this is a simplistic way to view the resource since the river is extremely dynamic and varies from flood to drought, and from year to year. The flow varies, so planners, to be on the safe side, rely on an estimate of the critical period, i.e. those years of minimal flow. Normally the critical period would extend only through the drought years, but when the Department of Water Resources made their determination for the Colorado, they selected the 25-year period from 1941-65. The severe drought years of the 1950’s are somewhat diluted by this approach, and it gives an appearance of critical-period water availability that doesn’t jive with experience and recent memory. When the Department of Water Resources considered the permit application for the Stacy Reservoir, Jack Chitwood of the Water Use section of the department prepared a water-availability computer model for available, unappropriated water, and reported only 3200 acre-feet available, substantially less than the 500,000 acre-feet necessary to fill the reservoir, and still inadequate to supply the 120,000 acre-feet projected annual yield from the reservoir. The LCRA, the City of Austin, the Lake Travis Improvement Association, with support from the Lakeside and Garwood irrigation companies, took the Department to task and appealed its decision, resulting in the longest and costliest water rights suit in Texas history. In September, 1982, the Texas Court of Appeals Third District denied a motion for a rehearing on its 2-1 decision to sustain the permit, thus setting the stage for a motion to the Supreme Court of Texas. The lawsuit is one of the most significant to hit the courts in several years, and though it seeks to interpret a rather narrow point of law, it has very broad implications. The CRMWD invoked the Wagstaff Act in its initial permit filing, which grants municipal water users priority over other users even though the others may have first right, and section Civil Statutes, which even more specifically grants municipal users priority over hydroelectric use. The latter provision of law seemed tailored to CRMWD’s needs. LCRA has held permits for hydroelectric generation which it hasn’t fully used, and the CRMWD could, through the albeit suspect projections of the Texas Water Plan, claim priority for its municipal customers. Normally, the Texas Department of Water Resources seeks its staff recommendations and might be expected to heed them. In this case, Jack Chitwood’s study became the Chitwood Memorandum, which LCRA rather than the TDWR entered as an exhibit into the Commission proceedings. A deposition from Chitwood was never entered into the record, and its absence is noted in the file on the proceedings. Charles Beckman, head of the Central Records Unit, on finding them not with the material, entered the following comment: “I am advised that these exhibits were not presented with the depositions to the Commission.” The point of appeal that the 3rd District Court of Appeals heard and overruled concerned the definition of appropriated vs. unappropriated use, stating that water could not be considered to be appropriated if it were unused by the appropriator, in this case referring specifically to the water reserved for hydroelectric use by the LCRA. The majority opinion holds that, “In summary, the In times of drought . . . the upper Colorado River Basin cannot depend on the yield of Stacy Reservoir. fact that all the certified filings and permits may specify a quantity of water which, when totalled, exceeds the quantity of water in the Colorado River is of no legal consequence in this case, for the only relevant inquiry under the appropriative rights doctrine and the statutes pertaining to it is the total quantity of water to which appropriative rights have been perfected by 3 years’ beneficial use.” The court asks rhetorically, and a little ironically, “Did the legislature intend to create by its statutes pertaining to such certified filings and permits a class of property wherein a few might obtain a valuable right from the state at a nominal fee, not for their necessities but to enable them to speculate therein for future profit?” It is still a matter of debate, and a point of contradiction within Texas Water Law, where the statutes on the one hand require beneficial use of appropriated water, but also require cancellation of permits before any water can be reappropriated. It is, of course, now a matter for the Texas Supreme Court to decide. The planning office of the TDWR produced a new study shortly before the CRMWD filed for their permit, known colloquially as LP-60, or the Present and Future Surface-Water Availability in the Colorado River Basin, Texas, which no more resembles an unbiased account than a campaign slogan for Governor Clements. It is this report that recom mends a “critical period” analysis from 1941-65. Further, LP-60 states very clearly and conveniently that the Stacy Reservoir is projected only for municipal use, though the Texas Water Plan had proposed it as a multipurpose reservoir that included an additional 25,000 acrefeet for’ 4-750 megawatt coal-fired steam-electric generators, as well as industrial and possible irrigation uses. LP-60 forgets itself occasionally, however, and multiple-use references appear unedited in the document, peering through the thin and too hurried disguise. Occasionally the report refers to the power generation and industrial uses of the reservoir. For its part, Texas Utilities Services, liminary contracts with the CRMWD to build the steampowered generator, has abandoned any plans for further involvement with the project. Dick Ramsey, a spokesman for the company, indicated that “my understanding is that Stacy would be a multiple-use reservoir and that in addition to their use there would be ample water for contract use and that they would be seeking other customers.” Ramsey suppposed that Texas Utilities had only long-term plans for the generators, but after consultation with TUSI’s Chief Engineer denied any further involvement with Stacy: “We’re not involved; it doesn’t even look like a long-term option. We have withdrawn from the project.” WITHOUT THAT justification for its existence, and with suspect population projections, one might question the validity of the project especially if industrial uses are deducted from the projection \(these Further, the permit only grants water rights that respect the senior rights of the downstream users. LP-60 ignores this as indicated in graphs that dramatically illustrate the “need” for Stacy but that represents the subsequent downstream shortage as much less significant an issue, though it is dutifully displayed. But in times of drought, the bottom line is that the upper Colorado River Basin cannot depend on the yield of Stacy Reservoir. Moreover, evaporation rates of 55″ per year would result in an annual loss of 84,000 acre-feet from the 19,200acre surface area of the reservoir, not a drop of which is permitted or accounted for by the Texas Department of Water Resources. Then there is the question of estuarine needs. The Department now estimates that 2.4 million acre-feet is required for the maintenance of current levels of finfish, shellfish, and crab production in the THE TEXAS OBSERVER 17
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