This will be worth watching.
A simple idea has guided appropriations of Texas water for decades: First come, first served.
Now, with drought conditions returning to almost the entire state, the principle is being put to the test by a fight over water in the Brazos River.
The Texas Commission on Environmental Quality is withholding water from some, but not all, rights holders to meet the needs of the Dow Chemical Co., which operates a massive manufacturing complex where the river empties into the Gulf of Mexico.
Farmers have sued to get their water back, saying the state agency overstepped its authority by exempting cities and power producers with rights younger than theirs from the suspension order. The agency based the decision upon “public health, safety and welfare concerns.”
No one disputes the chemical maker’s rights, which date to the 1920s. The legal question is whether TCEQ may consider factors beyond seniority when deciding who gets water first in times of shortage.
“This really will be a precedent-setting case if the courts uphold TCEQ’s position,” said Ronald Kaiser, professor of water law and policy at Texas A&M University. “It is about whether we still believe in the priority system. It is elegantly simple, but its limitation is that we don’t consider the highest economic use of water.”
In the lawsuit, the Texas Farm Bureau and two growers argue that TCEQ does not have the authority to divert from the priority system during drought.
The order leaves more than 700 farmers without surface water for irrigation, while dozens of others with junior rights, including the cities of Houston and Waco and NRG Energy, will not be restricted in their use.
“It turns the priority system on its head,” said Regan Beck, assistant general counsel for public policy at the Farm Bureau.
Mark McPherson, a Dallas-based lawyer who specializes in water rights but is not involved in the lawsuit, agreed.
“When the historic state priority system is changed so materially, it makes those who planned based on the priority system look foolish, and it makes those who benefit from the change look lucky,” McPherson said. “I don’t think that’s a proper use of agency power.”
The solution, he said, is for those who need more water to pay for it. State law allows TCEQ to transfer water rights to meet urgent public health and safety needs, but doing so requires compensation, which was not offered in this case.
“The correct answer is perhaps harsh, but nonetheless necessary: Go acquire more water rights, at the market cost, and pass those costs on to the users,” McPherson said. “And if this were allowed to happen, we’d quickly feel, and finally understand, that water supply is a critical factor in economic competition.”
I’m not a lawyer and I know precious little about water rights, but what McPherson says makes sense to me. I can’t wait to see what the court says. I imagine the Lege will be interested in this decision as well, as it may force them to rewrite some existing laws, and it may give them some extra incentive to tackle that long-term water issue.
Meanwhile, in other water dispute news, the state of Texas has filed a complaint with the Supreme Court against New Mexico over water from the Rio Grande.
In its complaint, Texas says that New Mexico has dodged a 1938 agreement to deliver Texas’ share of Rio Grande river. Instead, New Mexico is illegally allowing diversions of both surface and underground water hydrologically connected to the Rio Grande downstream of Elephant Butte reservoir in New Mexico, according to the filing.
The complaint, filed after New Mexico took its own legal actions and after years of negotiations, asks the Supreme Court to command New Mexico to deliver water apportioned to Texas.
The Rio Grande is the primary, and at some places the only, source of water for much of the agricultural land within Texas. Water from the river constitutes, on average, half the annual water supply for El Paso, according to the filing.
“So long as New Mexico refuses to acknowledge its Rio Grande Compact obligations to Texas, no amount of negotiation or mediation can address Texas’ claims,” the filing said. “And so long as the matter continues unresolved by this Court, New Mexico can simply continue to divert, pump and use water in excess of its Rio Grande Compact apportionment, to the continued detriment of Texas.”
Conservation in El Paso has been emphasized for decades, said state Rep. Joe Moody, D-El Paso. “The community has rallied behind conservation as important,” he said. “But we have rights to access to water: Water in the desert is crucial.”
New Mexico Attorney General Gary King fired back Thursday in a statement that Texas’ court filing was “tantamount to extortion.”
New Mexico farmers already can draw less water from the Elephant Butte reservoir following an agreement several years ago between the two states. King said the Texas complaint, if successful, would “deplete the water in southern New Mexico in a manner that would destroy the long-term viability of water resources.”
The Trib also covered this and another dispute between Tarrant County and Oklahoma that SCOTUS has agreed to adjudicate. I figure we’re going to see a lot more of this sort of thing in the coming years.