Recent Priority Calls for Texas Water Rights
In Texas, the Texas Commission on Environmental Quality (TCEQ) administers surface water rights by priority doctrine (first in time, first in right). When a senior water right holder is not getting the water to which it is entitled, it can make a senior water right call and request TCEQ enforcement of the priority doctrine. The drought of 2011 and ongoing drought conditions have challenged the priority doctrine.
In 2011, TCEQ received 15 senior water right calls resulting in the suspension of approximately 1,200 water right permits. Senior water right calls were made in the Brazos, Guadalupe, Colorado, Sabine and Neches River Basins. The following types of water users made senior water right calls in 2011: municipal, industrial, irrigation, recreation, and domestic and livestock. Until the drought of 2011, the TCEQ had never received senior water right calls from municipalities or domestic and livestock users. Also, until 2011, TCEQ had not received a priority call on an interstate river compact (Texas is party to five interstate river compacts and two international treaties that impact water supplies available to Texas). In August 2011, New Mexico took action in federal district court to invalidate the 2008 operating agreement in the Rio Grande Compact. This week, Texas filed a complaint with the U.S. Supreme Court against New Mexico, asking the court “to command New Mexico to deliver water apportioned to Texas under the 1938 Rio Grande Compact between the states of Texas, New Mexico, and Colorado to divide the waters of the Rio Grande.” (Read more about the filed complaint here: TCEQ News Release: Tuesday, Jan. 8, 2013 – New Mexico illegally diverting water apportioned to Texas under 1938 Water Compact)
The water right permits suspended in 2011 were primarily irrigation water rights. TCEQ did not suspend municipal water rights or power generation water rights because of concerns about public health and safety. The intensity and duration of the 2011 drought forced TCEQ to respond to new issues. The priority doctrine was not completely enforced in all situations because of concerns about public health and safety. Consequently, TCEQ developed a new rule regarding the suspension of water rights during drought conditions. The rule-making process included stakeholder meetings and an opportunity for public input. TCEQ developed and adopted Chapter 36 of the Texas Administrative Code, Suspension or Adjustment of Water Rights during Water Shortage on April 11, 2012.
Currently, one water right priority call suspension order is in place in Texas. In November 2012, Dow Chemical Company made a senior water right priority call in the Brazos River Basin. In response, TCEQ suspended junior water rights on the Brazos River Basin with the exception of municipal, power generation and non-exempt domestic use water rights that were determined necessary to protect public health, safety and welfare. Most of the suspended water rights were for irrigation users. In response to the curtailment of only selected junior water rights, the Texas Farm Bureau filed a lawsuit in December 2012 against TCEQ for failure to follow the priority doctrine. The Brazos River Basin has received some rainfall this week, and TCEQ signed an order to temporarily ease restrictions in the Brazos River Basin to allow junior water rights holders to divert or impound water if streamflow measurements reach specified thresholds. (Read more about the decision here: TCEQ News Release: Tuesday, Jan. 8, 2013 – Executive director allows some additional diversions)
Updated: The Texas Commission on Environmental Quality (TCEQ) announced this week that Dow Chemical rescinded its priority call on water in the Brazos River Basin, and junior water rights in the basin can resume diversion of water according to their water rights. (Read more here: TCEQ Lifts Restrictions on Water Rights)