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15

Surface Water Use Curtailments in Drought

In 2011, 2012 and 2013, in response to the severe drought in much of Texas, TCEQ began curtailing

diversions under surface water rights. For example, between May and August 2011, TCEQ issued a series

of “priority calls” on junior water rights that eventually suspended diversions under all water rights with a

priority date of 1960 or later in a large portion of the Brazos River, except rights to use water for municipal

and power generation purposes until January 27, 2012. On July 5, 2011, TCEQ suspended diversions under

all water rights with a priority date of 1950 or later in the Llano River basin upstream of the City of Llano,

except rights to use water for municipal and power generation purposes. This curtailment was in response

to a priority call from the City of Llano. This suspension ended on October 31, 2011. On August 8, 2011,

TCEQ suspended diversions under all water rights in Menard and Schleicher Counties in the San Saba River

basin with a priority date of 1900 or later, except rights to divert water for municipal and power generation

purposes. The suspension ended on February 7, 2012. On July 2, 2013, TCEQ suspended all water rights with

a priority date of February 14, 1942 or later downstream of Possum Kingdom Lake in the Brazos River Basin,

including some unused or unneeded rights to divert water for municipal and power generation purposes.

This suspension ended on October 8, 2013. There are no outstanding TCEQ curtailments at this time.

New Water Code § 11.053.

During 2011, while these TCEQ curtailments were occurring, the Legislature

adopted a statute that expressly permitted TCEQ Executive Director to implement curtailments during

droughts. Section 11.053 of the Texas Water Code, which became effective on September 1, 2011, provides

that, during a period of drought or emergency shortage of water, the TCEQ Executive Director may, “in

accordance with the priority of water rights established by Section 11.027,” temporarily suspend or adjust

diversion under a water rights.

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Section 11.027 provides that: “As between appropriators, the first in time is

the first in right.”

Under the statute, the Executive Director must “ensure” that any action taken: “(1) maximizes the

beneficial use of water; (2) minimizes the impact on water rights holders; (3) prevents the waste of water;

(4) takes into consideration the efforts of the affected water rights holders to develop and implements the

water conservation plans and drought contingency plans required by this chapter; (5) to the greatest extent