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FBR President's Message, June 2015

Status of BRA's Application for the Systems Operation Permit (SYSOP) — June 2015

The formal hearing on the SYSOP application was restarted on February 17, and lasted for 10 days.

All parties have filed their final written arguments and responses, probably totaling 500 pages of arguments.  The Judges propose to have their recommendation by July 17, 2015.  Then, parties will file any exceptions to the recommendations and responses to others exceptions.  The three Commissioners of TCEQ are likely to make their decision by mid-fall.

The hearing in February focused on two issues: 1) the adequacy of BRA's water management plan (WMP), and 2) the requirements of the new Senate Bill 3 environmental flow standards (EFS).

WMP:  When the three Commissioners voted in early 2012 to give BRA a second chance to prove its case, it directed BRA to prepare a WMP detailing how BRA would operate and to whom BRA would sell water.  This plan was supposed to provide what the Judges said was missing from the original application. That failure to present the full picture was why the Judges issued their recommendation for denial or, in the alternative, a second chance for BRA to meet its burden of proof. 

FBR's expert Joe Trungale testified that the application with the WMP had many of the same deficiencies as the original application.  That position was supported by Dow, National Wildlife Federation and the Granbury Coalition.  

As a result, BRA has cut back its proposed appropriation significantly, but not enough.  It is still asking for most of the water in the Brazos River Basin that is not already appropriated in other water rights.  BRA is looking for permit terms that would give it almost unlimited discretion on how, when and where it diverts water.  It still has not identified real needs for all the water it wants.

It is difficult to guess what the Judges will recommend, but given that the Commissioners did not deny the permit application originally, the Judges may think the Commissioners want to issue a permit.  The issue may be for what amount of water.

EFS: The hearing also focused on the new Senate Bill 3 environmental flows standards which were adopted by TCEQ in 2014.  BRA was required to model its proposed diversions from the lakes and river and its proposals for refiling lakes with the new standards in effect.  The stated goal of Senate Bill 3 is to use the unappropriated water that is available in a way that helps protect flows in the rivers and streams and to bays and estuaries.

Thus, the limit on the new standards is that they apply only to the additional water that BRA is seeking in the SYSOP permit. Thus, the problems with the current impacts from water rights, existing diversions and reservoir refilling cannot be fixed with the EFS.   The standards are only an attempt to limit the harm from new water rights.

Whether the environmental flow standards will even do that, is very unclear.  The Executive Director and staff of TCEQ have taken a very narrow view of the standards, limiting the benefits they could provide.  National Wildlife Federation is joining FBR in arguing for a very different approach, one that would provide much greater benefits.  Dow and the Lake Granbury Coalition are also siding with FBR and NWF.  BRA is, of course, taking the ED's position.  

And this case will be the first time any Judges or the Commissioners have considered how the Senate Bill 3 standards should be applied.  This case will determine how well Senate Bill 3 works across Texas.

Ed Lowe, President



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