Full document / COSOC-W-86-002 - the National Sea Grant Library

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Freshwater inflow into bays and estuaries remains a low priority use
of water in Texas. Nevertheless, there are a number of approaches to
estuarine protection which could be pursued under the current law.
Minor changes in the law could make protection easier, and major
changes could facilitate it still further. Little scholarly research
has been dons on legal approaches to maintaining freshwater inflows.
However, lawyers and conservationists throughout the U.S. have
identified a number of legal strategies which are applicable to a
related water allocation problem - the preservation of minimum stream
flows. As more and more surface water is diverted or stored in
impoundments, the amount of water remaining in downstream river
segments is sometimes insufficient to support fish and wildlife or
water-based recreation, or to dilute pollutants. Many of the
strategies which have been used to combat the instream flow problem
could also be used to maintain freshwater inflows to estuaries.
The strategies to protect estuarine inflows can be classified into
three groups: (1) direct acquisition of water rights, (2)
administrative approaches such as reservation, conditional permits,
and redefined water use priorities, and (3) application of the public
trust doctrine.
Texas Surface Water Law
Texas is one of several states which recognizes both riparian and
appropriative rights to surface water. Full riparian rights,
including the right to irrigate, apply only to. lands which (1) were
originally granted by the Republic or State of Texas between 1840 and
1895, and (2) have retained their riparian classification since the
original grant was issued. The Hater Rights Adjudication Act (Tex.
Laws 1967, ch. 45) required riparians to register their rights and
limited their claims to the maximum amount put to beneficial use in
any year between 1963 and 1967. In this way, riparian rights have
been absorbed into the appropriative system, with priorities based on
the dates of the original land grants. The adjudication process,
which followed the 1967 act, allocated Texas surface water on the
basis of all known water rights claims. That process is now basically
complete and the state of Texas has, for the first time, a unified
system of water rights.
Rights to state water under the prior appropriation system arc
allocated by the Texas Water Commission. Permits can be issued only
for beneficial uses, and the state water code includes a list of water
use preferences in which domestic and municipal purposes are rated
highest, followed by industrial, irrigation, mining, hydroelectric
power, navigation, recreation and pleasure, and other beneficial uses
(TEX. WATER CODE ANN. 511.024). Texas follows the other requirements
of tho prior appropriation system, namely the "first in time" rule and
the "non-use results in loss" rule.
Direct Acquisition
The simplest means of protecting freshwater inflows to estuaries is to
appropriate water for that purpose. This approach has the advantage
of fitting neatly into the existing regulatory system, with all its
inherent safeguards for existing appropriators. The oajor
disadvantage in Texas is the lack of unappropriated water. Permits