Regan Beck, general counsel for public policy at the Farm Bureau, says the new rule sets a dangerous precedent and “turns the state’s water priority system on its head,” a position shared by Ronald Kaiser, professor of water law and policy at Texas A&M University.

“This really will be a precedent-setting case if the courts uphold TCEQ’s position. It is about whether we still believe in the priority system,” Kaiser said.

Dallas-based water rights attorney Mark McPherson says the new rule violates proper use of agency power.

“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.

The lawsuit claims TCEQ does not have the authority to divert from the state’s priority system, even in times of drought. While the suit doesn’t challenge Dow’s senior rights, it takes issue with how TCEQ exempted some junior water rights holders from curtailment while requiring others to “curtail more than their legal share.”

In 2011 TCEQ received a total of 15 senior water right calls resulting in the suspension of about 1,200 water right permits. Senior water right calls were made in the Brazos, Guadalupe, Colorado, Sabine and Neches River Basins. The priority calls were issued by domestic, industrial, irrigation, livestock, municipal and recreational users, and resulted in the suspension of water rights permits mostly from agricultural users. The agency did not curtail water allocations to Texas cities or power generation facilities because of “issues related to public health, safety and welfare”.

It represented the first time the agency selectively targeted one type of junior rights holder over another and served as a catalyst for them to propose and subsequently pass a new rule last year that gave them the power to effectively say who must give up their water rights and who will be allowed to keep their allocations regardless of the state’s priority water rights law.