Bickerstaff Heath Delgado Acosta obtained a ruling on behalf of the Texas Farm Bureau and several individual plaintiffs from the Court of Appeals for the Thirteenth District of Texas that affirmed their trial court victory in a case involving the use of water during a drought. In this case, Texas Commission on Environmental Quality v. Texas Farm Bureau et al., No. 13-13-00415-CV, the Court affirmed the district court’s summary judgement order in a suit for declaratory judgment that was rendered in favor of the Texas Farm Bureau. At issue in this proceeding was TCEQ’s authority to promulgate agency Drought Curtailment Rules that exempted junior municipal and power generation water rights from suspension during a priority call while suspending senior irrigation rights, including whether TCEQ’s general authority to protect the public health, safety, and welfare allowed it to do so. The Court found affirmed the district court’s interpretation of the statute authorizing the creation of the Drought Curtailment Rules. It reasoned that the language in Texas Water Code Section 11.053 was unambiguous in its legislative mandate that any TCEQ rules or actions with regard to suspension or adjustment orders must comply with the priority system described in Section 11.027 – that with regard to water rights, the “first in time is first in right.” The Court also affirmed that TCEQ’s general policy power did not allow it to exempt junior preferred uses from curtailment or suspension, holding that statements of the general purpose of a statute may not be treated as implicit declarations of broad authority when the Legislature has elsewhere specifically limited an agency’s authority.
The Court of Appeals’ decision was an important victory for the Texas Farm Bureau, and ensures that senior water rights holders can rely on their water rights in accordance with the long-established prior appropriation doctrine of the State of Texas. Attorneys Douglas G. Caroom and Joshua D. Katz represented the Texas Farm Bureau before the Court of Appeals for the Thirteenth District of Texas and in District Court.