Timothy Riley

March 9, 2007

With only one vote in opposition, House Bill 3 (HB3) was engrossed with the support of 142 members of the Texas House of Representatives on March 1, 2007. HB3 is a comprehensive water resource management initiative crafted to resolve years of debate, court battles, and policy skirmishes between the Texas Commission on Environmental Quality (TCEQ), large water suppliers, municipalities, environmental activists, coastal fishing interests, and irrigation-dependent farmers regarding the protection of instream flows and freshwater inflows into Gulf of Mexico bays and estuaries. State Representative Robert Puente (D-San Antonio), Chair of the powerful House Natural Resources Committee, lead the bipartisan charge for HB3's passage along with cosponsor Rep. Harvey Hilderbran (R-Kerrville). HB3 heads now to the Senate where it will confront Senator Kip Averitt's (R-Waco) and Lieutenant Governor David Dewhurst's (R) recently introduced omnibus water bill (SB3) containing a similar instream flows and freshwater inflows provision.

Existing Texas law requires the TCEQ to consider the biological needs of the state's economically important and ecologically precious bays and estuaries when granting permits for the use surface water resources. Although HB3 continues to prevent the issuance of water permits specifically for environmental protection, it does institute a new basin-by-basin initiative to develop scientific standards for identifying and protecting instream flows and freshwater inflows necessary to sustain coastal ecosystems and dependent local industries (e.g., fishing, farming, and recreation). Specifically, HB3 would create an Environmental Flows Advisory Group, comprising of members appointed by the Governor, Senate, and House, along with members of the TCEQ, Texas Water Development Board, and Texas Parks & Wildlife Commission.

The Group's primary mission is to develop "environmental flow standards" that would be used by TCEQ when considering new water rights applications and, if available in a particular water basin, establishing what amounts of unappropriated waters should be reserved for environmental protection. The Group would be supported by a committee of scientific advisors who will serve as "an objective scientific body to advise and make recommendations . . . on issues relating to the science of environmental flow protection." The fiscal note accompanying the legislation projects that HB3 will cost Texas taxpayers approximately $8.5 million over the next five years.

While haled as a positive and aggressive step forward towards addressing a problem that has consumed environmental activists, farmers, agencies, and municipalities for the last two legislative sessions, serious concerns linger. Foremost upon the minds of many is the lack of immediate action, since HB3 purports to only create a "process" to implement "environmental flow standards" at some future date. Meanwhile, the TCEQ continues issuing water rights permits in many river basins that are already over-appropriated. On the other hand, HB3 is silent on conservation and the construction of new water supply reservoirs—issues both addressed in the competing Senate Bill sponsored by Sen. Averitt and endorsed by the Lt. Governor. Finally, north Texas communities, like the 3 million people strong City of Dallas, are concerned that HB3 may disadvantage upstream water users by requiring more water to be sent to the coast. With several months left in the legislative season, the House's passage of HB3 seems only to serve as the catalyst sparking an even larger water use debate in the Senate with no certainty that any instream flow bill will pass before sine die.

To view the engrossed version of HB3, visit:

H.B. 3, 80th Leg., Reg. Sess. (Tex. 2007) (as passed by House, Mar. 1, 2007), available at http://www.capitol.state.tx.us/tlodocs/80R/billtext/pdf/HB00003E.pdf.

To view the associated Fiscal Note, visit:

Legislative Budget Board, Fiscal Note, H.B. 3, 80th Leg., Reg. Sess. (Tex. 2007), available at http://www.capitol.state.tx.us/tlodocs/80R/fiscalnotes/pdf/HB00003H.pdf.

For news stories related to HB3, visit:

Emily Ramshaw, N. Texas Sizes Up Water Plan, Dallas Morning News, Feb. 23, 2007, http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/legislature/stories/DN-water_23tex.ART.State.Edition1.217408d.html.

Emily Ramshaw, House Endorses 1st of Major Water Bills: Measure Ensures Downriver Input, But N. Texas Legislators Wary, Dallas Morning News, Mar. 1, 2007, http://www.dallasnews.com/sharedcontent/dws/news/politics/local/stories/DN-water_01tex.ART.State.Edition1.44ef52b.html.

Jerry Needham, Texas House Approves Bill to Protect Water Levels of Rivers and Bays, San Antonio Express-News, Mar. 1, 2007, http://www.mysanantonio.com/news/metro/stories/MYSA030107.10A.river_flows.3ba197f.html.