Texas Court Finds Drought Curtailment Rules Inconsistent With Water Rights Priority

By Lars-Eric Hedberg  

 

A Texas court invalidated the state's drought curtailment rules because they are not consistent with the priority of water rights provision in the state water code (Texas Farm Bureau v. Texas Commission on Environmental Quality, Tex. Dist. Ct., No. D-1-GN-12-003937, 6/6/13 bench ruling.).

The Texas 53rd Civil District Court in a June 6 bench ruling granted the Texas Farm Bureau's motion for summary judgment and denied a competing motion filed by the Texas Commission on Environmental Quality.

At issue is the commission's drought curtailment rules that put junior Brazos River water rights holders, mostly cities and power generators, ahead of more senior agricultural water rights holders.

Dow Chemical's Priority Call

According to the farm bureau's original petition and request for injunctive relief, Dow Chemical Co. made a priority call on the river Nov. 14, 2012. As senior water rights holder, Dow made the call to prevent upstream junior water rights holders from diverting water and to ensure that it could continue to divert the full amount of its right.

In response to the priority call and under the authority of the curtailment rules, the commission entered an order Nov. 19, 2012, suspending all water use under rights on the river below Possum Kingdom Reservoir that have a priority junior to Feb. 14, 1942.

The farm bureau, a trade association that represents Texas agriculture, stated that of the 845 water rights suspended, 716 of those rights are for irrigation.

Action Challenging Rule's Validity

The bureau sued in Travis County District Court on Dec. 14, 2012, challenging the validity of the curtailment rules and suspension of the water rights.

Although Dow Chemical withdrew its priority call on water in the river basin in January 2013, the bureau continued its suit to invalidate the curtailment rules.

Generally, the bureau argued that the suspension order is invalid because the curtailment rules upon which the order is based are invalid.

According to the bureau's petition, the commission impermissibly “excused all municipal users and power generators from” the effect of its order.

Specifically, the bureau claimed that the curtailment rules adopted by the commission, entitled Suspension or Adjustment of Water Rights during Water Shortage (30 TAC §§36.1 - 36.8.), effectively modified the state's prior appropriation doctrine and exceeded the commission's statutory authority.

The bureau argued that the curtailment rules undermine water code Section 11.027, which states that as “between appropriators, the first in time is the first in right.”

The exception for municipal users in the curtailment rules means that a municipal user who holds a right junior to an agricultural user can continue to divert water while the agricultural user cannot.

In addition to seeking invalidation of the curtailment rules, the bureau asked for temporary and injunctive relief to prevent the enforcement of the rules and order and compensation for senior holders affected by the order.

Court Finds for Bureau

The county district court agreed with the bureau and, in a bench ruling, granted its motion for summary judgment.

In a bureau news release, the organization's president, Kenneth Dierscke, called the court's decision “a victory for property rights in Texas” and added that the bureau is “very pleased with the decision.”

Doug Caroom and Josh Katz of Bickerstaff Heath Delgado Acosta LLP represented the bureau.