U.S. Supreme Court Will Hear Texas-Oklahoma Water Case

       

   by Kate Galbraith, The Texas Tribune            

                           January 4, 2013                      

     
   
 
   

The U.S. Supreme Court will hear a major cross-border water case that pits Tarrant County against the state of Oklahoma, according to a court order published Friday.

Fast-growing North Texas would like to buy water from Oklahoma reservoirs, but the Sooner state isn’t selling. So Tarrant County sued six years ago.

The court’s decision to take up the case, Tarrant Regional Water District v. Herrmann, Rudolf J. et al, will come as a welcome news to North Texas officials, who had lost in the lower courts. Last January, the water district requested that the Supreme Court hear the case.

The Tarrant Regional Water District gets "another chance to make their arguments before the highest court in the land and try to convince them that they should be able to obtain this water," said Gabriel Eckstein, a professor at Texas-Wesleyan School of Law and an attorney with the firm Sullivan & Worcester.

The two states are part of the 1980 Red River Compact, which stipulates that signatory states get an “equitable” share of water. The Tarrant County officials say they want water flowing south out of Oklahoma, but that by the time the water reaches Texas it is essentially unusable, so they want to tap the reservoirs further upstream. Oklahoma state lawmakers have declined their request.

The U.S. solicitor general had recommended that the court take the case. But that recommendation was based on narrow grounds related to contract interpretation, according to Eckstein. "The question is going to be whether the court accepted on the narrow issues that the U.S. Solicitor-General recommended, or just broadly on all issues addressed by the lower court," he said.

A broader ruling could have implications for the few dozen other interstate water compacts around the nation.

According to SCOTUSblog, “the court is expected to use the case to clarify the right of a state to claim its share of a water rights compact from the waters of the shared river as it flows through a neighboring state.”

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This article originally appeared in The Texas Tribune at http://www.texastribune.org/texas-environmental-news/water-supply/texas-oklahoma-water-case-be-heard-supreme-court/.

Texas Co-op Power Magazine - Texas Stories: Water Is Life - An Online Community for Members of Texas Electric Cooperatives

Texas Co-op Power Magazine - Texas Stories: Water Is Life - An Online Community for Members of Texas Electric Cooperatives

Prism Risk Management Blog

Check out the new post on the Prism Risk Management Blog: Water Scarcity Means Risks for the Enterprise and Public Sectors.  If you're interested in recent actions of the LCRA or the Texas Water Development Board, this is a good post to read.

Texas' Water Rights System Gets Tested in Drought

by Kate Galbraith, The Texas Tribune

12 hours ago

Earlier this month, the Texas Commission on Environmental Quality issued a notice to a handful of East Texas groups in the Sabine River Basin: Their rights to river water will be suspendedbecause a hunting and fishing club needs more water. The club's right to water predates the others' rights — literally.

The Sabine River notice is the latest development in what experts say is an unprecedented tug of war between surface water rights holders. Texans with more "senior," or long-standing, water rights can tell the TCEQ that they need more access to water, trumping "junior" rights holders along the same river, who may see their water use limited. And when drought makes water scarce, those senior rights prove to be critical.

"In modern history, at least as long as I've been paying attention, this is the first time it's really come to the fore," Russell Johnson, of the law firm McGinnis, Lochridge & Kilgore, said of the junior-senior system.

The oldest Texas water rights were claimed in the 18th century. "We have water rights that date all the way back to when Texas was a colony of Spain," said Andrew Sansom, executive director of the River Systems Institute at Texas State University.

Droughts in the recent past have triggered some "senior calls," but nothing like the current numbers. In 2011 there were 15 senior calls, according to Bryan Shaw, chairman of the TCEQ, in testimony before the Legislature last week. By contrast, only one such call occurred in 2009, another drought year.
All told, Shaw testified, more than 1,200 water rights permits in Texas have been suspended or curtailed recently, with the effects felt in the Brazos, Guadalupe, Colorado, Sabine and Neches river basins. With 99.5 percent of Texas still in drought as of last week, and with many reservoirs and rivers not replenished by the recent rains that have soaked into the thirsty soil, the junior-senior struggles could continue.

Groundwater, which is managed separately, is not on a junior-senior system.
Some groups have concerns with surface water hierarchy. "I got a few calls from industrial users who were adversely affected by this," Johnson said.

The recent decision in the Sabine River Basin will mean less water for a Wood County flood control project, as well as several groups who use water for recreational purposes and two individuals who use it for irrigation, according to the Longview News-Journal.

In the Neches River Basin, a range of water users has been affected, according to Andrea Morrow, a TCEQ spokeswoman. "Water rights that were completely curtailed included recreational uses, agricultural irrigation, industrial, and mining uses," she said.

The Texas system is not unusual. Doctrines of "first in time, first in right" are "almost universal west of the Mississippi," Johnson said. And the system has pros and cons, he noted. On the one hand, it protects people who have already been on the land against newcomers taking water the early birds had been counting on. On the other hand, the importance of the use is not taken into consideration.

Some changes are under way. Recently, the TCEQ decided that water rights holders couldn’t trump cities or power plants. This ensures that the taps keep running and power stays on. However, the TCEQ can ask cities that are "junior" to mandate outdoor watering restrictions. (This may have caused some of the confusion in the Hill Country town of Junction last summer, which thought it had to ban all outdoor watering after a senior call from the downstream city of Llano but later was able to ease off.)
"Sunset" legislation last year reauthorizing the TCEQ and its mission contained a provision that allows the agency to suspend or make changes to the water rights system during times of drought. Comments on a proposed rule to implement the law closed last month — and it's something the Texas Farm Bureau is watching closely, said Billy Howe, the bureau's representative in Austin.

Sansom, of Texas State, says that another classic example of "oldest first" is the struggle in Central Texas between rice farmers, growing cities like Austin and residents of the severely depleted Highland Lakes (though this system, managed by the Lower Colorado River Authority, goes beyond and is more complex than the "junior-senior" rights hierarchy overseen by TCEQ). Rice farmers have been using Colorado River water since the 19th century, even before the Highland Lakes were created — and in normal years a few hundred farmers use more water than the city of Austin.

Speaking about both the LCRA situation and the junior-senior rights system, Sansom said, "It is probably time, based on the fact we're still using a system that is hundreds of years old, to update it to reflect modernity."

This article originally appeared in The Texas Tribune at http://www.texastribune.org/texas-environmental-news/water-supply/texas-water-rights-system-gets-tested-drought/.

Texas Policy: Water Rights

Will Water Rights Be on the Legislature's Agenda?

by Kate Galbraith, The Texas Tribune
November 17, 2010

Next legislative session, during the few minutes not taken up with the budget, redistricting and immigration, an old stand-by of an issue could creep onto the agenda: water.

Observers say legislative proposals on groundwater rights are probable, given that Texas is just wrapping up a controversial process for planning the allocation of water from aquifers, while environmentalists will be pushing more measures for water conservation. The discussions will be amplified because the Texas Water Development Board, which finances water and wastewater infrastructure projects around the state, is up for review by the Sunset Advisory Commission, as is the Texas Commission on Environmental Quality, which regulates water pollution.

Water "should be an important issue in this next session," says Russell Johnson, a water law expert with the McGinnis, Lochridge & Kilgore law firm who has done work for the Texas and Southwestern Cattle Raisers Association and the Texas Wildlife Association on groundwater-related matters. However, he adds, "whether it will be or not in light of all the other things that are happening this legislative session is an open question."

Last session, one of few notable water-related bills to pass was was a conservation bill carried by state Rep. Allan Ritter, D-Nederland, thattightened water-efficiency requirements for toilets sold in Texas, as well as for faucets or shower heads. (The only other state to enact similar requirements for toilets is California.)

The biggest water issue before the Legislature is likely to be balancing the long-term health of Texas' aquifers with property rights. The state has just completed an intensive planning process, established by the Legislature in 2005, in which local authorities decide how much they will allow their aquifers to be depleted in 50 years (the resultant numbers are called the "desired future conditions" of the aquifers). The Texas Water Development Board is processing these aquifer-depletion numbers and will soon send back to local authorities calculations on how much water per year they can draw down, given their 50-year outlooks.

But some groups are unhappy about the planning process and may well urge legislation amending it. In particular, water marketers — entities seeking to gather groundwater rights and sell water in bulk to thirsty municipalities — say their property rights have been abridged, because their potential use of the aquifers was not taken into account in the 50-year plans.

Existing legislation "does not provide for a dispute resolution process," says Joel Katz, a manager of End-Op, a water-marketing firm that wants to sell water to the fast-growing Interstate 35 and Highway 130 corridors. End-Op is currently battling the Lost Pines groundwater conservation district around Bastrop for the right to do so. (Johnson also represents End-Op's interests.)

The Sunset Advisory Commission's report on the Water Development Board, released this month, seems to agree that a remedy is needed. As it stands, the groundwater planning process "does not provide for a complete administrative process that ensures the basic elements of due process," the report states. Currently, Katz says, the only option for filing an objection is the relatively mild step of complaining to the Water Development Board, which can then ask local authorities to reconsider their plans.

Legislation on other aspects of the groundwater-planning process could also be forthcoming. A group called the Texas Water Conservation Association has been working to bring together a range of water interests — cities, river authorities, industry consultants — to reach consensus on desired improvements to the groundwater management process. Several areas of agreement have been reached, according to Dean Robbins, the group's assistant general manager — including, for example, how information about the process gets published.

The Sunset Commission staff report also calls for better coordination among various authorities involved in the groundwater-planning process. And other possible groundwater-related legislation hinges on the long-awaited outcome of Edwards Aquifer Authority v. Day, currently pending at the Texas Supreme Court, which will weigh the balance between landowners' rights to water beneath their land and the authority of groundwater authorities to regulate it.

Besides groundwater planning, conservationists will also be putting forward proposals next session. Among them: remedying municipal water-conservation reporting requirements, which currently do not adhere to a common standard, thus making it hard for the state to judge the success of conservation efforts. State Sen. Florence Shapiro, R-Plano, has already filed a bill on on the subject, and the Sunset report recommends making this change.

Another bill would require most water utilities to audit their water losses (from leaky pipelines or other glitches) each year, as opposed to the current requirement of every five years. A bill to do this was pushed last session by state Rep. Tara Rios-Ybarra, D-Padre Island. But it "got lost in muddle," says Carole Baker, the Texas-based chairwoman of the national Alliance for Water Efficiency (Rios-Ybarra was beaten in the March primary). Legislation to encourage rainwater harvesting was also introduced last session by Rep. Doug Miller, R-New Braunfels, and defeated state Rep. Patrick Rose, D-Dripping Springs; rainwater's backers could try again.

Then there is Sunset. Unlike other agencies subject to Sunset review, the Texas Water Development Board will not be automatically abolished if Sunset legislation is not passed. But the Sunset process will increase scrutiny of the agency, which, as the report notes, is "not accustomed to being square in the eye of controversy" but is currently in the crossfire of concerns about its groundwater-planning process.

The Water Development Board also badly needs something else from the Legislature to keep it going: up to $6 billion in bond-issuance authority, money that will go toward projects like fixing sewer systems or keeping tap water safe, as well as assisting small rural water utilities. The board generally has to request the money (not its only source of funding, but its largest) every few years, and current bond money "may be exhausted as soon as the end of fiscal year 2011," according to the Sunset report. Any bonding authority must also be approved by voters and will presumably be on the ballot next November.

But getting bonding authority approval is "going to be semi-controversial," says Ken Kramer, the Texas director of the Sierra Club. The reason is that, unlike past bond issues, the Water Development Board is requesting up to $6 billion in permanent, or "evergreen" authority — meaning that, unlike in the past, it will not need to keep going back to the voters unless truly vast sums are needed. "That is something that many of us have a problem with because it takes away one layer of accountability," Kramer says. The environmental community, he says, is "probably going to be in opposition to the evergreen provision."

This article originally appeared in The Texas Tribune at http://trib.it/9Du3oZ.