© 2013 The Texas Lawbook.
By Jeff Bounds
Staff Writer for The Texas Lawbook
(July 25) –Texas’ environmental watchdog is expected to reveal Friday whether it will continue allowing municipalities and power generators to jump to the front of the line over the right to use increasingly scarce water in the Brazos River region.
The decision, according to legal experts, will have broad implications for businesses, farmers and ranchers across the state.
In June, a state district judge in Austin ordered the Texas Commission on Environmental Quality to stop that practice, ruling that it should follow a more than 100-year-old system for allocating water, called the priority doctrine.
Embodied by a principle called “first in time, first in right,” the priority doctrine says that those who get in line first for rights to a given amount of water are supposed to get their portion before those who got in line later. If the water runs out before those in back can get their share, well, tough luck – a potentially big problem for cities and other big water users that may be standing in the rear during Texas droughts.
But Judge Scott H. Jenkins left open the door for the TCEQ to continue following rules it adopted in November, dubbed the “drought curtailment system,” while it appeals his June 6 decision upholding the priority doctrine.
“We could be years away from having this resolved,” said Mark McPherson, a Dallas attorney who specializes in water and other environmental issues. “The TCEQ will decide whether to follow the court opinion or follow their drought curtailment rules. They’ll have the decision-making power.”
At the TCEQ hearing scheduled for Friday, agency commissioners will examine the decision by the executive director to implement drought curtailment rules, and will either confirm that decision or modify it.
A TCEQ spokeswoman, Andrea Morrow, said this week that she had no information on whether the agency will use the drought curtailment rules or the priority system during the appeal of the lawsuit against the agency.
“That’s not something that we know yet,” she said.
Morrow noted that the only existing “priority call” is on the Brazos River, and that this region of the state is the only one impacted at the moment by any change to water rules.
Dow Chemical Co., on June 26, made that priority call, meaning the company – which stands near the front of the water-rights line in that region – sought to keep upstream users in the back of the line from diverting water. A priority call ensures that a senior water-rights holder can get all the water to which it is entitled. (Dow Chemical also made priority calls last year, but withdrew those calls following heavy rains.)
The Texas Farm Bureau, a Waco-based organization that represents farmers, ranchers and property owners across the state, went to court in December to get the TCEQ’s drought curtailment rules thrown out.
The Farm Bureau won the case at the district court level on June 6. The TCEQ has appealed, and the Farm Bureau is now asking the 13th Court of Appeals in Corpus Christi to send the case back to the district court in Austin.
The Farm Bureau is concerned that, during the appeals process, the TCEQ will continue to follow the drought curtailment rules, according to court documents. That includes the possibility of having cities and power generators that are in the back of the water rights line being able to jump to the front during drought conditions, the Farm Bureau’s filings say.
Regan Beck, assistant general counsel for public policy at the Farm Bureau, says the organization intends “to show the harm that will come about because of following the new rules.”
“It is a huge thing for our water irrigators to have water rights,” he said. “Producers could be really hurt by (water rights) exemptions for years to come.”
In an interview this week, Beck said he wasn’t aware of particular instances where farmers or ranchers had been put out of business by the TCEQ’s drought curtailment rules. “But I do know where they’re going to be substantially harmed.”
Cities and power producers, which also rely on water, could be in a tight spot if drought conditions persist.
“This will put the highlight on city councils that have spent money on things other than water,” McPherson said. “It shows how well municipal water users have prioritized, how they’ve planned. We’re in unchartered territory.”
A wrinkle in Texas water law gives the TCEQ another way of allowing rights holders in the back of the line to get water ahead of users in the front, according to Jeremy Brown, a research fellow at the Center for Global Energy, International Arbitration and Environmental Law at the University of Texas at Austin’s School of Law.
Brown says that Texas water law gives the TCEQ the authority to police water rights. “But there isn’t a legal requirement that they do so,” he said.
Ergo, the TCEQ could simply decide to not enforce senior water rights if it wants upstream junior rights holders to get water first, he said.
The senior rights holders would have the option to sue, Brown notes.
“Which is not as neat, orderly or convenient for them. Or as quick,” he says.
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