News Feature | April 23, 2015

Court Sides With Water Rights Holders Over Texas Regulators

Sara Jerome

By Sara Jerome,

Texas cannot favor cities and power generators over ranchers and farmers who hold senior water rights even if environmental regulators say it would be in the public interest during the state's crippling drought.

A state appeals court sided with "longstanding water rights holders in a Brazos River case with widespread implications for future water battles in drought-prone Texas," the Texas Tribune reported.

The ruling, handed down in April by the 13th Court of Appeal in Corpus Christi, upheld a previous ruling that regulators cannot put the water needs of cities and power generators above those of senior water rights holders for the sake of the public interest.

The case focused on surface water rights along the Brazos River Basin, but it could have major effects on water policy across the state. Regulators at the Texas Commission on Environmental Quality (TCEQ) lost the case, decided in a 15-page opinion.

"TCEQ identifies several statutory and one constitutional provision that purport to give TCEQ general power to act in the public interest. None of the statutes or the constitutional provision cited by TCEQ give the agency the general authority to suspend water rights after they have been issued," the opinion said.

The court conceded that TCEQ does have the authority to regulate the state's "scare water resources," but it said the agency may not claim more power than the law provides.

"We conclude that TCEQ’s police power and general authority does not allow TCEQ to exempt junior preferred water rights from suspension based on public health, safety, and welfare concerns," the opinion continued.

This blow to the state's regulatory options means Texas will need to find other ways to confront its crippling drought. But experts say the state is unlikely to take the same kind of sweeping action that California recently took. In April, California Governor Jerry Brown announced a mandate that cities and towns decrease water levels 25 percent compared to 2013.

State Climatologist John Nielsen-Gammon explained that a similar mandate would be unlikely to fly in Texas.

“Texas doesn’t really work at the state level for water management, water restrictions are put in place at the local water supplier level,” Nielsen-Gammon said, per the Midland Reporter-Telegram. “There may need to be certain things done with respect to the state law, such as changing how groundwater supplies can be managed or changing the way in which water priority is determined, but the specific management decisions will take place at the local level."

For more on water rights policy and politics, visit Water Online's Regulations & Legislation Solution Center.