In an apparent victory for farmers and longtime water rights holders, the Texas Supreme Court recently affirmed a decision limiting the state’s power to distribute water during drought.
Per the Austin American-Statesman, farmers along the Brazos River had sued the Texas Commission on Environmental Quality (TCEQ). They argued that commission officials overstepped their bounds and treated farmers unfairly when the agency tried to balance water needs during a severe drought. The case tested the water rights system known as the prior appropriations system, which holds that “whoever uses a particular river water first acquires a right to continued enjoyment of the same over and above rival claimants who start consuming later.” Later users may only use any remaining water.
In 2012, Dow Chemical requested the state environmental agency make a “priority call” to suspend water rights for those in line after Dow. Dow operates a plant in Freeport, Texas, where the Brazos spills into the Gulf of Mexico. Amid the drought, the priority call ensured that Dow wouldn’t risk being shorted because there wasn’t enough water to satisfy all of the rights that had been issued within the river basin. The Dow water right in question dates to 1942, jeopardizing water rights secured after that date.
The commission, interpreting powers given by the Legislature, suspended junior water diversions citing public health, safety and welfare concerns. Cities and power plants were exempted from the priority call, including those that secured water rights after some agricultural interests.
The Texas Farm Bureau and Brazos basin farmers sued in December 2012 in state district court, arguing the state environmental commission had no authority from the Legislature to depart from the prior appropriations system. They argued the decision affected more than 700 farmers and amounted to the taking of a property right worthy of compensation.
By January 2013, the TCEQ announced it was no longer suspending water rights after significant rainfall led Dow to cancel its priority call. The case, however, proceeded. The farmers were victorious in Travis County and on appeal and the state Supreme Court denied a petition for review, effectively allowing previous victories by the farmers to stand. In his monthly column, State Senator Robert Nichols declared, “This was a victory for farmers, ranchers and others who advocate that private property rights be protected in the context of surface water use in Texas.”
In an email to the Texas Tribune, TCEQ spokesman Terry Clawson said that the rulings were of “great concern” and undercut the commission’s authority “to protect public welfare during drought conditions.” Clawson added that “Serious impacts to public health and safety may result if other adequate sources of water are not available.”
The Corpus Christi Caller-Times editorialized, “The Dow case does point to the need for a clear law that defines public health and safety in a way that would give it a reasonable, unassailable legal priority over property rights and magnesium extraction. The boundary lies somewhere between keeping the rose bushes alive and keeping people alive.”