On June 16, 2015, the Texas Commission on Environmental Quality (“TCEQ”) petitioned the Texas Supreme Court for review of the appellate court decision in Texas Farm Bureau v. TCEQ.
The case stems from drought emergency actions taken in 2012. Dow Chemical requested a priority call on its Brazos River senior water rights. In issuing that call, TCEQ curtailed over 800 water rights. But under a 2011 law guiding administration of water rights in a drought emergency, TCEQ made an exception for rights used for municipal supply or electric power generation. The Texas Farm Bureau challenged this action arguing that TCEQ violated the priority system by “cherry picking” which types of users were curtailed. The district court and the appellate court issued ruling in favor of the Texas Farm Bureau.
TCEQ maintains that the priority system existed prior to the legislature passing the 2011 law guiding the development of drought rules—and, therefore, the legislature intended to do something new. The argument continues that the priority system is the basic means of administering water rights, but during a drought emergency the agency is authorized to temporarily suspend water rights or adjust diversions to meet a set of policy priorities outlined in the legislation—which ultimately have the effect of setting domestic and municipal use as the first priority.
TCEQ further argues that the prior rulings requiring a strict adherence to the priority system nullify provisions of the 2011 law. As written in the petition, “Simply imposing the first-in-time rule would make the balancing factors of [the new law] completely unnecessary.” Later adding, “If as the court of appeals held, subsection (a) [of the new law] requires a strict application of the priority doctrine, then the only rights that can be ‘suspended’ are junior rights, and no senior rights can be ‘adjusted.’ That cannot be what the Legislature intended …because that would have been the case before the enactment of the new statute.”
In its final argument, TCEQ proposes that the court’s presumption that TCEQ has no latitude to apply the policy considerations in the new law (and therefore the new law simply repeats existing law), “misunderstands that fundamental mechanism by which the Texas Constitution protects property rights: the proper remedy is compensation, not a bar on the impairment of property rights.” This means that the judicial remedy against government taking private property is the imposition of a cost.
Conflict among types of water users is nothing new in western water. In the 1990s, California saw a similar controversy over “municipal preference,” ultimately leading to the Monterey Amendments to the State Water Project (“SWP”) contracts—which included the elimination of the municipal preference in SWP contracts and allowed for the permanent, market-based transfer of 130,000 AF from agricultural use to municipal use. Will Texas see a similar result?
Written by Marta L. Weismann