The Texas Commission on Environmental Quality's (TCEQ's)
proposed rules regarding the Executive Director's suspension or
adjustment of water rights during drought or emergency water
shortage were published in the Texas Register on November 4, 2011.1
This rulemaking implements House Bill 2694, Section 5.03, 82nd
Legislature, 2011, Regular Session. Areas served by a watermaster
are exempt from the rules.
These proposed rules define "drought" and "emergency
shortage of water," as well as other terms; provide that the
Executive Director may issue an order for the temporary suspension
or adjustment of junior water rights during a drought or emergency
shortage of water; and set out the conditions that must apply.
Consistent with the statute, the rules expressly provide that the
state's priority doctrine will still govern, but the other
factors set out in the bill also may be considered in deciding
which water rights should be suspended or adjusted. Notably, the
adjustment or suspension must follow the preference of uses in
Texas Water Code § 11.024 "to the greatest extent
practicable." The proposed rules raise concerns regarding the
protection of junior water rights for reasons other than
traditional health and safety notions of public welfare. The
comment period remains open until December 5, 2011. TCEQ will hold
a formal public hearing on December 1, 2011. The anticipated
adoption date for the final rule is April 2012.
The commission proposes that a "drought" occurs either
when (1) conditions in a watershed or part of a watershed are
classified as at least moderate by the National Drought Mitigation
Center; (2) streamflows at United States Geological Survey gauging
stations are below the 33rd percentile of the period of record; or
(3) demand for surface water exceeds the available supply. Note
that at present, over 90 percent of the State of Texas is
classified as "extreme drought" or worse. TCEQ indicates
that its intent is to have a "bright line" test that
indicates when a shortage of precipitation has resulted in a
shortage of water available for all existing water rights. This
definition is based on scientific data, but also includes times of
drought that are not as extreme, but are still causing shortages
that could adversely impact senior water rights.
"Emergency shortage of water" is defined as the inability
of a senior water right to take surface water under circumstances
during emergency periods posing a hazard to public health, safety,
the environment, or economic welfare. TCEQ intends that this
definition include emergency conditions that are not necessarily
the result of drought.
During a "drought" or other "emergency shortage of
water," the Executive Director can suspend or adjust (e.g.,
partially curtail or time the diversions) water rights. Caveats in
the proposed rule indicate that the Executive Director's action
must be "in accordance with the priority doctrine in Texas
Water Code § 11.027" and impose the temporary measure
"on water rights in the smallest area practicable." But
there are additional "conditions for issuance of a Suspension
or Adjustment Order" that add ambiguity to what the Executive
Director might actually do with respect to the priority doctrine.
The Executive Director's order must (1) maximize the beneficial
use of water; (2) minimize the impact on water rights holders; (3)
prevent the waste of water; (4) consider the efforts of the
affected water rights holders to develop and implement water
conservation and drought contingency plans; (5) to the greatest
extent practicable, conform to the order of preferences established
by Texas Water Code § 11.024; and (6) not require the release
of lawfully stored water in reservoirs. The highest preference of
use established by § 11.024 is for domestic and municipal uses
above industrial and agricultural uses.2 In its takings
analysis, TCEQ notes that "this consideration of preferences
would generally be to allow some water rights, such as
municipalities, to continue to take water under their water rights
as needed for human health and safety concerns such as drinking
water, or similar actions," implying, but nowhere in the rule
committing to, a health and safety threshold. Many municipal water
systems rely heavily on their revenue streams from water sales and
consumption and may attempt to make the most of this regulatory
ambiguity. Numerous commenters at TCEQ's August public meeting
requested clear implementation of prior appropriation or a system
of compensation if senior rights are compromised based on preferred
use, neither of which is reflected in the proposed rules.
As for the logistics, an order may be issued by the Executive
Director without notice and hearing, but a hearing must be held as
soon as practicable before the Commission to affirm, modify, or set
aside, with notice to all water rights subject to the Executive
Director order. An Executive Director order may not be effective
for longer than 180 days "unless otherwise specified in a
Suspension or Adjustment Order," meaning there is arguably no
limit on the duration of the Executive Director's order under
the proposed rules. An order can be extended for 90 days per
extension, for any number of extensions, and may be modified to
account for changed conditions. The rules do not provide for notice
in the event that the Executive Director is asked to modify or
extend an order.
According to meteorologists, the present drought is expected to
persist for months and many areas of the state are already
experiencing conditions worse than the peak years of the drought of
record. As many water rights holders already have seen senior calls
on various rivers, the final version of these rules is expected to
see significant action immediately upon adoption starting in the
spring of 2012. In the meantime, clarifications about the duration
of conditions to meet the definition of drought, and parameters or
specific conditions that might justify a departure from strict
prior appropriation are just a sample of the avenues ripe for
comment while the opportunity remains open.
Footnotes
1 36 Tex. Reg. 7417, 7463 (Nov. 4, 2011).
2 The order of preference is: (1) domestic and municipal uses; (2) agricultural uses and industrial uses; (3) mining and recovery of minerals; (4) hydroelectric power; (5) navigation; (6) recreation and pleasure; and (7) other beneficial uses. Texas Water Code § 11.024.
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