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Environmental Blog

  • 23
  • February
  • 2016

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Decision Invalidating TCEQ’s Drought Curtailment Rules is Final

On February 19, 2016, the Texas Supreme Court declined to hear a challenge to a lower court ruling in Texas Commission on Environmental Quality v. Texas Farm Bureau et al., which held that Texas cannot treat cities and power generators preferentially compared to parties with more senior water rights, even if the state declares it necessary to protect the public health, safety, and welfare. 

The case involved drought curtailment rules that the Texas Commission on Environmental Quality (“TCEQ”) promulgated in 2012 in response to severe drought conditions. TCEQ interpreted the new rules to allow it to issue curtailment orders that circumvented the “first in time, first in rights” system of surface water rights. In November of that year, a senior water rights holder on the Brazos River made a priority call. It claimed that it could obtain the water to which it was legally entitled. In response, TCEQ issued an order suspending all junior water rights on the Brazos River except for municipal users and power generators. The agency indicated that it issued the order based on the need to protect public health, safety, and welfare during emergency drought conditions. 

The Texas Farm Bureau and other plaintiffs filed suit in Travis County District Court on December 14, 2012, challenging TCEQ’s authority to issue the order and seeking a declaratory judgment to invalidate the drought curtailment rules. On June 6, 2013, the district court granted plaintiffs’ motion for summary judgment. It found that TCEQ exceeded its authority by departing from the priority system when it provided exemptions for certain preferred uses. 

On appeal, the 13th Court of Appeals in Corpus Christi agreed with the district court. Its decision said that “none of the statutes or the constitutional provision cited by TCEQ give the agency the general authority to suspend water rights after they have been issued.” The decision did not invalidate all suspension or curtailment orders; rather, it required TCEQ to enforce the priority system strictly when issuing such orders. 

The case has important implications for TCEQ’s authority to manage the state’s surface water supply. It is unclear which strategy TCEQ will pursue to manage the state’s water supply in times of scarcity. Farm Bureau appears to give the agency relatively little flexibility to issue curtailment orders based on public health, safety, and welfare during a drought. As an alternative, TCEQ appointed a so-called watermaster for the lower Brazos River basin in April 2014, with the authority to enforce water rights and allocate water per adjudicated water rights. Watermasters monitor stream flows, reservoir levels, and water use to achieve compliance with water rights. Watermasters also coordinate diversions and regulate reservoirs as needed to prevent the wasting of water or its being used in quantities beyond a user's right. Other watermasters manage the Rio Grande, South Texas, and Concho River Basins. Those watermasters can, and have, required municipalities to reduce water use in order to preserve access for senior rights holders.

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