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.

A dangerous precedent

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.

Relief in sight, for this year

TCEQ announced last week that Dow Chemical rescinded its priority call on water in the Brazos River Basin, and junior water rights holders in the basin can now resume diversion of water according to their water rights. While farmers within the 43 counties affected by the TCEQ ruling say they are pleased to get the news of Dow’s decision, they express concern that TCEQ’s action may only be the first of many other limiting actions in the months and years ahead, especially if drought conditions continue into the growing year.

In spite of Dow’s withdrawal of the priority call, attorneys for plaintiffs in the lawsuit say they will continue to press for a court decision that could alter the way TCEQ curtails water rights for farmers.

"We are confident that when the court looks at this issue carefully they will agree the latest TCEQ rule oversteps the authority of and conflicts with the intent of established priority water rights law in Texas," Beck said this week.