Bra­zos suit pits farm­ers vs. cities

Farm­ers say they had first dibs on water the state doled out to oth­ers.

Austin American-Statesman - - FRONT PAGE - By Asher Price ash­er­price@states­man.com

It’s a Cen­tral Texas water fight pit­ting farm­ers against cities and power plants, but it’s not the one hap­pen­ing on the Colorado River.

Farm­ers along the Bra­zos River, the basin of which in­cludes Wil­liamson County, are su­ing the Texas Com­mis­sion on En­vi­ron­men­tal Qual­ity, ar­gu­ing that of­fi­cials are over­step­ping their bounds and treat­ing farm­ers un­fairly as the agency tries to bal­ance water needs.

No hear­ing date has been set. But the case is a test of state pow­ers in drought.

In the bal­ance is a gen­er­a­tions-old water rights sys­tem known as the prior ap­pro­pri­a­tions sys­tem, which holds, as in an ele­men­tary school cafe­te­ria line, that you’re served in the or­der in which you got in line. And there are no cuts in line: “First in time, first in right” is the uni­ver­sally ac­knowl­edged maxim of state water at­tor­neys.

The dis­pute be­gan Nov.

14 when Dow Chem­i­cal — which op­er­ates a plant in Freeport, where the Bra­zos spills into the Gulf of Mex­ico, and anx­ious about the drought — ap­pealed to the state en­vi­ron­men­tal agency to make a “pri­or­ity call,” or one in which hold­ers of water rights younger than Dow’s would be sus­pended.

Amid the drought, the pri­or­ity call en­sures that Dow won’t risk be­ing shorted be­cause there isn’t enough water to sat­isfy all of the rights that have been is­sued within the river basin. The Dow water right in ques­tion dates to 1942, throw­ing into jeop­ardy “ju­nior” water rights, or ones se­cured af­ter that date.

“Our lo­ca­tion at the end of the river leaves us hold­ing per­haps the first water right im­pacted by water short­ages dur­ing times of drought,” said Tr­ish Thompson, a spokes­woman for Dow, which em­ploys more than 8,000 peo­ple at its Freeport plant and also pro­vides water to a hand­ful of com­mu­ni­ties in the area.

Zak Co­var, the com­mis­sion’s ex­ec­u­tive di­rec­tor, in­ter­pret­ing pow­ers re­cently given to the agency by the Leg­is­la­ture, de­cided to sus­pend ju­nior water di­ver­sions in an area from Pos­sum King­dom Lake, north­west of Fort Worth, to the Gulf of Mex­ico.

But ar­gu­ing that pub­lic health, safety and wel­fare were at play, he ex­empted cities and power plants from that pri­or­ity call — even ones that se­cured water rights af­ter some agri­cul­tural in­ter­ests. Among them are the cities of Waco and Bryan and power plant op­er­a­tors such as TXU and NRG.

That left farm­ers fum­ing.

In a law­suit filed ear­lier this month in Travis County district court, the Texas Farm Bureau and two Bra­zos basin farm­ers ar­gue that the state en­vi­ron­men­tal com­mis­sion wasn’t given the author­ity by the Leg­is­la­ture to de­part from the prior ap­pro­pri­a­tions sys­tem. The deci- sion af­fects more than 700 farm­ers, ac­cord­ing to the suit, and amounts to tak­ing of a prop­erty right. The farm­ers should at least be com­pen­sated, it ar­gues.

“It’s turn­ing the pri­or­ity doc­trine on its head,” said Re­gan Beck, as­sis­tant gen­eral coun­sel for pub­lic pol­icy at the Texas Farm Bureau.

Bryan-area cot­ton farmer Frank DeStefano, one of the plain­tiffs in the suit, said the com­mis­sion’s de­ci­sion is “basi- cally cut­ting my liveli­hood off.”

Com­mis­sion spokes­woman An­drea Mor­row said the agency doesn’t com­ment on pend­ing lit­i­ga­tion.

The to­tal au­tho­rized an­nual use un­der ir­ri­ga­tion water rights and oth­ers sus­pended by the com­mis­sion’s or­der is 141,090 acre-feet per year, ac­cord­ing to the suit. The to­tal au­tho­rized an­nual use un­der non-sus­pended ju­nior mu­nic­i­pal and power gen­er­a­tion rights is 3.1 mil­lion acre-feet per year. An acre-foot roughly equals the amount three av­er­age Austin house­holds use in a year.

Water at­tor­neys across the state are watch­ing the dis­pute closely.

The en­vi­ron­men­tal com­mis­sion needs to “main­tain the in­tegrity of water rights for water plan­ning,” said Glenn Jarvis, a McAllen water at­tor­ney who chiefly rep­re­sents farm­ers.

“If cities or in­dus­try knew in time of drought that they (can be ex­empt), they won’t plan or ac­quire water rights they need in the fu­ture,” Jarvis said. “From a water con­ser­va­tion stand­point, if they can get water when a short­age comes up, there’s less pres­sure for water con­ser­va­tion.”

But Martin Rochelle, an Austin at­tor­ney who rep­re­sents cities in water cases, said the Texas Com­mis­sion on En­vi­ron­men­tal Qual­ity made a sen­si­ble de­ci­sion.

The Leg­is­la­ture has “al­lowed the TCEQ ex­ec­u­tive di­rec­tor to take into ac­count 21st-cen­tury con­sid­er­a­tions in ap­ply­ing this 19th-cen­tury prior ap­pro­pri­a­tion doc­trine,” Rochelle said. “It has served our state well for a long time. But the no­tion that the TCEQ would ter­mi­nate sup­plies of water for pub­lic water sup­pli­ers and power pro­duc­ers — while al­low­ing a se­nior water holder to con­tinue to di­vert — seems a lit­tle dated to me.”

“We’re in the mid­dle of a pos­si­ble his­tor­i­cal drought in Texas, and th­ese are im­por­tant con­sid­er­a­tions,” he said.

In­so­far as the is­sue is a scuf­fle with farm­ers on the one side and cities and in­dus­try on the other, the dis­pute on the Bra­zos mir­rors one on­go­ing on the Colorado, the river that flows through Austin.

More broadly, too, the dis­putes share a theme: the scarcity of water and the ur­ban­iza­tion of Texas.

But in their par­tic­u­lars, they are dif­fer­ent fights. Along the Colorado, the dis­pute is largely a squab­ble among cus­tomers of the Lower Colorado River Author­ity, which holds rights to more than half the sup­ply in that river basin. The farm­ers on the Colorado River pay a lower “in­ter­rupt­ible” rate to that author­ity, mak­ing them vul­ner­a­ble to water cut­off dur­ing drought.

On the Bra­zos, on the other hand, the dis­pute is be­tween water rights hold­ers and largely about how the pri­or­ity call sys­tem should func­tion.

But the Farm Bureau says the Bra­zos fight could play out in other river basins.

“This does af­fect water rights statewide,” said Beck. “That’s where we’re really look­ing at it as a prop­erty rights is­sue. The state has given them a prop­erty right. And now it’s tak­ing away a prop­erty right with­out com­pen­sa­tion.”

Beck said that if cities or power gen­er­a­tors are in dire straits, he would like them to ap­ply for a pri­or­ity call ex­emp­tion and then pay se­nior water rights hold­ers.

“I would hope courts would rec­og­nize pri­vate prop­erty in­ter­ests,” Jarvis said. “Water rights are be­com­ing very im­por­tant to the state. Large parts of the state are be­com­ing over-ap­pro­pri­ated. That’s why this prior ap­pro­pri­a­tion kicks in. It leads to sta­bil­ity, know­ing what your water rights are.”

WACO TRI­BUNE-HER­ALD

The state sus­pended many water di­ver­sions along the Bra­zos River from north­west of Fort Worth to the Gulf of Mex­ico. Cities and in­dus­tries were ex­empted.

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