is in the midst of a truly defining moment. Our state is at a major crossroads in terms of meeting the challenge to supply water to a growing population in the future, further exacerbated by the historic drought we are currently experiencing. Fortunately, with the forward-thinking decisions made during the 83rd Legislature, we will hopefully have the necessary financial investment Phil Ford on the part of the State to assist all of us in ensuring we have adequate water supply. This is something that has been a long time coming and we thank those legislators who led this effort. It is now up to us as water professionals to do what is necessary to move the ball forward and keep Texas thriving. There will be challenges along the way, of that you can be assured. But we cannot afford to fail‌our grandchildren are depending on us! I look forward to working with all of you on achieving the monumental task that stands before us. Should you have any questions or wish to serve on a specific TWCA committee, do not hesitate to contact me. Sincerely,

General Manager/CEO Brazos River Authority

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Never underestimate the power of COMMUNICATION! Over the past year, the Membership & Services Committee has been reinventing itself to focus on helping TWCA members get the most from their membership...and to help make their participation at the organization’s three annual conferences more productive and meaningful. “One of the areas most frequently mentioned during dialogue among Committee members,” explained David Harkins, RSP Espey and chair of the committee, “is how important it is to assist first-tme attendees bridge that initial introduction to TWCA... when they come into the meeting room without immediately knowing anyone. I think we all remember how that feels.” “We have adopted a strategy to discover which attendees are there for the first time, and to have at least one of our members ‘shepherd’ them through the program and events. We’re not taking them to raise,” Harkins laughed, “but we want to make sure they are welcomed appropriately and can navigate what can be some complex choices.”

Another Committee feature is the “Meet and Greet” reception held the opening evening of the TWCA conferences. Sponsored by one or more Committee members, this event provides an excellent opportunity to catch up with friends and associates and to meet new folks.” The Committee is introducing a Frequently Asked Questions section on our website and in CONFLUENCE (see page 5). TWCA is one of the oldest and most prestigious water membership organizations in the state and, after 69 years, it has accumulated quite a bit of history. If members have questions to submit for the FAQ feature, please use the online “Contact Us” menu and select “info”. “Our committee has expanded with each successive TWCA meeting,” Harkins said. “And with each new participant we learn more about how we can better serve new and existing members. We take considerable pride in the fact that our meetings focus on obtaining input from attendees. We’re enjoying a growing synergy and we aggressively invite folks to come sit in, give us their two cents worth, and join the group.” One of our new roles is to attend other Panel and Committee meetings to gain a better understanding of their issues, agendas and concerns. “Not only does this improve our overall awareness of critical issues,” Harkins points out, “but it provides an opportunity to expose others to our Committee and objectives, as well.” Creating an updated “virtual” membership packet is underway and, once reviewed and completed, will be accessible online. 

TWCA members are cordially invited to a Welcome Reception, Wednesday June 19th, 6-7 pm in the Garden Cay Room. The event is generously sponsored by Lloyd Gosselink Rochelle & Townsend P.C. on behalf of the Membership & Services Committee.

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Frequently Asked Questions About TWCA Q. What are TWCA Panels and what is their role in the organization?

representatives from Water Districts, River Authorities, consultants, agencies, attorneys and others interested in water resources management, development and utilization, and environmental issues within the objectives of the organization. DRAINAGE DISTRICTS – Representatives from drainage districts, consultants, attorneys, suppliers, and other interested individuals. UTILITY DISTRICTS – This panel includes representatives from municipal utility districts, water improvement conservation districts and other special districts, consultants, attorneys, and others interested in water resources supply, development and management, and in protecting the State’s water resources for all beneficial purposes. The Panel sessions held during TWCA meetings are open to members, and are generally held the first morning of the conferences. The time and room assignments are included in the meeting agenda program, along with information about any special speakers. 

A. A unique feature in the TWCA organizational

structure is having “Panels” in addition to “Committees”. This can be confusing for firsttimers, so here is an explanation of what they are and how they work. The Panels play an important role in the makeup of the TWCA Board of Directors. In addition to the usual officers, the Board also includes seven members elected at the annual meeting from each of the panels. Panel participants include public officials, business executives, attor neys, engineers, educators, agriculturists, and professionals involved in conservation, resource development and management, and utilization of the State’s finite water resources for beneficial purposes. The panels are divided by water use or interest and convene at each of the TWCA meetings during the year. GROUNDWATER – Includes representatives from Groundwater Districts, attorneys, and other interested individuals. IRRIGATION – Includes representatives from Irrigation Districts, authorities, consultants, attorneys, and other interested individuals. MUNICIPAL – Representatives from municipalities, both large and small, authorities, districts, consultants, attor neys, manufacturers and suppliers, and other interested individuals. RIVER AUTHORITIES – Made up of representatives from River Authorities, other Special Water Districts, consultants, attorneys, and others interested in water resources supply, development, management and related issues. N AV I G AT I O N & F L O O D C O N T R O L – Representatives from Navigation Districts, Flood Control Districts, Ports and Harbors, consultants, and others interested in these important topics. INDUSTRIAL – Representatives from industry, businesses, consultants, attorneys, and others interested in water and wastewater issues in the industrial sector. GENERAL & ENVIRONMENTAL – Includes 5


CONSERVATION DISTRICT “CATCHES” TWDB AWARD Conservation essential to the future water supply… Virtually all of the water supply for Montgomery County has traditionally come from groundwater — from the Gulf Coast Aquifer System. According to Jones, “The important point here is that current research indicates that the long term sustainable recharge of the aquifer is about 64,000 acre-ft. a year. By 2040 the total water demand is expected to be 154,000 acre feet. What this means,” she emphasized, “Is that in 2040, we will be exceeding the sustainable recharge rate of the aquifer by almost 90,000 acre-feet per year! “Economic growth in Montgomery County is supported by each of us,” Jones continued. “For the growth and prosperity to continue, our community must have a reliable and adequate water supply. Lake Conroe is a reservoir, and it was designed to meet our future water demands. We’ll continue to evaluate alternate sources for the future….but the bottom line is that water conserved is always the least expensive option for meeting our needs.” Jones is a member of both Groundwater Management Area 14 and the Region H Planning Group, and serves on several of the Group’s committees. She strongly believes that this longrange planning process is essential in balancing her area’s water requirements with the available supply. The information gathered by the group -- area

What better way to underscore the Lone Star Groundwater Conservation District’s (LSGCD) mission than to “walk the walk”? The LSGCD — created in November 2001 to manage, conserve, and protect Montgomery County’s groundwater resources, to develop and implement water conservation strategies, and to work collaboratively to ensure a sustainable, adequate, high quality and cost effective water supply for current and future needs – is demonstrably living up to their “middle name” of Conservation. When it came time to design and plan the construction of LSGCD’s eye-catching new headquarters, the District had a unique opportunity to demonstrate that expansion in fast-growing Montgomery County can be achieved without sacrificing lifestyle quality in the face of looming water concerns. The project started with the glimmer of an idea by the District’s Water Conservation Committee Chairman, W. B. “Billy” Wood. A frequent Texas traveler, Wood had seen an exciting concept for a water efficient facility during a visit to north Texas. It was his vision that sparked the innovative design that prompted him and General Manager Kathy Turner Jones to work with the District’s architect, Mark Todd Architects, to incorporate the concept into the final building plans. At that point, the District’s “Building and Facilities Committee took over management of the project. 6


population projections, trends in water requirements for agriculture and industry, the availability of water supplies (both surface and underground), and a review of water supply strategies — is not only critical to the area’s future, but to that of the state, as well.” Jones is also President of the Texas Alliance of Groundwater Districts. She points out that, “The state’s groundwater supplies are projected to decrease by 30 percent – from approximately 8 million acre-feet today to about 5.7 million acre-feet in 2060. This is primarily due to reduced supply from the Ogallala Aquifer as a result of its depletion over time, and reduced supply from the Gulf Coast Aquifer, thanks to mandatory reductions in pumping to prevent land subsidence. We have to be prepared to take the necessary actions to secure our future water resources. Doing so will require public understanding of some complex issues, and a commitment to accomplish these critical long-range strategies. So a very big component of our outreach strategy is to serve as an example when it comes to water efficiency measures.” Turning the vision into reality… The District’s facility planners seized the opportunity to implement imaginative water conservation measures at their new site, which included the installation of a unified rainwater harvesting system. At its heart is a 15,000-gallon underground storage tank that collects water from the parking lot via a gravel-filled arroyo. During extremely heavy rains, overflow is directed to an onsite retention pond. Complementing the underground tank are four 2,500-gallon aboveground tanks, which collect water from the main structure’s 10,000-square-foot metal roof that ultimately flows to the underground tank. Once collected, the rainwater is used to irrigate onsite trees, grasses, and shrubs (utilizing “bubblers” for the trees and “drip” fixtures for grasses and shrubs). But the resourcefulness doesn’t end there. The LSGCD headquarters site is awash with low-impact features such as permeable concrete and pavers that permit rainwater to percolate directly into the water table rather than flow into roadway ditches.

For example, the district paved a 6,000-square-foot section of parking lot with “grass pavers” (heavy plastic honeycombs filled with sand, gravel and dirt and planted with grass). These pervious pavers not only help replenish soil moisture but reduce the flow of sediment, chemicals and oil-based derivatives to offsite drainage systems. Additionally, the district installed sidewalks composed of pervious concrete, which allows rainwater to pass through to the soil that supports adjacent shrub and flower beds. All of these eco-friendly features are imminently affordable for adoption by the private sector for residential and commercial applications. It is hoped that these LSGCD examples of efficient rainwater harvesting from both permeable and impermeable sources will encourage their implementation for landscape irrigation across Montgomery County, reducing demand for water from the Gulf Coast Aquifer.

Kathy Turner Jones, Lone Star Groundwater Conservation District with Billy Wood, chair of the LSGCD Water Conservation Committee. Recognized for excellence… In February 2013, The Texas Water Development Board honored the Lone Star Groundwater Conservation District as the recipient of the 2012 Texas Rain Catcher Award in the government category. This prestigious TWDB award recognizes “excellence and innovation in capturing water from rainfall that might otherwise be wasted”. “We are delighted to have our conservation efforts recognized with this TWDB award,” LSGCD’s General Manager, Kathy Turner Jones said. “Our 7

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Rain Catcher

it nourishes, and learn about why water conservation is a top priority.”

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More to come… “This is only Phase I of this project,” explained GM Jones, “and this award has given us a little extra encouragement to demonstrate even more water sparing strategies that can be replicated by homeowners and area businesses. Water efficiency measures come in all shapes and sizes…and we are committed to providing realistic examples of what can be done to stretch our finite water resources with a little ingenuity. On the drawing board are some even more aggressive examples of projects that make economic and eco-sense. This isn’t rocket science. Much of what we have incorporated into our facility design is pure and simple common sense. And, we’re inviting folks to come take a look and to replicate what works for them at their own homes or commercial ventures.” For additional information about this exciting demonstration of water conservation measures, please visit www.lonestargcd.org or contact Kathy Turner Jones, at (936) 494-3436. 

project emphasizes that captured rainwater can be used to create beautiful landscapes while conserving a valuable resource. We hope it inspires the broader community to implement similar practices. Our reservoirs and aquifers need all the help they can get.” Winners of the Texas Rain Catcher Award are profiled in the TWDB newsletter and invited to Austin to receive their award during a regular meeting of the TWBD Board. Winning entries are prominently displayed on TWDB’s web site for two years and later archived for five years to promote the diversity of rain catching technology and to educate the public. TWDB’s Chairman, Billy Bradford, Jr., is outspoken in his praise for the award’s effectiveness in driving innovation in rainwater conservation. “Rainwater harvesting is an essential part of the 2012 State Water Plan. It’s important that visitors to LSGCD’s headquarters are able, firsthand, to witness the recycling of rainwater, see the landscape

Above – a 15,000-gallon underground storage tank collects water from the parking lot via a gravel-filled arroyo. Right – one of four 2,500-gallon above-ground tanks, which collect water from the main structure’s 10,000-square-foot metal roof that ultimately flows to the underground tank. 8


Ruling in Whooping Crane Case has Potential to Impact Texas Water Suppliers

By Lyn Clancy, TWCA Water Laws Chair On March 10, 2010, the Aransas Project (TAP) filed a citizen suit in federal district court, alleging violations by the Texas Commission of Environmental Quality (TCEQ) of Section 9 of the federal Endangered Species Act (ESA) in The Aransas Project v. Shaw, et al., The Aransas Project v. Shaw, et al.No. 2:10-CV-00075 (S.D. Tex. filed Mar. 10, 2010). The Guadalupe-Blanco River Authority, San Antonio River Authority, and Texas Chemical Council were allowed to participate as intervenor-defendants in the lawsuit, with many other water suppliers and water rights holders supportive of the defendants participating as “friends of the court” or amici curiae. Specifically, TAP alleged that TCEQ’s issuance of too many water rights in the Guadalupe River basin and refusal to exercise its alleged authority to reduce diversions during 2008-2009, combined with severe drought, resulted in an inadequate amount of freshwater inflows into the San Antonio-Aransas Bay systems, which, in turn, caused the deaths in 2009 of 23 endangered Whooping Cranes. TAP

claimed that the Whooping Crane deaths constituted an illegal “take” of the Whooping Cranes under Section 9 of the ESA. Section 9 of the ESA makes it unlawful for any person to “take” any endangered species of fish or wildlife within the United States or the territorial seas. The Act defines “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Rules promulgated by the U.S. Fish and Wildlife Service (USFWS) to implement the ESA further elaborate to define “harm” as “an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” On March 11, 2013 – almost exactly three years after the lawsuit was filed, the court issued an opinion exceeding 120 pages and essentially adopting TAP’s theory of the case in every respect and dismissed most of the expert evidence offered by defendants. Further, the court agreed with TAP’s 9

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offered interpretation of state law, concluding that TCEQ had full authority to manage the states’ water supplies through a variety of mechanisms to increase freshwater inflows to the bay. Of particular note, the judge concluded that TCEQ’s general jurisdiction over water rights and 2011 legislation that clarified TCEQ’s ability to adjust or suspend existing water rights to address drought emergencies1 gave TCEQ ample authority to limit new rights and adjust existing water rights to comply with federal law and address threats to endangered species, notwithstanding the prior appropriation doctrine. Most significantly, this case: (1) interprets Texas law on surface water rights to allow TCEQ to modify existing water rights to address environmental water needs; and (2) supports the ability of the federal ESA to trump Texas law on surface water rights. As a result of these fact findings and legal conclusions, the court limited TCEQ’s ability to

issue water rights or water rights amendments in the Guadalupe and San Antonio river basins (except in emergency cases) until it takes steps to comply with the ESA by obtaining an Incidental Take Permit and developing a Habitat Conservation Plan (HCP) for the Whooping Crane. Pursuant to Section 10 of the ESA, it is possible to get a permit that allows the incidental “take” of an endangered species. A Section 10 permit requires the applicant to assure funding for and implement a HCP that will, to the maximum extent practicable, minimize and mitigate the impacts of the incidental taking. The USFWS must also find that any incidental take of the species under the permit will not appreciably reduce the likelihood of survival and recovery in the wild. Not surprisingly, the decision has been appealed by the State and Defendant-Intervenors. The U.S. Fifth Circuit Court of Appeals granted an expedited briefing schedule and set the case for oral argument in early August 2013. Because the court’s holding represents perhaps the most significant case involving the intersection between state water rights and the ESA in years, with potentially far-reaching implications, several entities, including TWCA and others, have weighed in support of the parties’ positions on both sides of the appeal. Issues to be addressed in the appeal This statute, Tex. Water Code §11.053, is at the heart of the lawsuit brought by the Texas Farm Bureau against TCEQ, which challenges TCEQ’s implementation as an unconstitutional taking of vested property rights without just compensation. 1

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range from legal arguments related to the court’s interpretation of Texas water rights law to potential constitutional issues related to states’ rights to disputes over the science underlying the judge’s decision and the potential for significant economic and practical impacts of the court’s decision. This article generally summarizes the concerns raised by the Appellants and supporting amici curiae. TAP’s reply brief and supporting amicus briefs were only recently filed and are not reviewed in this article. Suffice to say they are generally supportive of the district court’s opinion in all respects. TWCA and others are concerned that the opinion, if upheld on appeal, undermines the value and the security of all Texas surface water rights and improperly threatens Texas’ ability to provide for its long-term water needs and, more immediately, to respond to one of the worst droughts Texas has experienced in decades. Although many aspects of the court’s decision raise issues of concern for TWCA and its members, perhaps one of the most concerning aspects of the opinion as it affects TWCA membership is the judge’s interpretation of Texas law, which concluded that TCEQ has the authority to retroactively impose conditions on existing water rights to address instream flows and freshwater inflow needs (collectively, “environmental flows”). Arguably, the court’s interpretation exposes existing water rights to further modification and limitation by TCEQ to address environmental water needs for the river and bay where no such limitations exist today. This may be the case even where no federally-endangered or threatened species are present or affected by the use of water rights. TWCA has argued that the federal court’s legal conclusions regarding TCEQ’s authority are contrary to existing Texas caselaw and the Texas Water Code, read as a whole. TWCA’s brief lays out why TCEQ’s authority instead is quite limited when it comes to adding or modifying requirements to existing water rights to address environmental flow needs. As specific water right holders potentially affected by the court’s decision, the cities of Victoria and Kerrville, CPS Energy, and CMC Steele have also addressed these issues in their amicus briefs.

Some allege that the judge’s decision could require the re-adjudication of all water rights, as well as riparian and exempt uses, within the GuadalupeSan Antonio watersheds – a costly and lengthy process that threatens the economic stability of the region. Arguing that the TCEQ’s authority to modify water rights during drought could be viewed as an unresolved issue in light of ongoing litigation between TCEQ and the Texas Farm Bureau, the Texas Farm Bureau urged the Fifth Circuit to certify the question of TCEQ’s authority to the Texas Supreme Court for resolution. Appellants, joined by several amici, continue to urge the federal courts to abstain from deciding the issues raised in the TAP suit at this time, because of the ongoing efforts of Texas to comprehensively address environmental flow considerations through the process required by Senate Bill 3, enacted by the Texas Legislature in 2007. They argue this case is analogous to the federal court’s decision to abstain from regulating pumping from the Edwards Aquifer in the mid-1990s using the ESA, instead deferring to the Texas Legislature’s efforts to implement protections of the aquifer and its endangered species. Another significant issue on appeal is whether the court correctly applied the law when it concluded TCEQ’s actions caused the take of whooping cranes. The Texas Farm Bureau, joined

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Whooping Crane

the evidence in the record also more appropriately supported the conclusion that low inflows were the result of a natural condition - extreme drought over which TCEQ had no control. In its amici brief, the Texas Public Policy Foundation (TPPF) focused much of its argument on the constitutionality of the lower court’s decision. TPPF, in support of the state defendantsappellants, asserts that the judge has impermissibly commandeered a state agency in contravention of the Tenth Amendment of the U.S. Constitution. The court, argues TPPF, has converted the ESA from a law of general applicability with incidental impact on states to one that requires the State of Texas to implement federal policy against its will. In concluding that TCEQ could be liable for a ‘take’ under ESA §9, the court followed the lead of the First Circuit’s opinion in Strahan v. Coxe. The court in that case concluded that the state of Massachusetts was responsible for a ‘take’ of the Right Whale through its issuance of certain fishing licenses. In urging the Fifth Circuit to overturn the lower opinion, TPPF argues that Strahan was wrongly decided and creates a perverse incentive for states to not make any efforts through regulation to protect species rather than protect them imperfectly and face potential liability under the ESA. Another area of significant briefing on appeal also concerns the issue of whether the remedy ordered by the lower court was appropriate and allowable. The lower court issued an injunction ordering TCEQ to immediately initiate efforts to obtain an ESA § 10 Incidental Take Permit (ITP) and develop the associated Habitat Conservation Plan for the whooping crane and to cease issuance of most water rights in the affected watersheds until such permit was obtained. Appellants argue that, even if a violation of ESA § 9 occurred, such remedy is not allowed. In support of Appellants’ arguments, CPS has also argued that, even if injunctive relief

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by several other states’ farm bureaus, as well as the City of Victoria focused considerable attention in their briefs supporting the Appellants’ arguments that TAP had not proven that TCEQ’s actions were the proximate cause of whooping crane deaths. These parties argue that the seven-step process that the court had to follow to conclude that the TCEQ’s actions proximately caused a ‘take’ was too attenuated to meet the required legal standard for proving a ‘take’ under the ESA. They argue that the multiplicative effect on uncertainty associated with such multi-step causation, where each step in the process has its own range of uncertainty, has such a significant effect on the overall probability that causation exists that the court should have required that each step in the process be virtually certain. Instead, they argue, the court improperly accepted evidence of correlation as evidence of causation. Further, they argue that there is no proof that there were, in fact, twentythree deaths, no proof that issuance of water rights caused the alleged deaths, and that TCEQ had no power to prevent the alleged deaths. The parties argue that the judge’s reliance on the evidence developed by a former U.S. Fish and Wildlife employee (Stehn) was improper, arguing that the evidence should never have been admitted under the applicable legal standard. Rather, the parties supporting the Appellants in this case argue that Stehn’s approach was not appropriately tested or peer-reviewed, nor generally accepted by the relevant scientific community. To support their position, the parties point to a study released by the USFWS in the Fall of 2012 that was critical of Stehn’s approach, and which the judge refused to admit after the trial had concluded, as well as other recent analysis that was completed after the judge issued her opinion. The parties argue that 12


could be obtained, the court applied a relaxed and improper legal standard for assessing whether an injunction should issue, giving undue weight to the need for increased bay inflows, while minimizing its consideration of the significant impact on other public interests, including the economic and public health and safety considerations associated with potential curtailment of power generation and other essential human water needs. As demonstrated by the array of issues raised on appeal and the potential for significant impact in Texas – and perhaps nationally – this case has garnered significant attention and will remain a focus of TWCA and others as the litigation proceeds. An appeal of the Fifth Circuit opinion, whatever its result, will come as no surprise. TWCA will continue in its efforts to support the State of Texas and other defendants in this case in their quest to have this opinion reversed. 

Lyn Clancy, current TWCA Water Laws Committee Chair, is a Managing Associate General Counsel and Senior Water Policy Advisor with the Lower Colorado River Authority. She is also a member of TWCA’s Board of Directors, and serves as Chair of the Navigation Panel. 

Our Sincere Appreciation to:

TWCA Risk Management Fund

for sponsoring the reception & dance Celebrating its 25th anniversary

For sponsoring the Ice Cream Treats

For sponsoring the Name Badges 13


and combine resources to obtain greater stability and economies of scale in managing their risks (Of note, the Fund practices it own form of risk management by reinsuring with one or more other insurance companies whereby the ceding company – the Fund – and the reinsurer enter into an agreement which details the conditions upon which the reinsurer would pay a share of a catastrophic claim incurred by the ceding company). Coverage and Services The Fund offers three comprehensive programs designed to meet the vast majority of members’ insurance needs (the limited number of coverages not provided by the Fund can be arranged for with various insurance carriers simply by contacting the Fund).  Workers’ Compensation coverage with benefits as set forth in the Texas Labor Code. Workers’ compensation covers medical bills and income benefits should an employee sustain an on-the-job injury.  Automobile Liability, General Liability, and Public Officials Errors & Omissions coverages, each custom tailored to meet the risk financing needs arising from exposures commonly faced by water districts and authorities in Texas.  Property coverage offered through the property program includes buildings, business personal property, contractor’s equipment, boiler and machinery and automobile physical damage… broadly written to provide maximum protection to members.

Sharing the Burden...

TWCA Risk Management Fund During the mid-1980s water districts, authorities, and other public entities were seriously challenged by the lack of available liability insurance at affordable costs due to instability in the commercial insurance markets. The Texas insurance industry was abandoning water districts and authori­ties completely or imposing exorbitant rate increases and restricting coverage. Simply put, many districts and authorities were forced to consider paying huge premiums or going with­out coverage. To confront this issue, a group of at-risk entities responded by working with their statewide association, the Texas Water Conservation Association (TWCA), to develop a collective solution…the Risk Management Fund (the Fund). During its first year of operation, which began July 1, 1988, forty-five members joined the Fund, contributing $1,263,248. Losses (claims amounts paid and reserved) totaled $537,033 and the Fund ended its first year with a net income of $160,823. The Fund is a self-insurance pool created under Texas law through interlocal agreements among water districts and authorities and the Fund. Through this comprehensive self-insurance program, participating members pool their risks

Because it is member-owned and governed, the Fund is uniquely positioned to understand 14


and respond to its membership’s fluid operating environment. This allows the Fund to respond to emerging issues quickly and to provide risk protection services to address new kinds of exposures. In short, the Fund has evolved as a partner with its members in reducing risks and exposures inherent in their operations. Loss prevention is of the highest priority for the Fund. This is reflected in the broad range of services, including surveys and consultations, training, and other loss prevention resources provided to members. As the Fund matured, the growing needs of members propelled it into new areas of service and coverage – areas such as coverage for breach of contract, sudden events pollution liability, punitive damages, and dam failure liability. Online and website capabilities were also developed during this period allowing member access to claims data and other resources Along with the three primary elements of self-insurance coverage, members receive what sets the Fund apart from other insurance providers – expanded services that the Fund calls “differentiators”. Woven into and made an integral part of the primary insurance coverage, these special services are designed to meet the unique needs of members. They include: 1. Claims and Litigation Management: The key to claims cost control is timely and aggressive intervention, investigation, and advocacy. The Fund selects skilled defense attorneys to defend the interests of its members. Each claim is professionally monitored until resolution. And during the development of various conclusion strategies and prior to settlement of any liability claim, members are consulted and their wishes considered. 2. Risk Control Consultation: The Fund’s loss control services are designed to reduce the membership’s compensation, liability, and property exposures…to include safety surveys of facilities and procedures, staff training, and member education. These services are customized to the particular needs of each district or authority. Specifically, they include a loss control survey which is used to develop recommendations for the member;

visits to consult on implementation and to assist with special projects; and quarterly claims reports identifying the nature and source of accidents. The Fund also provides individualized training for members on a variety of safety and loss control topics. 3. Risk Management Consultation: The Fund offers risk management consulting comprised of a complete review of members’ risk management systems. On site reviews are conducted that include interviews of key personnel involved in risk management and a review of Continued on page 16

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Risk Management

Fund offers a defensive driving program designed to educate participants about their individual responsibilities while operating a motor vehicle. 6. Personnel Resources: The Fund has developed and makes available various resources to assist districts and authorities in their operations and to help them avoid pitfalls that can develop into costly claims. It offers construction plan design reviews through its excess property insurance partner, FM Global. These professional engineering experts offer suggestions for projects in the design phase that reduce the potential for loss. The Fund also provides a Personnel Policy Guide as a resource for members to use in developing their own personnel policies. And the Fund distributes a comprehensive manual entitled Safety Program: A Guide to Loss Control. This safety program was developed in cooperation with a safety advisory committee composed of safety coordinators and managers of member districts and authorities. 7. Newsletter & Online Training: The Fund’s quarterly Risk Advisor newsletter keeps TWCA members informed of current trends and developments. It also offers online safety training on a variety of relevant topics free of charge to members…online training courses that have been carefully selected to address the needs of members. The videos are suitable for use in safety meetings or in employee orientation. Spanish language videos are also available. 8. Leadership Training: The Fund recognizes the value of skilled, motivated managers in the everyday operations of member entities; thus, members can receive a one-day introductory management development course. The Fund also provides training on specific topics designed to increase skills and abilities of managers and supervisors. 9. Legal Loss Prevention: Through this program, a member can contact the Fund’s office and be referred to an attorney who will answer member questions free of charge. This program can, and often does, prevent lawsuits from happening. It can also dramatically reduce the legal expenses incurred defending a lawsuit.

Continued from page 15 member documents and loss history.The resultant comprehensive report to management includes recommendations for improvement along with a commitment to help implement recommendations and provide further consulting services. These additional consulting services might include contract and RFP/RFQ review, safety committee design and coaching, safety policy review, risk management training for managers and supervisors services and extensive loss analysis. This package of services is offered without additional charge to members. 4. Loss Information Reporting: The Fund provides loss information reports that help determine the causes of accidents and discover what might have prevented them.  Through the analysis of loss information, surveys, and reviews of member policies, the Fund develops specific recommendations for each member to reduce losses in areas targeted for improvement.

5. Regional Seminars and Workshops: The Fund offers a one-day training course for members’ staff who are responsible for safety within their district or authority. The course provides in-depth instruction that equips participants with the tools necessary to design and implement sitespecific safety programs for their facilities and operations. The Fund also conducts a series of back injury prevention seminars, held at members’ locations. This program lasts approximately five hours, and covers the anatomy of the back, proper lifting techniques, and nutrition. And the 16


financial reports to the GFOA awards program since 1993, and has received a certificate for excellence in financial reporting each year. Fund members are enthusiastic about the many services the Fund provides. Rhoda Sykes, Administrative Manager for Friendswood’s Galveston County Consolidated Drainage District said, “We have received invaluable assistance from the Fund’s risk management consultant and their senior trainer in dealing with management communications issues that had safety and employment liability ramifications.  Each of those individuals spent time with us onsite, dealing with such issues and offering solutions.  No other carrier in our past has offered this kind of help to our organization.” “The Fund’s Board and staff have been tremendous partners and advocates throughout the Fund’s 25-year history,” adds Jace Houston, San Jacinto River Authority’s General Manager.  “They have trained our employees, educated us on controlling risks, defended us in court, and protected us from cost volatility in the market.” One of the reasons for the Fund’s success is its governance; its eleven-member Board of Trustees is elected by the water districts and authorities that participate in the Fund. Each trustee must be an official or a full-time salaried employee of a Fund member. Trustees serve overlapping three-year terms. Annual Board elections are conducted in the spring of each year, and members have the opportunity to nominate candidates and to cast ballots as part of the election process. The Board makes all major policy decisions. It meets four times per year, and also conducts annual strategic planning and board training sessions. 

10. Legislative Matters: Other important Fund “differentiators” include providing summaries and the monitoring of bills in the legislative process that might impact water entities, and contacting legislators to help educate them on water issues. These kinds of “differentiators” provided by the Fund are services normally unheard of in the insurance industry. Recognition… The TWCA RMF has been recognized by the Association of Governmental Risk Pools (AGRiP) – an association of governmental risk pools around the country – for compliance with the Association’s advisory standards for pool operations. Only forty-five pools among hundreds in the United States are currently rec­ognized by AGRiP. Their advisory standards for pool operations are widely recognized among pools nationally and represent “best practices” among organizations similar to the Fund. The Fund has also received a Certificate of Achievement for Excellence in Financial Reporting from the Governmental Finance Officers Association (GFOA). The GFOA recognizes governmental entities whose comprehensive annual financial reports achieve the highest standards in governmental accounting and financial reporting. The Fund has submitted its comprehensive annual

Congratulations to the TWCA Risk Management Fund on its First 25 Years! 17


FED ERAL D EVELOP M ENTS...

Is the Answer as Bad as the Problem?—

An Opportunity for TWCA to Respond By J. Tom Ray, Lockwood, Andrews, Newnam, Inc., Chair, TWCA Federal Affairs Committee After years of inaction, in the recent months since Texas Water Day, multiple water issues are bubbling away on the front burner in Washington. Three issues are particularly pertinent: 1. The Senate passed its version of the Water Resources Development Act on May 15 th by a vote of 83 to 14. Although not in an initial hurry, the authorizers on the House Transportation and Infrastructure Committee will soon begin drafting their own version of the bill. The Senate measure contains many elements that are critical to Texas water—water supply, flood control, levees, dam safety, operations of multi-purpose projects. 2. The public comment period on Principals and Guidelines closes was extended by 30 days and will

now close in late June, just a few days after the TWCA Galveston Conference. This is the opportunity for TWCA to register concerns over this far-reaching Executive Order that was recently released by the White House Council on Environmental Quality and will impact water resources management of Federal agencies including the Corps of Engineers, the Bureau of Reclamation, USEPA, the Fish and Wildlife Service, and many others. 3. House Appropriators are beginning to draft their FY14 bills. The House will be observing a budget cap of $967 billion which reflects the impact of continued sequesters in the next fiscal year. The Senate will mark up its Appropriations bills under a $1.058 trillion cap which assumes a budget agreement that will remove the need for sequesters in FY14. The House/Senate initial versions are too far apart to ever be reconciled. Water Resources Development Act – S 601 and Prospects for the House Version In the past, WRDA bills, in addition to being passed about every two years, have consisted of a long list of projects that were authorized by Congress for construction. But because of the current earmark ban, Senators Barbara Boxer (D-Calif.) and David Vitter (R-La.), who co-sponsored the Senate’s WRDA, instead included language to automatically authorize projects that have made it through with a “chief’s report,” and have a the recommendation of the assistant secretary of the Army for civil works. This approach avoids the “earmark” problem, but in doing so defers responsibility for project development and funding to the Executive Branch. Ironically, if Congress were to pass a WRDA with this provision, it would revoke its long-held and Constitutionally prescribed role in 18


these decisions. The proper venting of projects through the Congressional committee process would be lost. And, once framed in a WRDA, it will difficult to return Congress to that role. For this reason, T&I Chairman Bill Shuster (R-Pa.) has said he doesn’t like the Senate approach: “I think the way it’s structured, if I understand it correctly, is that going forward, it’ll be the Corps of Engineers and the [White House Office of Management and Budget] that’ll be making the decisions. I don’t want to cede another inch. I haven’t come to the determination if that’s an inch or half an inch, but I think that it’s something that I’m looking very, very closely at.” Other Concerns with S 601…and a few postives. This is a 410-page bill and there are lots of items for various water-interest groups to like and dislike1. There are some positives—including the “streamlining” of environmental review (a provision that the various environmental groups do not support)—but S 601 presents a number of concerns for Texas water managers. The following are summaries of at least some of the major concerns:  The concern with Title I, Water Resource Projects, the loss of Congressional discretion in project development, was discussed earlier. As proposed by T&I Chairman Shuster, this concern would hopefully be countered by a House version that includes Congressionally authorized projects,  Title II, Policy Reforms, although enhancing the non-federal sponsor’s role by allowing more responsibility in project management and funding, there are concerns with Section 2014, Dam optimization, particularly, and with Section 2015, Water Supply. The issue with Section 2014 relates to establish a program to carryout needed “revision or updating of water control plans” to carry out environmental protection and related purposes2. This section can impact the actual operation of reservoir and other Corps projects. Section 2015 has been the subject of a colloquy between Senators Boxer and Vitter3, which may clarify issues with respect to interpretation of Corps’ authority under the Water Supply Act of 1958 by restricting its application to the issues between Georgia, Alabama,

and Florida, but other experts at TWCA need to weigh-in.

 Also within Title II, Section 2033 is positive—at least, from a project development perspective. This Section expands requirements in WRDA 2007 to accelerate projects and feasibility studies that require an EIS. It defines an “environmental review process” and sets requirements for federal, state and local participation (this may have the negative of increasing the time required). It require the Secretary of the Army to Requires the Secretary to: (1) issue guidance on programmatic approaches to environmental review, (2) establish a program to measure and report on progress made toward improving and expediting the planning and environmental review process, and (3) survey the use of categorical exclusions under NEPA in water resources projects since 2005 and publish a review of such survey.  Title VI, Levee Safety, This establishes a levee safety program, including provisions to develop guidelines, conduct a one-time inventory and assessment, and create a levee safety board. Many TWCA members and other with levee operations are concerned with the broad and over-lapping programs that will likely be far too complex and bureaucratic. The following programs are established under this Title:  Section 6004 – establishes a levee safety program; 19

Continued on page 20


Federal Developments

Our Sincere Thanks to The 2013 TWCA MID YEAR CONFERENCE SPONSORS

Continued from page 19

PLATINUM

Klotz Associates, Inc. Lloyd Gosselink Rochelle & Townsend P. C. Halff Associates Inc. Tarrant Regional Water District J. Stowe & Co., LLC Alan Plummer Associates, Inc. McCall, Parkhurst & Horton L.L.P. AECOM Freese and Nichols, Inc.

 Section 6005 – establishes a levee safety advisory board; and,  Section 6006 – calls for an inventory and inspection of all levees in the U.S.  Title X establishes the “Water Infrastructure Finance and Innovation Act,” or WIFIA, modeled after the TIFIA program applicable to transportation projects, seeks to attract new capital investments for infrastructure and leverage private investments. This title sets forth the requirements to obtain a secured loan or loan guarantee, the entities eligible to participate, as well as the types of projects eligible for assistance. What about the House WRDA? Resolving concerns with S 601 is bringing considerable attention to the efforts of Chairman Shuster to develop a House version. As we heard at Texas Water Day this past February from the Staff Director of the Water Resources and Environment Subcommittee, John Anderson, the Chairman is committed to fight the political battles to achieve a WRDA. It will be a difficult battle due to the earmark ban and the political consequences accruing from allowing Congress to support individual water projects. At the June 5th Hearing on Water Resources Infrastructure Projects, Chairman Shuster reiterated his goals for a House WRDA: “Congress has only enacted two WRDA laws in the last 14 Continued on page 26

GOLD

Sabine River Authority of Texas LBG0Guyton Associates First Southwest Company RPS Espey Brown & Gay Engineers, Inc. Ron Lewis & Associates HillCo Partners Carroll & Blackman, Inc. Booth, Ahrens & Werkenthin, P. C.

SILVER

Robert J. Brandes Consulting Gulf Coast Waste Disposal Authority San Antonion Water System San Jacinto River Authority

BRONZE

Law Office of Timothy L. Brown Law Office of Lynn Jarvis

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On The Threshold of Securing the State’s Water Future As the 83rd Texas Legislature edged closer to adjournment, the prospect of obtaining critical funding, once and for all, to secure the state’s water future, was still uncertain. Questions about the appropriate balance of funding between water and education, and whether and how water funding issues should be presented to the voters, still were unresolved. Ultimately, those questions were addressed through the passage of HB-4, HB-1025, and SJR-1, and a special session on water funding was avoided. HB-4, authored by State Representative Allan Ritter and sponsored by State Senator Troy Fraser, creates a water implementation fund to be administered by a restructured Texas Water Development Board (TWDB) to provide low interest loans for projects in the State Water Plan. HB-1025, by Representative Jim Pitts and Senator Tommy Williams, is a supplemental appropriations bill that transfers $2 billion out of the Economic Stabilization fund (the Rainy Day Fund) to the water implementation fund contingent upon voter approval of SJR-1. SJR-1 is a joint resolution by Senator Williams and Representative Pitts that, if approved by the voters in November, will amend the Texas Constitution to create funding mechanisms in the state treasury but outside the general revenue fund that will allow the TWDB to provide the financial assistance prescribed in HB-4. “Chairmen Ritter and Fraser deserve special

recognition for their visionary efforts”, commented Leroy Goodson, TWCA’s General Manager. “Chairman Ritter was correct when he observed that it is absolutely critical to secure viable, long-term funding for water infrastructure – which is undeniably the lifeblood of the sustained economic growth and development of our state,” Goodson continued. “We must not squander this exceptional opportunity to leave such a critical legacy for future Texans. Our economy depends on it…our municipalities depend on it…and when you get right down to it, our quality of life depends on it.” Governor Rick Perry, Lt. Governor David Dewhurst, and Speaker Joe Straus also worked diligently to find solutions to the issues that might have otherwise derailed the water funding plan. The 2012 State Water Plan, prepared by the Texas Water Development Board, recommends 562

“...the long-term stability and growth of the Texas economy depend on ample water.” 21

Continued on page 22


Securing our water future

2. S  tate funding can significantly reduce the total cost of financing regional and local projects. What very well could provide a viable template for this upcoming election is the process through which a proposed constitutional amendment (Proposition 2) gained voter approval during the November 8, 2011 general election. This amendment allows the TWDB to authorize bonds on an ongoing basis so long as the dollar amount of bonds outstanding at any one time does not exceed $6 billion. As with Prop 2, there are many and varied stakeholders who are committed to assuring that SJR 1 is passed. Without voter approval the new funding mechanisms will not exist and the $2 billion from the Rainy Day Fund will not be available for use. There is much that can and should be done to educate the voters on this critical election. TWCA will be working with its members and others to ensure success. For additional and ongoing information about this crucial effort, please visit www.twca.org. You can also obtain more details about the water funding legislation and other water legislation passed by the 83rd Texas legislature, in a comprehensive summary of water legislation passed on our website.  – Dean Robbins

Continued from page 21 unique water supply projects to meet the State’s projected needs for additional water supplies over the next 50 years. If implemented, these projects would result in an additional 9 million acre-feet per year by 2060 to meet the anticipated 8.3 million acre-feet shortfall. Although the TWDB has provided financial assistance for water projects for decades, Texas previously has not had a comprehensive strategy for funding the State Water Plan. It’s our turn now… Just ahead is the critical juncture where policy and people converge…where voters must take ownership of future water supply issues by confirming this landmark legislation at the ballot box in November. What citizens do with this unique opportunity will depend in large measure upon what water leaders do to promote understanding that 1. T  he long-term stability and growth of the Texas economy depend on the provision of ample water for household, commercial, industrial and agricultural use; and

Want to know more about legislation passed during the 83rd Legislative Session? Visit online: www.twca.org 22


Another Hurricane Season is on the Horizon

On April 10, 2013 the tropical storm forecast team at Colorado State University issued its “Extended Range Forecast of Atlantic Seasonal Hurricane Activity and Landfall Strike Probability for 2013.� The forecast has been fairly accurate over the years and this year highlights some significant differences in the tropical environment that could pose increased risk for the Texas Gulf Coast. In general, Colorado State is forecasting a very active season with eighteen named storms including nine hurricanes with four major storms of category 3 or higher intensity. They also predict the likelihood of a major storm striking the U.S. coast as 72% probability for the entire U.S. coast (average for the last century is 52%) 48% probability for the East Coast including the Florida Peninsula (average for the last century is 31%) 47% probability of a strike along the Gulf Coast from the Florida Panhandle to Brownsville, Texas (average for the last century is 30%). One reason for the prediction of greater than normal tropical activity is the neutral status of the Pacific El Nino/La Nina pattern. Presence of an El Nino event which warms the Pacific equatorial waters reduces the strength and frequency of tropical activity in the Atlantic Basin. The neutral pattern in the Pacific Ocean reduces wind shear which is an enemy of tropical storm formation and intensification. Another factor CSU cites is a warmer than normal tropical Atlantic Ocean in recent months. The presence of warmer waters in the tropical Atlantic provides more potential energy for tropical cyclone development. Regardless of the predictions, every district or authority near the coast is preparing fully just as they do every year. They know that it only takes one storm to come ashore and wreak havoc on its ability to provide the vital services its community needs. Within the last ten years the Texas coast has experienced Rita, Humberto, Gustav, Dolly and Ike as well as glancing blows from other hurricanes and tropical storms. Reprinted with permission, TWCA Risk Advisor Newsletter, Spring, 2013

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MARCH 2013 TWCA ANNUAL MEETING, AUSTIN

(Left to right) Bill West, Guadalupe-Blanco River Authority; Jerry Clark, General Manager, Sabine River Authority; Commissioner Todd Staples, TX Dept. of Agriculture; and Tom Ray, Lockwood, Andrews & Newnam.

Dean Robbins with Rep. Allan Ritter, Chair of the House Committee on Natural Resources, and Elizabeth (“Liz”) Fazio, Committee Director of the House Committee on Natural Resources.

Bob Rose, LCRA Meteorologist, and Leroy Goodson, TWCA General Manager.

Dean Robbins, TWCA with Sen.Kirk Watson.

“We certainly appreciate that so many outstanding leaders are willing to take time to share their expertise and information at our conferences. In addition, we are grateful to our members who generously sponsor various activities during our meetings!” Leroy Goodson, TWCA General Manager

Thanks to breakfast sponsor Ron Lemons , Freese & Nichols.

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Luana Buckner was presented with a handsome pair of boots as a momento of her term as TWCA president by Leroy Goodson, TWCA General Manager.

At the Awards Dinner -- Phil Ford, TWCA president-elect; Luana Buckner, TWCA president; and Rep. Doug Miller..

Rep, Doug Miller and his wife Anne being congratulated by Luana Buckner.

Special Awards -- (l to r) Dean Robbins, TWCA, recipient of the President’s Award; Representative Doug Miller, Convention Dedication; and Carlos Rubinstein, TCEQ,President’s Award recipient.

(Left to right) Jerry Clark, General Manager, Sabine River Authority of Texas; Commissioner Todd Staples, TX Dept. of Agriculture;and J.D. Jacobs, Board of Directors, Sabine River Authority of Texas and his wife, Ollie.

Leroy Goodson, TWCA, Texas Parks and Wildlife Department Executive Director Carter Smith, and Dean Robbins, TWCA.

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Federal Developments Continued from page 20

years. And we have many goals we want to accomplish in WRDA, but one of the most important is to get WRDAs back to a two-year cycle to ensure Congress has a fundamental role in the development of the Corps — Corps of Engineers’ projects and in the oversight of the agency. Again, that is absolutely, for me, critical that we get back on a two- year process. There’s no reason we can’t as long as we all dedicate ourselves to working towards that goal.” The WRDA process in the House will be critical to TWCA and Texas water. If significant changes to the Senate version cannot be achieved, the question will be whether that WRDA can be supported. If a House version does succeed, it will do only do so with the support of many Members of the House, including the Texas Delegation. Principles, Requirements & Interagency Guidelines – A Flawed Process and Outcome In March 2013, the Counsel on Environmental Quality (CEQ) released the updated Principles and Guidelines (P&G) that included the final set of Principles and Requirements. CEQ stated that “…incorporating extensive public comment, the modernized P&G will help accelerate project approvals, reduce costs, and support water infrastructure projects with the greatest economic and community benefits. They will also allow agencies to better consider the full range of long-term economic benefits of protecting communities against future storm damage, promoting recreational opportunities that fuel local business, and supporting other locally driven priorities.” Many of the public comments submitted initially, including those from TWCA and most water associations, disputed those claims. The “Interagency Guidelines” provided the only remaining opportunity for additional comment. The Guidelines are intended to determine the applicability of the Principles & Requirements to federal agencies’ water resource investments. Commenting on the Guidelines is a means of

reiterating the issues that were of concern with the intitial draft and recently released P&G version. For this purpose, an excellent comment letter was prepared under the direction of the Family Farm Alliance. It was co-signed by TWCA, NWRA, the Association of California Water Agencies, WESTCAS, and the Oregon Water Resources Congress. The letter 4 laid out a issues to support the following position: “…we believe the Draft Guidelines go far beyond the intent of Water Resources Development ACT (WRDA) 2007 passed by Congress. We believe that overlaying the new, subjectively derived set of values reflected in the Draft Guidelines on virtually every federal action that has a nexus to water goes beyond the intent of Congress and could have a crippling effect on Western water management activities at all levels and for all uses. We also have questions about how the various agencies involved with water will mesh implementation of individual agency guidelines on projects that involve more than one federal agency.” The TWCA Federal Affairs Committee will consider whether additional, more Texas specific comments are warranted. In addition, there will be yet another round of comment periods as each of the federal agencies must adopt “agency guidelines” that are made available for public comment. 26


What’s Wrong with This Picture? FY 2014 Appropriations, Sequestration, and Reality The Senate passed its version of t h e Wa t e r R e s o u r c e s D e v e l o p m e n t A c t reauthorization, which addresses the breadth of our national water resources needs and calls for billions in new water related spending. In contrast, last month the House Appropriators began preparing their FY14 appropriation bills. As we reported previously, the House will at least initially hold to a $967 billion budget cap which assumes that the sequester will stay in place for the upcoming fiscal year. The Senate is taking an opposite track which assumes that there will be a broad budget agreement between the two Houses of Congress and the White House. As a result, they will mark up their bills based on a $1.058 trillion budget cap which is $91 billion more than the House version. The impact of the House budget cap is much worse than is apparent. $625 billion out of the $967 billion budget cap is allocated to just three Appropriations bills including Defense, Military Constructions/Veterans Affairs, and Homeland Security. That leaves $325 billion for the rest of government. And that means for everything including water resources. Although individual funding line items will differ, this reflects an overall 17% cut for just about everything that is not defense, veterans, or homeland security related. House Appropriators admit that there is no way that the $967 billion figure they are using will result in completed bills since Members will not accept these kinds of draconian cuts. There is even talk that House Appropriators may mark up a second set of bills which provide higher funding levels. At meetings with House Appropriations staff, we were told that at present, and without a “grand budget agreement,” there seems to be no way out of the current mess. 

Tom Ray, of Lockwood, Andrews & Newnam, has followed national water issues for more than 20 years. He can be reached at j-tray@lan-inc.com.

National Wildlife Federation and the Nature Conservancy have included “modernizing operations of existing projects…to require the Corps to evaluate and update operations plans…” as a major effort for any WRDA in 2013. This appears at least in part to be accomplished in Section 2014. 3 Boxer: “Senator. That’s correct. And as this new language clearly states, ``this subsection does not alter existing rights or obligations under law.’’ So to reiterate, it is not the intention of Section 2015 to alter the Corps’ existing legal authority to reallocate storage, to express any view on whether current or projected future levels of storage for water supply exceed the Corps’ existing legal authority, or to prohibit or interfere with the Corps’ ongoing efforts to update its water control plans and manuals for the ACF and ACT Basins.” 4 A copy of this letter can be obtained from TWCA and will be reviewed at the June 2013 Federal Affairs Committee meeting in Galveston.

A summary of S 601 provisions pertinent to Texas water and TWCA is prepared for review at the Federal Affairs Committee meeting in conjunction with the June 2013 Galveston Conference. 2 It is clear that major environmental groups such as the 1

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Red River

IN MEMORIAM Carson Harper Hoge of Waco, born Aug. 2, 1923, in Throckmorton, Texas,passed away Monday, April 22, 2013. He served in the U.S. Navy from 1941 to 1945 as a Chief Radar man on the U.S.S. Waters in the South Pacific and participated in the recapture of the Solomon Islands from the Japanese. He was selected to return to the US in 1943 to continue his education and was commissioned as an officer. He studied at University of Texas, graduated with a degree in civil engineering, and met Bonnie Jean Dorroh who became his wife in 1945. After being honorably discharge from the Navy in 9146, Carson spent several years in the Lower Rio Grande Valley and Midland working as a consultant for engineering firms to build several important canal systems and gas pipelines across Harlingen and cross country in Mississippi, Alabama and Virginia. In 1958, Forrest and Cotton engineering firm sent Carson and his family to Waco to provide services to the City of Waco, working on the largest public works project that it had undertaken at that time, which included the 17th Street railroad overpass and the Clay Avenue Relief Storm Sewer. In 1962, Carson was named Public Works Director of the City of Waco. Among other lasting accomplishments during his tenure with the City, Carson planned and directed a major rehabilitation of the Suspension Bridge, initiated mechanized solid waste processing, worked with the U.S. Army Corps of Engineers to plan and complete Lake Shore Drive and with the Texas Highway Department to plan and complete IH 35 through Waco, and planned and directed development of Herring Avenue, Cobbs Drive, and other major elements of Waco’s arterial system. In 1967, Carson accepted the position of Assistant General Manager of the Brazos River Authority (BRA). He was promoted to General Manager in 1981 and retired in 1991. During his tenure with the BRA, they completed Lake Limestone, partnered with the U.S. Army Corps of Engineers to build Lake Aquilla, raise the level of Lake Waco, and rebuild Possum Kingdom Dam. The stabilizing of Possum Kingdom Dam was named one of the five outstanding engineering projects in 1991 by the National Society of Professional Engineers. Carson served as Advisory Director on the Board of Freese and Nichols Consulting Engineers in Ft. Worth from 1991 to 1994. Throughout his years of service, he also served as board member and president of the Central Texas UT Ex-Students Association, the Central Texas Chapter of the Texas Society of Professional Engineers, the Heart of Texas Chapter of the American Red Cross, the Texas Water Conservation Association, and the Rapoport Academy. He was named Engineer of the Year by the Central Texas Chapter of the Texas Society of Professional Engineers, he received the Clara Barton Award from the American Red Cross, and was made a life member of the National Water Resources Association. Carson is survived by his wife of 67 years, Bonnie Jean; four adult children; numerous grandchildren and great-grandchildren. He is also survived by a brother-in-law, a sister-in-law, as well as many nieces, nephews and cousins who gave great meaning and joy to his life. ď “

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TWCA’s Confluence Newsletter Gratefully Acknowledges The 2013 Sponsors Who Make This Communication Among Members Possible PLATINUM

SILVER

AECOM Angelina & Neches River Authority Bickerstaff Heath Delgado Acosta LLP Brown & Gay Engineers, Inc. Diamond Plastics Corporation Freese and Nicols, Inc. GDS Associates, Inc. HDR Engineering, Inc. Layne Christensen Company Lloyd Gosselink Rochelle & Townsend, P. C. Lower Colorado River Authority MWH Americas, Inc. North Texas Municipal Water District SAIC Energy, Environment & Infrastructure LLC Tarrant Regional Water District Trinity River Authority of Texas

Barton Springs/Edwards Aquifer Conservation District Cameron County Drainage District #1 Canadian River Municipal Water Authority Evergreen Underground Water Conservation District Franklin County Water District J. Stowe & Co., LLC K. Friese & Associates, Inc. Kimley-Horn and Associates Lone Star Groundwater Conservation District

BRONZE Bell Engineering & Consulting, Inc. Brazoria County Groundwater Conservation District Klotz Associates, Inc. Plum Creek Conservation District Steve Walden Consulting Texas Water Foundation, Inc.

GOLD Alan Plummer Associates, Inc. Brazoria Drainage District No. 4 Brazos River Authority Chambers-Liberty Counties Navigation District Colorado River Municipal Water District Guadalupe-Blanco River Authority Gulf Coast Waste Disposal Authority Harlingen Irrigation District Cameron County #1 Harris-Galveston Subsidence District Jefferson County Drainage District #6 Lavaca-Navidad River Authority Lower Neches Valley Authority Metropolitan Water Company, L.P. Northeast Texas Municipal Water District North Harris County Regional Water Authority Nueces River Authority Post Oak Savannah Groundwater Conservation District Sabine River Authority of Texas San Jacinto River Authority Titus County Fresh Water Supply District #1 TWCA Risk Management Fund Upper Neches River Municipal Water Authority

NEW TWCA MEMBERS Baker Botts LLP Contact: Molly Cagle Baker Botts LLP 98 San Jacinto Blvd., Suite 1500 Austin, TX 78701-4078 molly.cagle@bakerbotts.com Andrews Kurth LLP Contact: Bob Collie 600 Travis, Suite 4200 Houston, TX 77002 bobcollie@andrewskurth.com Brad Smith Texas State University 601 University Drive San Marcos, TX 78666 bs09@txstate.edu

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EDITORIAL SERVICES... Barbara Payne 281-893-2099 barbara@paynecom.com

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TWCA Confluence Newsletter June 2013