Texas battling feds’ plan for water supplies
WASHINGTON — In a battle over water, Texas is leading an uprising against an Army Corps of Engineers proposal to give the federal government more authority over supplies at reservoirs across the country. The new federal rule jeopardizes the state-issued water rights of Texas property owners and farmers, the state’s environmental agency has concluded.
Texas Sens. Ted Cruz and John Cornyn and allies in the Senate last week asked the Trump administration to intervene, arguing that Army engineers have ignored complaints that new regulations intrude on states’ rights.
At the center of the dispute is a disagreement over who controls water. The Corps contends in documents that the changes do not have “federalism implications.” States disagree.
The Corps water supply rule “ignores both precedent and statute that the natural flows of the river remain squarely under the state’s jurisdiction, de
spite construction of Corps dams and reservoirs,” reads a letter to the Office of Management and Budget authored by Cruz and Sen. Kevin Cramer of North Dakota, both Republicans.
The letter describes the new rule, proposed at the tail end of the Obama administration, as “imminent.” All told, 19 senators from nine Western states signed the letter.
The Corps, which owns or operates 30 lakes and dams in Texas, exercises broad authority over navigable rivers, flood risk management and conservation, including wetlands. The Corpsoperated lakes include Canyon Lake northeast of San Antonio.
In the new regulations, the Corps proposes to redefine the
term “surplus water” and change procedures for water withdrawals from reservoirs. Provisions also aim “to clarify the amount of water that may be withdrawn under water supply storage,” according to Corps documents.
A draft environmental assessment says the regulations “are intended to enhance the Corps’ ability to cooperate with state and local interests in the development of water supplies” and to “ensure fairness for water users.”
The rules would become final next month, according to a government website. The Corps did not respond to requests for comment.
The Corps, a $5 billion executive agency under the Pentagon, often has done battle with states over its authority. In recent years, Army engineers have been involved in court disputes involving Corps facilities in Georgia and along the Missouri River, which stretches from Montana to Missouri.
In Texas, almost all water is owned by the state in a system that began with Spanish and Mexican law and later became Texas law, according to the state.
The Texas Commission on Environmental Quality, which oversees water rights for cities, agricultural users and others, has raised concerns. In formal comments
to the Corps, the agency contends that “language throughout the proposed rule conflicts with both federal law and Texas water law” and could “deprive Texas water right holders of water authorized under their state-issued water rights.”
For instance, the Corps’ proposal likely would conflict with state policy by allocating socalled made inflows — water directed into a reservoir by a specific entity — to other users of the reservoir on a proportional basis. That practice “would result in water that is permitted to an existing Texas water right being allocated to other users in a manner that violates state statutes and ownership of state water,” the agency said.
In a statement last week, the agency asserted that the Corps “should not interfere with the state’s authority.”
The Texas Water Conservation Association, which represents cities, agricultural interests and others, contends that the new rule is a one-size-fits-all approach that “tramples on state rights.”
Dean Robbins, the association’s general manager, said he has fielded complaints from members.
“While the rule may be well-intentioned, we feel that it infringes on the state’s right to allocate state water,” he said.
North Dakota, allied with Texas in the fight, summed up its objections: “The only conclusion that can be drawn from the proposed rule as written is that the Corps is attempting to take over all water management of any river where it has built a reservoir — in defiance of Congress, court opinions, states’ rights and the Constitution.”