Wednesday, July 10, 2013

Court to Texas Water Planners: The Law Matters

A recent Texas Court of Appeals ruling could result in some major changes in how Texas develops its State Water Plan.  The suit was  brought by Ward Timber and a number of East Texas landowners who challenged the 2012 decision by the Texas Water Development Board (TWDB) to approve the Region C regional water plan. The Court reversed this approval after ruling that TWDB can be sued if it does not follow and enforce the law and rules applicable to Texas water planning.    
This result should lead to a more sustainable and realistic water planning process.

The dispute focused initially on the challenge to TWDB’s approval of the regional plan for the Dallas-Fort Worth area.   The Region D plan for Northeast Texas identified a Region C water strategy that conflicted with the Region D plan. 
The conflict centered on the proposed Marvin Nichols Reservoir, on the Sulphur River in Region D.   The Region C plan included the proposed reservoir as a long-term water supply strategy for the Metroplex area.  Region D’s plan, however, expressly stated that the proposed reservoir conflicted with its plan,  which included the finding that a reservoir at the proposed location would destroy  important agricultural and natural resources that Region D intended to protect. 

The identification by one region of a potential interregional conflict is authorized, if not required, by Texas law at Section 16.053(h) of the Texas Water Code.  If such a conflict exists between two regional plans, TWDB is required by that same portion of the Code to bring the regions together in an effort to find a resolution.  If that is not successful, the law then requires that TWDB itself resolve the conflict. 
At the outset, TWDB argued that it could not be sued for its decision to approve a regional plan because these were just “plans” with no immediate effect. TWDB  also argued that there was no interregional conflict.

The Court’s May 2013 opinion upheld a lower court ruling, reversing the TWDB’s approval of the Region C plan.   The Court held that:
·         TWDB can be sued for failure to comply with Texas law or its rules on water planning;
·         The TWDB decision to approve the 2011 Region C plan violated Texas law; and

·         TWDB’s definition of  interregional conflicts as limited to instances where two regions relied on the same water to meet proposed demands was inconsistent with Texas law.

TWDB’s deadline to appeal to the Texas Supreme Court has now passed, so the Court’s holding stands.  It will be an important precedent for future water planning efforts, as well as for the current dispute between Regions C and D over the proposed Marvin Nichols Reservoir.

The Ward Timber decision provides valuable guidance and benchmarks for on-going water planning efforts.  While the Texas water plan is reasonably viewed as a “bottom-up” effort, it has to also reflect the broader state interests.  It has become increasingly clear over the last few planning rounds that more state level engagement is needed.  As reflected in HB 4, passed this year by the legislature, state funds need to be spent on strategies that are priorities for both the regions and the state.  The state needs a water plan that reflects a realistic future and that can be implemented in a cost-effective and environmentally-sound manner.  
State level engagement can come in many forms, but one important avenue  is TWDB rules and guidance implementing the statutory requirements for planning. The Ward Timber case holds that the regions and TWDB need to take those rules seriously.  The Court upheld Region D's position that state water planning law allows it to protect its important agricultural and natural resources, even as the state seeks to meet municipal and other needs for water now and in the future.

TWDB rules can be used to set rational boundaries on the regional planning process, as envisioned by the statutory language in Section 16.053 of the Texas Water Code.  For example, TWDB’s current planning rules seek to establish consistent methods by which all regions project certain future water needs.  If a regional group does not comply with these or other elements of the rules, TWDB needs to enforce them by disapproving all or a part of the regional plan.  The Ward Timber case holds, in essence, that if TWDB does not do so, a court could invalidate the TWDB's decision to approve the regional plan.   
Thus, Ward Timber case has implications beyond the Region C and D conflict.  While resolution of that conflict will likely happen one way or another in the next six months to one year, the other aspects of the Court decision can affect all 16 regional planning processes for this next round and into the future.  Given the lack of attention in past rounds of planning to certain aspects of the legal requirements, such as protection of natural resources and environmental water needs, the Ward Timber case may also send a clear message that all aspects of the planning process established in the law and TWDB rules need to be addressed in the 2016 round of regional plans.

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