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To Build a Lake

A thumbnail sketch of the lengthy process involved in getting a new reservoir approved.

By Tom Harvey

The process of siting, permitting, mitigating, financing and building a dam and reservoir is a complicated affair that can take many years.

The first step involves the Texas regional water planning process, where planners quantify future water needs and consider the menu of “water management strategies” for meeting them. Sixteen regional water planning groups representing river basin stakeholders across the state must first consider and recommend reservoir sites. Their regional recommendations then roll up into the state water plan, which is updated every five years, most recently in late 2006.

The next step is to secure legal rights to use the water you plan to impound. This means getting a water rights permit from the Texas Commission on Environ-mental Quality, usually done prior to seeking other authorizations. TCEQ must evaluate the availability of remaining unappropriated water rights in the river basin to assure there is still water for the new reservoir. They must also evaluate the ecological impacts, especially to aquatic habitats, and especially for reservoirs larger than 5,000 acre-feet. TCEQ must also certify water quality and evaluate dam safety.

With your water rights permit in hand, you’ll proceed to the U.S. Army Corps of Engineers, where you can plan to hunker down for many months of detailed review.

If the site is within or affects what the Corps considers “navigable waters of the U.S.,” authorization under Section 9 of the federal Rivers and Harbors Act is required for construction of a dam or dike there. You’ll also need a Section 404 permit under the federal Clean Water Act for “discharge of dredged or fill into waters of the U.S.” for that part of the project that requires filling in streams and wetlands (basically the dam construction). The Corps usually addresses all these concerns in a single permit.

Structures that may impact the coastal management zone must be reviewed by the Coastal Coordination Council made up of state agencies, gubernatorial appointees and others. The federal National Environmental Policy Act requires identification and consideration of all impacts to the “human environment.” The federal Fish and Wildlife Coordination Act requires consideration of, and mitigation for, impacts to fish and wildlife. Both are incorporated into Corps regulations. Other federal and state laws may apply as well.

The project sponsor (usually a city, river authority or water district) must characterize impacts to all “public interest factors” the Corps must evaluate. These include fish and wildlife and their habitats (all that will be impacted, not just those within the river and associated streams or wetlands), as well as water quality, economics, flood control, cultural resources, aesthetics, safety, agriculture and numerous other factors.

Under what is known as the Section 404(b)(1) Guidelines, the Corps may only issue a permit for the least environmentally damaging practicable alternative. The project must also comply with other technical elements of the guidelines, including no significant degradation of waters of the country and inclusion of all appropriate and practicable mitigation.

Mitigation is defined by the U.S. Environmental Protection Agency as a sequential process involving, in order: (1) “avoidance” of unnecessary impacts, (2) “minimization” of impacts not essential to accomplishing the project, and (3) “compensatory mitigation” to replace unavoidable and non-restorable adverse impacts to fish and wildlife and their habitats.

Compensatory mitigation typically involves acquiring, restoring and/or enhancing and managing other land so that its natural ecological functions are enough to replace the lost functions and values of the impacted reservoir site. This often requires acquiring larger areas than the impacted site and practicing restoration, enhancement and/or management so that ultimate conditions are better at the mitigation site than before management began there. Only the difference between the unmanaged condition and the managed condition can be credited as “compensatory mitigation.” Corps review for larger projects, such as reservoirs, requires public notice to those who request to be on the review list. This includes review by federal and state resource agencies, whose comments carry significant weight in the permitting process, especially for water quality and fish and wildlife habitat values and mitigation needs.

Successful applicants who receive the Corps’ blessing have one more permit stop to make: Texas Parks and Wildlife Department. No one is allowed “to disturb or take streambed materials” from Texas freshwater areas under TPW Commission control without a “sand and gravel permit.” The commission must find that the permit will not significantly adversely affect fish or wildlife, navigation or recreation. Most of these issues are worked out in the lengthy process of obtaining the other permits, so this permit is usually processed relatively quickly, and is typically the last obtained.

While wrapping up the red tape, you have hopefully attended to financing, because you’ll need plenty. The proposed Applewhite Reservoir (which was approved for construction but defeated by San Antonio voters), was projected to cost about $300 million 15 years ago. The Texas Water Development Board has said Texas needs to spend $30.7 billion to implement water management strategies (including new reservoirs, plus other projects) to meet state water needs through 2060. At last, you’re ready to bring in the bulldozers — if the weather cooperates.

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