Spring 2015

Drought Rules

The LAF Board originally approved a request to participate in this case on September 26, 2013.

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 House Bill 2694 directing the 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 motivation for the legislation and corresponding 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 (Article XVI, Section 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.  Consequently, TCEQ believes that there is constitutional support for the special treatment afforded public water suppliers, and that it would be poor 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.

The decision of the Austin district court was appealed to the Thirteenth Court of Appeals.  LAF filed an amicus brief along with the City of Abilene, City of Beaumont, Palo Pinto County Municipal Water District No. 1, and West Central Texas Municipal Water District with the Thirteenth Court of Appeals on February 11, 2014.  On April 2, 2015, the Thirteenth Court of Appeals issued an opinion in favor of the Texas Farm Bureau, upholding the district court’s decision and 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.  TCEQ is filing a petition for review to the Texas Supreme Court and LAF has agreed to join an additional brief.  Tex. Comm’n on Envtl. Quality v. Tex. Farm Bureau, No. 13-13-00415-CV (Texas Supreme Court).  LAF’s Attorney: Martin Rochelle, Lloyd Gosselink Rochelle & Townsend, P.C., Austin.