Farmers along the Brazos River who had their water rights curtailed in December are breathing easier this week after news that those rights will be restored, but Texas Farm Bureau Legal Counsel Regan Beck says that doesn’t alter plans to prosecute a standing lawsuit against the Texas Commission on Environmental Quality (TCEQ).

The lawsuit, filed by Texas ranchers Frank Volleman and Frank Destefano in conjunction with the Texas Farm Bureau, challenges a new rule enacted by TCEQ that allows the agency to exclude junior water rights holders from water curtailments in instances where “public health, welfare and safety” are an issue.

The suit charges TCEQ illegally gave itself the power to regulate priority water rights in the State of Texas in a manner inconsistent with state law when it proposed and established the new rule last year. In Texas, lawmakers established water rights based upon a “first in time, first in right” basis, meaning senior water right holders, or those who were authorized water rights first, would receive preferential allocations according their allotments at the expense of all junior water rights holders.

By way of example, when Dow Chemical, a senior water rights holder on the Brazos River, exercised their rights by issuing a ‘priority call’ to TCEQ last November, TCEQ immediately issued a curtailment notice to junior water rights holders that cut back the amount of water they could take from the river upstream. Dow claimed low river levels prevented enough water from flowing downstream to satisfy their senior rights allocation.

Junior rights holders included some 700 farmers who take water from the river every year to irrigate their crops, and also power plants upstream and the cities of Waco and Houston who use water from the Brazos. But under terms of the new rule established by TCEQ last year, the power generation plants and the two cities were exempt from the curtailment order because withholding water from these entities could constitute a hazard to public safety and welfare.

In essence, agriculture users of water from the Brazos would have to greatly reduce their usage in order for senior water rights holder Dow Chemical to receive their full allocation, a move Texas Farm Bureau officials call unfair and a clear violation of state water laws.