Relating to the applicability of the law governing emergency authorizations by the Texas Commission on Environmental Quality for the use of state water to certain emergency orders.
Summary: In Texas, the Texas Commission on Environmental Quality (TCEQ) issues, manages, and upholds surface water rights. Surface water rights are issued under the Prior Appropriation system, which follows a rule of "first in time, first in right" (i.e. older water rights are given priority over more recent water rights in case of conflict). Recent drought conditions led the Legislature to pass legislation during the last legislative session extending TCEQ's authority to curtail water rights in emergencies. In 2011, TCEQ invoked this authority to curtail senior water right holders prior to several municipalities, citing health and safety reasons. Water right holders are currently challenging TCEQ's action, claiming that it undermined the prior appropriation system and in so doing took their vested water rights. HB 2720 would clarify TCEQ's authority to act in such a situation, and would set up a system for compensation to the senior water right holders.
Analysis: This legislation is premature. Litigation involving the authority of TCEQ to curtail senior water rights in an emergency situation is currently being adjudicated, and should be resolved before further legislative action is taken. While some emergency authority is necessary, any action that would undermine the Prior Appropriation system and the vested private property rights in surface water should be avoided. In addition, while HB 2720 does provide for compensation to the senior water right holders in cases where their water rights are curtailed, liability for this compensation accrues not to the state but to other water right holders.