Judge sides with farmers in state water fight

A Travis County judge ruled Thursday that the Texas Commission on Environmental Quality overstepped its authority when it withheld water from farmers along the Brazos River last year.

Judge Scott Jenkins said the state agency is not authorized to exempt cities and power plants with water rights younger than those of farmers from suspension orders in times of drought.

The ruling was a blow to TCEQ, which had argued that public health, safety and welfare were at play when it cut off hundreds of farmers.

Kenneth Dierschke, president of the Texas Farm Bureau, which sued the agency to get the farmers' water back, said the decision is "a victory for property rights in Texas."

Dow Chemical case

The case put to test the state's generations-old system for appropriating water: First come, first served.

The issue surfaced last November when the Dow Chemical Co. told TCEQ that it could not draw the water it needs and is entitled to because of the Brazos River's low flow. The company operates a massive manufacturing complex where the river empties into the Gulf.

TCEQ responded to Dow by suspending the more recently issued, or junior, water rights from Possum Kingdom Lake, about 80 miles northwest of Fort Worth, to the Gulf for six months. The order took the extra step of exempting cities and power producers, meaning most of the water the chemical maker required would come from farmers.

No one disputed the chemical maker's rights, which date to the 1920s. The legal question was whether TCEQ may consider factors beyond seniority when deciding who gets water first in times of shortage.

The order left more than 700 farmers without water for irrigation, while dozens of others with junior rights, including the cities of Houston and Waco and NRG Energy, were not restricted. TCEQ later revised the order to restore water to the farmers, but they continued with the suit, saying the agency should have compensated them.

"Clearly, TCEQ overstepped its bounds in failing to compensate these senior holders for the loss of their property rights," Dierschke said.