Water Is Bigger in Texas; State Board Control Scaled Back

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Several weeks ago, a Texas appeals court issued an opinion that scored a major victory for environmentalists and might just change water conservation in Texas.

Issued by the Eleventh Court of Appeals in Eastland, Texas, Texas Water Development Board v. Ward Timber, Ltd., made strange bedfellows of environmentalists, private business owners, and advocates of more local, decentralized control over water planning and conservation.  

Like many things, water is bigger in Texas, and it only looks to loom larger over policy scape for the next several decades.  

To see how, read below the jump. According to the U.S. Census Bureau, in 2012, Texas had eight of the 15 fastest-growing large cities in the nation.  The TWDB's own figures project that the state population is set to climb 82% between 2010 and 2060 – to more than 46 million people – and water demand along with it.  Essentially, there are many people, with more on the way, and a limited supply of water, and a limited number of viable solutions to work it out.

Hinging on a thorough reading of the Texas Water Code and the Texas Government Code, as well as strict adherence to administrative procedure, the case appears to have saved various ecological zones, and asserted the authority of Texas courts over such matters while seriously chipping away at the authority of the Texas Water Development Board (TWDB or “Board”).  

The case arose from a dispute in 2010 when Region C and Region D submitted their respective water plans for 2011 to the TWDB.  Texas employs a bottom-up approach – rather than a top-down approach – to water planning. This way, localities decide how much water they need and the best way to obtain it; barring any interregional conflicts, the TWDB signs off on these plans, and they become part of a statewide plan.  Region C includes the Dallas-Fort Worth metropolitan area; Region D includes Longview, Texarkana, and Greenville.

The Region C plan called for the construction of a reservoir within Region D.  They had tried this in 2007, and Region D had objected.  Region D objected again; the reservoir plan would have flooded approximately 70,000 acres, hurt timber and ranching businesses, devalued private property, and resulted in an agricultural loss of up to 200,000 acres.  Even the United States fish ad Wildlife Service had weighed in, as had Luke Metzger, Director of Environment Texas:

“The current State Water Plan would force east Texas to accept a reservoir they don't want, flooding 72,000 acres of family ranches and ecologically important forests.”

In 2010, Region D objected, citing an impermissible interregional conflict.  Section 16.053 of the Texas Water Code only allows a plan to go forward after it has been determined that:

“[T]he plan “is consistent with long-term protection of the state's water resources, agricultural resources, and natural resources as embodied in the guidance principles adopted under Section 16.051(d).”  

The statute further requires a dispute resolution process between regions if one of them objects.  The board must facilitate it, and if the dispute cannot be resolved that way, the Board may step in and resolve the issue itself.  That didn't happen here.

In response to Region D's 2010 objection, the TWDB did not facilitate the process. Rather, it ruled that there was no interregional conflict.  This suit followed.

The TWDB argued several things, including that the plaintiffs had no injury, and therefore, no standing.  The district court, and then in this opinion, the appeals court, disagreed, laid out the injuries resulting from the reservoir water plan, and then proceeded to scale back the authority of the TWDB.  

First, from flooding, the timber company would lose its primary resource – wood.  The ranchers would lose their land, and other private property owners stood to lose their ability to borrow money based on the land and its value, or make other investment decisions.  Second, the court wrote that the TWDB's failure to resolve the interregional conflict constituted an injury itself.  

The court further wrote that the landowners' injury accrued not at the permitting process, when inertia and dedicated funding would already be on the side of constructing the reservoir, but much earlier in the process, when the planning actually occurred.  The court grounded this in the intent of the legislature, and then went on to make two collateral swipes at the Board: 1) if they Board had simply engaged in the legislatively-mandated process at the start, the problem would already be solved; and 2) a reviewing court owes no deference to the Board's decisions involving the interpretation of clear statutory language.

The final decision is unclear at this point.  Although the court did not tell the Board how to rule, the court did circumscribe the authority of the Board in how it resolves interregional conflicts.  It also presented a clear picture of the issues it considers to present an impermissible conflict in reconciling the regional water plans, as well as what constitutes an injury to the environmental and business stakeholders.  

Metzger weighed in:  

“We hope TWDB eliminates it from the State Water Plan, protecting our forests and local control.”

Time will tell.

The opinion may be read here.

The plans at issue are the plans for Region D; Region C; and all of Texas.

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