Spring 2015

Drought Rules

The issue in this case was whether the Texas Commission on Environmental Quality (TCEQ) had the authority to adopt and implement rules relating to “Suspension or Adjustment of Water Rights During Drought or Emergency Water Shortage.”  In Texas, older water rights take priority over newer ones.  This is referred to as the prior appropriation doctrine, which is found in Water Code section 11.027 (“first in time is first in right”).  In 2011, the Texas Legislature passed HB 2694 directing 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 in 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 (art. 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 simply because their right is older.

TCEQ appealed the district court’s decision and LAF joined an amicus brief with the City of Abilene, City of Beaumont, Palo Pinto County Municipal Water District No. 1, and West Central Texas Municipal Water District.  The Thirteenth Court of Appeals held for the Texas Farm Bureau concluding that TCEQ’s police power and general authority does not allow it to exempt junior preferred water rights from suspension based on public health, safety, and welfare concerns.  Tex. Comm’n on Envtl. Quality v. Tex. Farm Bureau, No. 13-13-00415-CV (Tex. App.—Corpus Christi Apr. 2, 2015).  LAF’s Attorney: Amy Emerson, Lloyd, Gosselink, Rochelle, & Townsend, P.C., Austin.