practicable, conforms to the order of preferences established by Section 11.024; and (6) does not
require the release of water that, at the time the order is issued, is lawfully stored in a reservoir
under water rights associated with that reservoir.”
The statute required TCEQ to adopt rules implementing it, including rules defining a
drought or emergency shortage for purposes of statute and rules specifying the conditions under
which the Executive Director may issue a curtailment order, the terms of the order, including its
maximum term, and providing notice and an opportunity for hearing on the order.
these rules on November 4, 2011, and received more than thirty written comments on nearly every
section of the new rules. TCEQ adopted the new rules effective May 3, 2012.
The new rules allow the Executive Director to issue a curtailment order if: (1) all or part of the river
basin is in a drought, or an emergency shortage of water exists; (2) senior water rights are unable to
divert the water they need or store inflows that are authorized under a water right; (3) one or more
senior water right holders who will benefit from the order can beneficially use the water they will
be able to divert or use under the order; and (4) suspending or adjusting junior water rights would
result in conditions under which the senior water right holder may divert water or impound inflows
under its water right for a beneficial use.
The rules also give the Executive Director the power to not
suspend a junior water right based on health, safety, and welfare concerns.
Farm Bureau lawsuit.
On November 14, 2012, Dow Chemical Co., which owns the most senior
and downstream water rights in the Brazos River Basin, made a priority call on junior water rights
in the basin. Five days later, the TCEQ Executive Director issued a suspension order under the
new TCEQ rules. The order temporarily suspended diversions under 845 water rights issued after
February 15, 1942, below Possum Kingdom Lake, but exempted rights to use water for municipal or
power generation purposes from the call, as previous curtailment orders had done.
On December 14, 2012, the Texas Farm Bureau, along with two of its members, filed suit against
the TCEQ in state district court in Travis County. The Farm Bureau argued that the TCEQ curtailment
rules were invalid and exceeded TCEQ’s statutory authority because Section 11.053(a) provides
that all suspensions or adjustments shall be in accordance with Section 11.027, which provides
that as between appropriators, first in time is first in right, and the rules allow the Executive Director
to deviate from the priority system, as he did in the Brazos River Basin order.
On June 26, 2013, the district court entered a judgment in favor of the Farm Bureau, holding that the
TCEQ curtailment rules “are invalid and exceed TCEQ’s statutory authority because they allow deviation
from the priority system and the exemption of water rights for preferred uses from a curtailment or
suspension order.” TCEQ appealed the trial court judgment to the Austin court of appeals, but the
Supreme Court transferred the case to the Thirteenth Court of Appeals in Corpus Christi and Edinburg.
The Thirteenth Court heard oral argument in this case on April 24, 2014 in Austin.