Long-Awaited Resolution of the Conflict over the Marvin Nichols Reservoir (Possibly)
On September 9, 2015, the Texas Water Development Board (“TWDB” or the “Board”) voted unanimously that an “interregional conflict” existed between the Region C Regional Water Planning Area (“Region C”) and Region D Regional Water Planning Area (“Region
D”) initially proposed regional water plans (“IPPs”) for 2016, triggering third-party mediation, which the Board ordered to begin on or before October 5, 2015. The dispute, relating to the proposed Marvin Nichols Reservoir, has persisted for almost a decade.1 Tex. Water Code § 16.053.
I. Background: The State Water Planning
Process and the TWDB
The TWDB is primarily responsible for water planning and for administering water financing for the state. However, the state water planning process relies heavily on regional planning and input in developing state-wide water plans. The state is divided into sixteen regional water planning groups. The regional water planning groups are tasked
with developing regional water plans at least every five years, which plans are then submitted to the TWDB for approval. Regional plans must incorporate water conservation practices and drought management measures and must be “consistent with long-term protection of
the state's water resources, agricultural resources, and natural resources.”
The Board will not approve a regional water plan until it determines that no “interregional conflicts” exist between that plan and any other regional water plan.
2 “An interregional conflict exists when more than one regional water plan relies upon the same water source, so that there is not sufficient water available to fully implement both plans and would create an over-allocation of that source.”
3 If the TWDB determines that an interregional conflict exists, the Board must “facilitate coordination between the involved regions to resolve the conflict.”
4 If the regions are unable to resolve the conflict, the TWDB is required to intervene.
Once the regional plans have been submitted and approved, the TWDB is then required to adopt a comprehensive state water plan that incorporates approved regional plans every five years.5
II. Interregional Conflict
The dispute between the Region C and Region D water planning groups revolves around the proposed Marvin Nichols Reservoir (the “Reservoir”).
Located entirely within the boundaries of Region D, the Reservoir, if constructed, would cost approximately $3.4 billion and would be an estimated 66 to 70 thousand acres in size. It has long been considered as a possible water management strategy by the TWDB and it was
recommended as a water management strategy in the 1968, 1984, and 1997 State Water Plans.
Beginning in 2006, however, Region D took the position that the Reservoir should not be developed due to concerns about its potential socioeconomic, environmental, and private property impacts. Region C, on the other hand, has consistently been in favor of the proposed Reservoir. In its 2011 Regional Water Plan, Region C included the Reservoir as a significant source for the region’s future (and growing) water needs. By contrast, Region D’s 2011 Regional Water Plan “provided detailed reasons why the impact of that proposed reservoir on
Region D's timber, agricultural, environmental, and other natural resources constituted an interregional conflict with Region C's plan.” However, the TWDB approved both plans despite the apparent conflict. In fact, “[w]hen the Board approved each plan,
it expressly found that there was no interregional conflict.”6
In January 2012, individual landowners and members of the Region D planning group filed suit in District Court in Travis County, seeking review of the TWDB’s decision to approve the Region C regional water plan.7 The District Court determined that an interregional conflict existed and reversed the TWDB’s decision to approve both plans. The court directed the TWDB to resolve the conflict, and the TWDB appealed. The Texas 11th Court of Appeals
affirmed the district court's ruling.8 Following the court of appeals’ decision, the TWDB arranged for mediation between Region C and Region D, but in December 2013, the mediator reported that the parties were unable to reach an agreement. Under the court’s order and the state water planning process, the Board was required
to resolve the conflict.9
On August 8, 2014, the TWDB ordered Region C to conduct an analysis and quantification of the impacts of the Marvin Nichols Reservoir Water Management Strategy on the agriculture and natural resources of Region D and the State. Region C submitted its analysis to TWDB on
October 29, 2014. In December 2014, Region D submitted its response to the Region C analysis. On January 8, 2015, the TWDB issued an “Order Concerning the Interregional Conflict between the 2011 North Central Texas Regional Planning Area Regional Water Plan and the 2011 North East Texas
Regional Planning Area Regional Water Plan in Accordance with Water Code §16.053.” In its January 8, 2015 order, the Board found that the Region C 2011 Regional Water Plan, together with its “analysis and quantification submitted on October 29, 2014, [met] the
applicable statutory and regulatory criteria,” and as such, “the interregional conflict as asserted by Region D [was] resolved with the inclusion of the Marvin Nichols Reservoir Project as a recommended water management strategy in the 2011 Region C Regional Water Plan.” The Board directed both regional water
planning groups to revise their 2011 Regional Water Plans to reflect the Board’s action and submit their revised plans to the Board by March 20, 2015. The revised plans were adopted, and the Board considered the issue resolved.
However, resolution was short-lived, and fell apart as soon as the various regions submitted their 2016 IPPs. The Region C IPP included a modified version of the Marvin Nichols Reservoir. Region C’s 2016 IPP referred to this modified proposal as the “Sulphur Basin Supplies” strategy, because it involves a scaled
down version of the Reservoir, together with the reallocation of flood pool storage in Wright Patman Reservoir (also in the Sulphur River Basin), to meet Region C’s future water needs.
In July 2015, the Board asked all 16 regional water planning groups to notify the Board if any project or issue raised in another Region’s 2016 IPPs would have an unacceptable degree of impact on its planning area. In response, Region D sent a letter to the
board alleging that the Reservoir included in the Region C 2016 IPP would have an unacceptable degree of impact on Region D’s water planning area, is not protective of natural and agricultural resources of Region D, and conflicts with Region D’s regional water plan.
Region D argued that the proposed Marvin Nichols Reservoir would be inconsistent with the long-term protection of resources because it would “(1) change the pattern flow of the Sulphur River; (2) require mitigation in Region D; and (3) destroy resources in
Region D, including but not limited to, bottomland hardwood, farming, ranching, and other related industries.” Region D did, however, acknowledge that the reallocation of flood pool storage in Wright Patman Reservoir could be a feasible alternative for meeting Region C’s future
The two regions were then invited to submit briefing on whether an interregional conflict existed. After reviewing the parties’ briefing, the Executive Administrator of the Board recommended that the Board find that an interregional conflict exists and that the parties enter into mediation to
resolve the conflict. The Executive Administrator further recommended that mediation be limited to Region C’s combined Marvin Nichols Reservoir and Wright Patman reallocation strategy, as proposed in its 2016 IPP. On September 9, 2015, the Board voted unanimously to adopt the Executive Administrator’s
As before, if the mediation fails to resolve the issue, the Board will be required to step in. Some observers are optimistic about the prospects of mediation, because both sides have a strong interest in resolving the conflict. Among other reasons, neither region will be
eligible to receive any water infrastructure financing from the Board until the problem is resolved because in order for a project to be eligible for state funding, it must be included in the State Water Plan.
2 Tex. Water Code §16.053(h)(7)(A).
3 31 Tex. Admin. Code § 357.10.
4 Tex. Water Code § 16.053(h)(6).
5 Tex. Water Code § 16.051(a).
6 Texas Water Dev. Bd. v. Ward Timber, Ltd., 411 S.W.3d 554, 556 (Tex. App.—Eastland 2013, no pet.).
7 Ward Timber, Ltd; Ward Timber Holdings; Shirley
Shumake; Gary Cheatwood; Richard LeTourneau; and Pat Donelson v. Texas Water
Development Board, No. D-1-GN-11-000121 (126th Dist. Ct., Travis County, Tex., Dec. 5, 2011).
Water Dev. Bd., 411 S.W.3d at 554.
9 Id. at 575 (“At the end of the time period, the Board must resolve the conflict for planning purposes if the two regions cannot reach agreement”).