In a win for farmers, ranchers and longtime water rights holders, the Texas Supreme Court on Friday let stand a Brazos River basin decision that limits the power of the state to divvy up water during drought.
Farmers along the Brazos River, whose basin includes Williamson County, had sued the Texas Commission on Environmental Quality, arguing that officials overstepped their bounds and treated farmers unfairly as the agency tried to balance water needs during a scorching drought.
In the balance was a generations-old water rights system known as the prior appropriations system, which holds that you’re served in the order in which you got in line: “First in time, first in right” is the maxim of state water attorneys.
The dispute began in fall 2012 when Dow Chemical — which operates a plant in Freeport, where the Brazos spills into the Gulf of Mexico — asked the state environmental agency to make a “priority call” to suspend water rights for those in line after Dow.
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, throwing into jeopardy “junior” water rights, or ones secured after that date.
Zak Covar, the commission’s executive director at the time, interpreting powers that had recently been 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 were the cities of Waco and Bryan and power plant operators such as TXU and NRG.
That left farmers angry.
In a December 2012 lawsuit filed in state district court in Travis County, the Texas Farm Bureau and Brazos basin farmers argued that the state environmental commission wasn’t given the authority by the Legislature to depart from the prior appropriations system. The decision affected more than 700 farmers, according to the suit, and amounted to the taking of a property right. The farmers should at least be compensated, it argued.
Bryan-area cotton farmer Frank DeStefano, one of the plaintiffs in the suit, told the American-Statesman in 2012 that the commission’s decision is “basically cutting my livelihood off.”
By January 2013, the TCEQ had announced that it was no longer suspending water rights after a spate of rain led Dow to rescind its priority call — but the case continued. The farmers were victorious in Travis County and on appeal. The state Supreme Court denied a petition for review, effectively allowing previous victories by the farmers to stand.
The decisions show that the prior appropriations system remains “the bedrock principle for surface water rights in Texas,” said Josh Katz, an attorney representing the Farm Bureau.
Officials at the Texas Commission on Environmental Quality did not immediately comment Friday.
In the broadest strokes, with farmers on one side and cities and industry on the other, the dispute on the Brazos mirrored one that bedeviled the Colorado, the river that flows through Austin. During the drought that rocked Central Texas, the Lower Colorado River Authority cut off water for rice farmers on the Colorado for several years running.
PRIOR APPROPRIATIONS SYSTEM
• In Texas, water in rivers, lakes and streams — known as surface water — is owned by the state and held in trust for residents.
• Through the Texas Commission on Environmental Quality, the state grants the right to use the water to farmers or ranchers, cities, industries, businesses, and other public and private interests.
• To use surface water in Texas, such interests must first get permission from the state unless they take the water for one of several exempt purposes, including domestic or livestock use, emergency use or wildlife management.
• Traditionally, first, or ‘senior,’ water rights must be satisfied before later water rights are met.
• The date a permit holder secures water rights with the state establishes its place in line