In Texas, older water rights take priority over newer ones. This is referred to as the prior appropriation doctrine, which is found in Texas Water Code section 11.027 (“first in time is first in right”). In 2011, the Legislature passed HB 2694 directing Texas Commission on Environmental Quality (TCEQ) to adopt drought rules that afford a preference to cities and other public water suppliers in their diversions of state water without regard to the priority of their water rights. The foundation for the legislation and the rules is that those who supply water for essential public purposes should be able to divert water needed for those purposes, temporarily during a drought, even if their water rights’ priorities might not have allowed them to divert.
The Texas Farm Bureau challenged TCEQ’s rules, arguing that the rules violate Section 11.027—which they clearly do. The district court in Austin agreed with the Farm Bureau. The treatment afforded cities and other public water suppliers under both HB 2694 and the agency’s rules is a substantial departure from “first in time.” Texas, however, is in an historic drought, and the state’s urban population continues to grow. The Texas Constitution’s Conservation Amendment (Article XVI, Sec. 59) provides that the “legislature shall pass all laws” relevant to the conservation and use of the state’s natural resources, including its surface water supplies. So, TCEQ believes that there is constitutional support for the special treatment afforded public water suppliers and that it would be a tragic policy to cut off public water suppliers due to their priority, while agricultural, recreational and other uses continue to divert water simply because their right is older.
The decision of the Austin district court is on appeal to the Thirteenth Court of Appeals. Tex. Comm’n on Envtl. Quality v. Tex. Farm Bureau, No. 13-13-00415-CV (Thirteenth Court of Appeals—Corpus Christi—Edinburg) LAF’s Attorney: Martin Rochelle, Lloyd Gosselink Rochelle & Townsend, P.C., Austin.