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Environmental Blog

  • 06
  • September
  • 2016

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State Representative Seeks Attorney General Opinion on Controversial San Saba River Management Plan

In an August 26 request for a formal opinion of Texas Attorney General Ken Paxton, State Representative J.D. Sheffield asked the Attorney General to weigh in on the constitutionality of the proposed Upper San Saba River Management Plan (“the Plan”), which would allow a private board to oversee all diversions of water from the upper portion of the San Saba River.

Rep. Sheffield argues that the execution of the current plan would require the unconstitutional delegation of legislative and executive authority to a private entity, and would effect an unconstitutional taking of water rights belonging to landowners along the upper portion of the San Saba River. Rep. Sheffield points out that the Legislature designated the Texas Commission on Environmental Quality (“TCEQ”) as the state agency with primacy over matters related to the appropriation and regulation of state-owned waters, including the San Saba River. The Legislature also created the State Watermaster Program, under TCEQ jurisdiction, to facilitate the detailed regulation of beneficial use and diversions from water courses such as the Upper San Saba River.

Rep. Sheffield’s letter cites several other items that he suggests are “illegal elements” contained within the Plan, including that the proposed “governing board” will be dominated by one particular interest group, and that the Plan would permit unregulated pumping of the river by upstream landowners, allowing upstream users to take as much water as they need at the expense of downstream users.

Opinions issued by the Office of the Attorney General typically are issued within 180 days of receiving a request, making it likely that any opinion issued will be issued immediately prior to, or in the early stages of, the 2017 legislative session. An opinion casting doubt on the constitutionality of the Plan could forestall the legislative action needed to incorporate the Plan into statute and lend support to landowners seeking the assignment of a Watermaster. The outcome of this matter also may impact broader conversations regarding best practices for the management of state-owned water resources in other parts of the state. The full text of Representative Sheffield’s letter to the Attorney General is available here.

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Author

Rachel D. Comeskey

Rachel D. Comeskey Associate