United States: Marshall And The Four Corners Doctrine: 10 Years After

Last Updated: September 14 2016
Article by Martin Rochelle and Nathan Vassar

This year marks the 10th anniversary of the Texas Supreme Court's decision in Marshall v. Uncertain, 206 S.W.3d 97 (Tex. 2006), where the court squarely identified the factors to be considered by the Texas Commission on Environmental Quality ("TCEQ") in its assessment and approval of certain water right amendments, and thus by applicants in their preparation of amendment applications. Following that decision, TCEQ implemented a stakeholder process to define a procedural protocol for implementing the court's direction. Thereafter, TCEQ Commissioners took quick action to approve several applications involving the most prevalent types of amendments, and without notice or the opportunity for expensive, time-consuming hearings. Since then, many dozens of amendments to water rights have been issued by TCEQ following the agency's review, and without the requirement of notice or the opportunity for a contested case hearing.

To date, our water supply planning series has focused on the value of water supply audits to identify supply shortfalls and prioritize needs, and the availability of exempt interbasin  transfers ("IBTs") to enable the provision of water supplies across river basin boundaries. Like the exempt IBT approach, the "Four Corners" or "Full Use" doctrine assessed by the Texas Supreme Court in Marshall can, if implemented appropriately, afford water suppliers an avenue to maximize their use of existing water supplies without the risks of protests or hearings. The doctrine is a product of statutes, case law, and agency action, and as such, its benefits become available by framing water right amendment applications in a manner that honors the doctrine's historical and legal foundations.

The requirement that water right holders secure amendments has evolved, beginning with case law dating to the 1940s. In Clark v. Briscoe Irrigation Co., 200 S.W.2d 674, 684 (Tex. Civ. App.—Austin, 1947, no writ), the court determined that one of the TCEQ's predecessors, the Texas Board of Water Engineers, maintained jurisdiction over changes of purpose and place of use by water right holders. The current statute addressing amendments to water rights (Texas Water Code § 11.122(b)) incorporates the "Four Corners" doctrine. It provides that certain amendments "shall be authorized" if specific requirements are met. These provisions reflect policy enacted in 1997 via Senate Bill 1, where the Legislature directed TCEQ to authorize certain water right amendments – those that did not propose to enlarge the diversion right or increase the rate of diversion, and did not cause adverse impacts to other right holders or the environment of "greater magnitude" than if the base water right (without the amendment) were "fully exercised." In short, the Legislature directed, and the Supreme Court subsequently confirmed in Marshall, that certain water right amendments are not subject to notice and hearing requirements if the amendment would not pose any greater impact to other water rights or the environment than if the pre-amendment right were fully used.

The statutory and judicial history of "Four Corners" has certainly informed TCEQ practice in the decade since the Marshall decision. If applicants for amendments are to avail themselves of the opportunity that Four Corners affords, they must frame their applications to address statutory requirements related to a host of "limited public interest" factors, including conservation, beneficial use, and consistency with state and regional water plans, and they must also address possible impacts of the proposed amendment "irrespective of the full use assumption." Needless to say, the construction of amendment applications since Marshall has demanded a thoughtful approach.

The scope of water right amendments that are candidates for the "Four Corners" treatment continues to evolve, as new amendment applications are presented to and considered by TCEQ. Among the amendments that are currently available for streamlined actions by TCEQ are applications to: (1) cure ambiguities in a water right; (2) change the place or purpose of use of a water right; (3) move a diversion point when there are no interjacent water users between the existing and proposed diversion locations; and (4) increase rates and/or periods of diversion from storage reservoirs. Depending on a variety of factors, including location, other non-noticed amendments may also be secured.

An appropriately crafted amendment application may invoke the "Four Corners" doctrine and take advantage of the benefits afforded through it, if the applicant can demonstrate that it meets the doctrine's statutory requirements, as detailed by the court in Marshall. By framing amendment applications in a manner that avoids the hurdles, costs, and delays that accompany notice and hearing, water suppliers may implement the very purpose of Senate Bill 1 – as quoted in Marshall, to "make better use of existing supplies, . . . encourage conservation, . . . and to encourage systematic water-resource planning." As such, adjusting water rights in order to address current and future service needs through water right amendments that use the "Four Corners" doctrine can be among the most effective water planning tools available to water suppliers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Lloyd Gosselink Rochelle & Townsend, P.C.
Allen Matkins Leck Gamble Mallory & Natsis LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lloyd Gosselink Rochelle & Townsend, P.C.
Allen Matkins Leck Gamble Mallory & Natsis LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions