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Latest Development on Brazos River Senior Water Rights Call
Thursday, August 29, 2013

Water rights seniority and priority of uses continue to be active issues affecting the Brazos River system.  In November 2012, the senior water rights holder on the Brazos made a priority call, asserting it could not obtain all of the water it was entitled to due to diversions by upstream users.  TCEQ responded with an order suspending all junior water rights on the Brazos except for municipal users and power generation.  The Texas Farm Bureau sued, challenging TCEQ’s authority to issue the order pursuant to the State’s drought curtailment rules.  Although the TCEQ lifted the curtailment in January 2013, the litigation was not mooted.

On June 6, 2013, a bench ruling from the Travis County district court granted the Farm Bureau’s motion for summary judgment, finding that TCEQ’s drought curtailment rules exceed the agency’s authority by allowing deviation from the water rights seniority system and exempting certain preferred uses. TCEQ appealed this ruling to the Third Court of Appeals, which suspended the bench ruling pending appeal. The Farm Bureau sought but was initially denied a remand to the district court to hear evidence on the alleged impact the suspended order would have on at-risk crops. However, the Thirteenth District Court of Appeals recently remanded the matter to the trial court for an evidentiary hearing on whether the order restricting TCEQ action under the drought curtailment rules should be suspended pending appeal.

Amidst these controversial legal proceedings, on June 26, 2013, the Brazos River senior water rights holder again issued a priority call, and TCEQ again responded on July 2, 2013 with a similar suspension order, curtailing junior water rights except for municipalities and power generation. Along with the case The Aransas Project v. Shaw discussed in the first article above, the Brazos River situation continues to be a key case to watch regarding the impact of limited water supplies and competing uses during Texas’ ongoing drought conditions.  

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