Brazos suit pits farmers vs. cities
Farmers say they had first dibs on water the state doled out to others.
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.”