Region O Reverses Course on Irrigation Demand Projections

(Note: this post is also available as a PDF at www.texascenter.org/water/region_o_blog.pdf).

The 2012 State Water Plan projects a statewide demand/supply (needs) gap of 8.325 million acre-feet/year by 2060.  That scary number is often presented as the reason the state needs to fund implementation of the state water plan.

But, when you break it down (see Table 6.1 in the 2012 plan), you see that three regions together account for two-thirds of the gap: 

·         Region C (Dallas/Fort Worth area) with 1.588 million acre-feet/yr;

·         Region H (Houston area) with 1.236 million acre-feet/yr and

·         Region O (Llano Estacado) with 2.366 million acre-feet/yr. 

 

We have explored the over-inflated Region C demand projections elsewhere, and a similar analysis of Region H is forthcoming.  But, today we take a closer look at the 2.366 million acre-feet annual gap projected for Region O, which is over 28% of the total projected statewide gap for 2060.  Not surprisingly, it’s all about the sustainability of irrigation water from the High Plains Ogallala Aquifer.

Region O covers much of the Southern High Plains of Texas.   Irrigation dominates, accounting for 95 % of the total regional use in 2010, or 4.186 million acre-feet/yr.  Virtually all of this irrigation water is supplied by the Ogallala (Figure 1). 

Figure 1.  Ogallala Aquifer from High Plains Water District

Figure 2 shows the various irrigation demand projections for Region O for the current (2017) and past planning cycles.  While these projected demands do decline over time, as discussed below, they do not reflect the constraints on availability of Ogallala water that would be in place with implementation of management systems designed to preserve some aquifer capacity for the future.  The decreasing trend in these demand projections is “due to declining well yields and increased irrigation efficiencies.” (State Water Plan, p 118, Region O Summary).

 

 

 

 

 

Figure 2.  Current and Past Irrigation Demand Projections for Region O

Instead, the effect of water management goals on ground water availability is incorporated into the supply side of the planning process.   For example, the 2011 Region O Plan projected that water supply will decline 56 % between 2010 and 2060 “due to the managed depletion of the Ogallala Aquifer,” with ground water availability decreasing from 3.076 million acre-feet in 2010 to 1.337 million acre-feet in 2060.   

This approach results in the large demand/supply gap, which is theoretically to be addressed with water supply strategies.  But, the 2011 Region O plan projects that advanced irrigation conservation will only be able to provide 479,466 acre-feet/year of water in 2010 at a capital cost of $ 346 million. 

As the 2011 planning process was coming to a conclusion, the regional groundwater conservation districts in Groundwater Management Area 2, were finalizing their desired future conditions (DFCs)for the Ogallala aquifer and beginning to adopt rules to ensure those DFCs could be met.  For the portion of the Ogallala covered by Region O, the central DFC is a 50 % depletion of the aquifer over 50 years.

If the Ogallala is, in fact, to be managed to meet the desired future conditions set by the regional groundwater conservation districts, shouldn’t the projected “demands” reflect that management, thus potentially significantly decreasing the statewide projected demand/supply gap that generates so much attention and paints Texas as a state running out of water?  Put another way, doesn’t showing a huge demand that can never realistically be met undermine the integrity of the planning process?

Region O initially seemed poised to address this important issue in the current round of planning.  Earlier this year, Region O consultants worked with irrigators throughout the region to review the 2017 irrigation demand projections from the Texas Water Development Board.  While the 2017 projections were on average about 500,000 acre-feet/yr less than the projections from the 2011/2012 planning period (Figure 1), they were still far above the ground water availability under the managed depletion scenario reflected through DFC implementation. 

According to the consultant’s July 2013 report (available here as part of the background materials for the Region O August 1, 2013 meeting (pp. 9-12 of draft non-municipal demand Technical Memorandum from  Daniel B. Stephens & Associates, dated July 26, 2013):

The revision to the demand estimates that is proposed here is an attempt to apply the limitations set forth in the DFC process to the demands previously estimated…

Subcommittee meetings with irrigation interests discussed current and future needs of producers and what measures would be required in order to implement the DFC.  The general concern was over the best way to account for real unmet needs, particularly for irrigation, and to continue to show irrigation water shortages.  Under the proposed methodology, the irrigation demand would be set equal to the volume of water that is available in the policy sense for irrigators to use.  This would incorrectly show no unmet needs for the region’s irrigators.

Unmet needs are the impetus for development of a particular water management strategy.  Advanced irrigation conservation, beyond the conservation measures currently being taken, is a water management strategy that would need to be pursued for the region to meet their groundwater conservation goals.  To account for increased conservation, an estimate of conservation volumes was added back into the irrigation demand:

Total irrigation demand = Baseline for irrigation demand + advanced conservation

Thus, the proposed approach was to base the projected irrigation demand on water available under the DFC plus an amount that could be achieved via advanced conservation (and then translate that advanced conservation to the water supply strategy side of the plan).

Under this approach, 2060 total projected irrigation demand for Region O would have been 1.328 million acre-feet/yr for 2060 (Figure 5 in the July 2013 consultants’ report) versus the 2011/2012 plan’s projected 2060 demand of 3.474 million acre-ft/yr.  And the 2070 projected demand under the consultant’s approach would have been 1.273 million acre-feet/yr. 

For perspective, this proposed approach have meant over 2 million acre-feet less than 2011/2012 plan’s  projected demand, or nearly one-quarter of the projected 2060 statewide demand/supply gap from the 2012 plan. 

However, between July and the August 1, 2013 meeting of Region O, the Region O planning group decided instead to request no changes in the TWDB irrigation demand projections.  (The revised consultant report and adoption of the TWDB projections can be found here.

What changed?  That requires a look behind the scenes at development in groundwater management in Region O, particularly in the High Plains Underground Water Conservation District (HPWD), which covers 16 of the 21 counties in Region O and accounts for the vast majority of irrigation use from the Ogallala.

Established in 1951, the HPWD has been working for decades to conserve and protect the basically non-renewable reserves of the Ogallala.  In recent years, as aquifer levels have begun to drop even more steeply than in the past, HPWD sought to enact phased-in metering requirements and pumping limits generally 1.5 acre-feet/acre).  While not free from controversy, the new rules—enacted in July 2011 were approved 4-0 by the board as necessary to meet the 50/50 goal for the Southern High Plains portion of the Ogallala. 

Two factors appear to have combined to generate resistance to the HPWD’s efforts to sustainably manage the Ogallala for both current and future generations:  commodity prices and the second is the Edwards Aquifer v. Day case (discussed here). 

Corn, along with cotton and wheat, is one of the major irrigated crops in the High Plains, from Texas up through Kansas.  As shown in the recent report of results from the Texas Alliance for Water Conservation work in the Southern High Plains, crop choices fluctuate with “anticipated prices, weather conditions, and water availability.”  When corn prices are high, there is an incentive for growers to irrigate as much as possible in order to take advantage of the market.  Under that perspective, pumping limitations can be a barrier to short-term profits. 

Cropping fluctuations for the 4,700 irrigated acres involved in the TAWA project are shown in Figure 3. These thirty voluntarily-enrolled sites represent only a tiny portion of the over 2 million irrgated acres in the Southern High Plains, but may be somewhat indicative of overall trends.

Figure 3.  Irrigated crop trends on TAWA sites

Figure 4 shows irrigation use in Region O as compared to national average corn prices for the last five years.  Both 2009 and 2011 were years of severe drought in the region, requiring additional irrigation. 

Figure 4. Region O Irrigation Use (million acre-feet/yr) v. National Calendar Yr Average Corn Prices

(Sources: Texas Water Development Board and Farmdoc.illinois.edu)

 Region O water use is not as closely correlated with cotton prices (Figure 5), though 2010 was a relatively normal precipitation year, which could have reduced cotton irrigation demands. 

Figure 5.  Region O Irrigation Use (1000s AF/yr) v. Calendar Year Avg Cotton Price

(Sources: TWDB and National Cotton Council)

Adding to these higher commodity price-related incentives, in February 2012, the Texas Supreme Court held in the Day case that groundwater is owned in place by the overlying landowner.  The ruling added fuel to a small group of High Plains farmers arguing against pumping limits on constitutional grounds.  The Protect Water Rights Coalition has opposed HPWD’s efforts to enact measurement and pumping limits at every turn, often finding support from the Texas Corn Producers.

In November 2012, two HPWD board incumbents were defeated and two more resigned in early 2013.  The 12-year director of HPWD, James Conkwright, resigned in July 2013.  Mr. Conkwright also stepped down from his position representing HPWD on the Region O planning group.

So, where does Region O go from here?  As noted above, the TWDB projections adopted by the Region unfortunately also fail to reflect the aquifer management goal.  But, because these demand projections were initially supplied to the Region by TWDB, there is no clear step to change them at this point. 

The Region’s next steps will be to look at the demand/supply gap and water management strategies.  Presumably, the Region should apply the current DFC to determine available supply (as required by 31 T.A.C. Section 357.32(d)).  With the application of the DFC/managed available groundwater standard, the demand/supply gap will be as large as or greater than that shown in the 2011/2012 plan, again distorting the total statewide gap significantly.  While advanced conservation can be used to help reduce irrigation demand, the over-stated gap and some completely unrealistic figure of “unmet needs” will likely remain. 

It’s unfortunate that Region O (and TWDB) missed a golden opportunity to help improve the overall integrity of the state planning process and focus instead on what is really needed to achieve sustainable management of the High Plains portion of the Ogallala Aquifer, which continues to decline at alarming rates. 

The future of the HPWD, one of the oldest and most successful of Texas groundwater districts would also appear to be in jeopardy unless those many farmers who do care about the future condition of this unique resource, and the communities that depend upon it, become more vocal. 

 

 

Data Reliability Undermines Water for Mining Projections

While the demands for Texas water by mining are not large compared to other demands, an analysis of projections for demands and needs in this sector provides an example of how our regional and state water planning process often fails to collect and use the type of accurate data needed for a state water plan.  For planning purposes, water demands for mining include oil and gas activities, as well as those demands for coal, uranium, rock, sand, gravel and other traditional mining activities.   

This new analysis shows that water use for mining—both actual and projected—is significant in some regions of the state, but the projections do not appear to be based on reliable data.  The analysis also reviews the existing statutory authority of various agencies to collect water use data and discusses how that authority might be used to develop better projections.

Coming soon:  an analysis of irrigation water use projections.

Edwards Aquifer Authority v. Bragg: Resource Links

While this important case has not yet run its full course, the ultimate outcome of Edwards Aquifer Authority v. Bragg could significantly affect how regional water planning groups determine how much ground water will be available in the future.  Last week, the San Antonio Court of Appeals issued its opinion regarding whether certain permitting decisions by the Edwards Aquifer Authority constitute a compensable regulatory taking.  Here are some links for further reading:

EAA v. Bragg opinion, August 28, 2013

Edwards Aquifer Authority v. Day (2012 Texas Supreme Court opinion which Bragg court relies upon)

Environmental Law Prof Blog (Dave Owen, University of Maine School of Law)

Texas Living Waters Blog (Amy Hardberger, St. Mary’s School of Law)

Texas Observer article

Texas Agriculture Law Blog

University of Texas Energy Center Blog

Pacific Legal Foundation Blog

New Board Can Fill Leadership Vacuum on Texas Water

Tomorrow, September 3rd, the three new members of the Texas Water Development Board  will convene for the first time since being appointed by Governor Rick Perry.  At their September 3^rd meeting, Chairman Carlos Rubenstein and fellow board members Mary Ann Williamson and Bech Bruun will make opening remarks, appoint an Executive Administrator and hear comments from the public.  But this short first meeting is only a prelude to the real work that lies ahead for this now full-time board:  providing the statewide agency leadership needed to achieve a sustainable water future in Texas.

Jack Welch, business guru and former CEO of General Electric, once said that “a leader’s job is to look into the future and see the organization, not as it is, but as it should be.” The new TWDB members have an unprecedented opportunity to do just that. 

The new board has the opportunity, first and foremost, to ensure that the state’s water planning process is grounded in reality, not wishful thinking, with respect to both projected demands and available supply.  It can move the planning process away from the current exercise of producing a long-term oriented wish list of expensive infrastructure projects to a focus on what, exactly, needs to be done to accelerate cost-effective efficiency strategies to stretch our existing supplies and meet real needs over the next two decades.  House Bill 4, passed in May 2013, provides the board with a prioritization process to accomplish these goals. 

The board can protect the value of healthy rivers and streams to the Texas economy and to the state’s future generations by:  working with rural landowners to protect watersheds and aquifer recharge zones; developing the science and policy tools the state needs to ensure that drought and increased climate variability don’t result in dried up rivers and lifeless bays; and recognizing that healthy flows will ensure that Texas water management decisions are not driven by federal laws like the Endangered Species Act. 

While groundwater management authority remains dispersed among over 100 local and regional districts, the board can play a role in raising awareness about the value of careful aquifer stewardship and it can help the public and water managers understand how groundwater and surface water are inter-connected. 

And, finally, the board can and should ensure that the legislature is aware of the need to invest in modern management and protection of Texas water resources.  Texas needs much better information on actual water use, near-term demands and environmental water needs.

Texas has come a long way in water management and planning since the TWDB was first established in 1957, during a devastating drought that may be exceeded only by the current one.  But, there is much more to do to respond to new challenges.  Here is hoping the new board will reimagine a TWDB that provides the statewide leadership essential to meeting those challenges and developing a sustainable water future.

By: Mary E. Kelly, Parula, LLC for Texas Center for Policy Studies

Water for Steam Electric Power Generation: Planning or Pie in the Sky?

The Texas Water Plan projections for steam electric power generation (SEPG) provide a stark example of how the planning process often fails to live up to its potential to guide the state to a sustainable water future.     

Our new analysis, available at www.texascenter.org, shows that the regions often ignored reasonable guidance from the TWDB that would have resulted in substantially lower projected SEPG water demand.  Instead, many of the regional planning groups have included unsubstantiated projections for future demand by steam electric plants. 

More troubling, TWDB has failed to push back against these inappropriate projections and failed to adopt rules that would direct the regions to substantiate the SEPG water demand. 

Finally, the process for developing SEPG water demand projections is essentially disconnected from the reality of how many new power plants Texas might actually need or expect over the next 50 years and where those plants should be located from an available water supply perspective. 

REGION C REALITY CHECK WOULD REDUCE THE PRICE TAG OF THE STATE WATER PLAN

As we noted in our last post, a recent Texas Court of Appeals ruling has highlighted the issue of Region C’s desire to proceed with the proposed Marvin Nichols Reservoir in East Texas. This project, which is proposed to supply approximately 450,000 acre feet/year at a capital cost of $ 3.3 billion.  Marvin Nichols is one of eight Region C projects that are in the top 20 most costly projects in the 2012 State Water Plan.  In fact, the 2012 Plan recommended a total of $ 21 billion in water supply projects for Region C, or about 40% of the total projected state plan cost of $ 53 billion by 2060.  Many of these projects, especially the proposed large new reservoirs and pipelines, are not projected to be needed until near the end of the 50-year planning horizon. 

These proposed Region C projects are driven by municipal demand projections for the fast-growing Dallas-Fort Worth Metroplex.  These demand projections have two components: projected population and projected water use per capita, often expressed in gallons of water per capita per day (or GPCD).  Both population and projected water use figures are developed in the first instance by the Texas Water Development Board (TWDB).  The regions are then given leeway to request “adjustments” of both population and projected GPCD.

The demand projections supplied to Region C by TWDB for the current new round of planning are considerably lower than the projections used to develop the 2012 plan.  In fact, as discussed below, using the TWDB projections with the application of conservation strategies comparable to that used in the 2012 Region C plan, would result in almost 600,000 acre-feet less municipal demand in 2060 (2.2 million acre-feet (MAF) vs. the 2012 plan projection of 2.8 MAF), potentially completely eliminating the need for Marvin Nichols or other projects, or at least pushing them out to the very far end of the 50-year planning horizon.

These new, more realistic, demand projections are a vital step by TWDB in the direction of a more sustainable water plan for Texas.  Strong oversight and public engagement will be necessary to ensure these realistic projections are not undermined during the regional review process.  And, in fact, there is reason to believe, as explained below, that if all (not just some) water user groups in Region C were to engage in aggressive efficiency and drought management measures, could eliminate the need for an additional 400,000 acre-feet of new supply.  This, in turn, should result in a substantial reduction in the projected costs of the Region C plan, and thus in the cost of the state plan as a whole. 

___________________________ 

Discussion

Updated municipal demands are calculated based on population forecasts supplied by the state demographer and on GPCD estimates.  The population forecast tends to become less accurate toward the end of the planning horizon, but a review of previous water plans indicates that population projections compare well with actual growth.  For example, census results showed that the forecasts from 2006 overestimated 2010 population by only about 1 percent.  The population forecast for the new 2017 plan corrects for that difference and other region-specific factors. 

Developing accurate and agreed upon GPCD projections is substantially more complex and error-prone.  The first complication is the data.  Water use data in much of Texas is self-reported by retail or wholesale water suppliers, and reports differ among different entities. The amount that users report (buyers) may not always match the amount that wholesalers (sellers) report.  So, consultants who do the leg work of developing regional plans spend a good part of their effort resolving these discrepancies.

What is turning out to be a more controversial issue, however, has been the decision on what annual water use to select for the base year GPCD.  The base year GPCD is important because, after making some adjustments for the build-out of more efficient plumbing fixtures, the base year demand defines the demand that will be used for planning for future water needs through 2070. Because water use varies significantly from year to year, selecting the appropriate base year is critical. In some cities, particularly where no drought management measures are applied, municipal use per capita may be higher in dry years than in wet years.  By contrast, where drought management measures are employed in dry years, municipal use per capita will be lower, though potentially still higher than in normal years. 

Since the regional planning process is intended to meet water needs during drought – water supply estimates are based on availability during a repeat of the historical drought or record, which for most of the state occurred in the 50’s – water planners at the Texas Water Development Board selected a dry year, 2011, to represent base year demands.

The estimates of municipal demand used to develop the 2012 State Water Plan show that the baseline for Region C starts at 207 GPCD in 2010 and declines to 198 GPCD in 2060, as a result of reduction from federally mandated plumbing fixture efficiencies. The 2011 Region C planning group also recommended basic and advanced water conservation strategies for individual water user groups.  These water supply strategies further reduced the projected per capita use to 201 GPCD in 2010 and 178 in GPCD in 2060. With a Region C population estimated at about 6.6 million people and growing to 13.0 million in 2060, this resulted in total municipal demands of approximately 1.5 MAF in 2010 growing to 2.8 MAF in 2060.

However, the initial demand estimates provided to Region C by TWDB for development of the 2017 plan are substantially lower than those used for developing the 2012 plan.  The base GPCD for 2010 is 176 which, again, as the result of plumbing code upgrades, declines to 161 in 2060. 

Although it is too soon in the planning process to know what Region C or other regions will do with respect to water conservation strategies, if we assume that a comparable level of savings will be proposed in this round, the GPCD can be expected to be revised down to about 169 in 2010 and 141 in 2060.  Moreover, population projections for the 2017 Region C plan are about 3% lower at the beginning and end of the planning horizon (2020 and 2060) and about 6% lower in the middle decades as compared with the estimates developed in the last round.  These estimates, combined with the 169/141 GPCD values, would result in total municipal demands of approximately 1.2  to 2.2 MAF in 2060, or more than a 20 reduction in municipal water demand estimates for Region C.

The per capita water use reductions in Region C represent an important step in the right direction towards meeting long term water needs and one for which water suppliers and policy makers should be commended.  It is also reflective of well documented broader trends in decreased per capita water use across the county, suggesting that this decreasing per capita use trend, rather than the flat line forecasts (excluding adjustments plumbing fixture improvements), should be incorporated in long term projections. That said, it is worth asking whether even the use rates meet sufficiently ambitious goals for municipal water use.

Texas Water Conservation Implementation Task Force (WCITF) recommended a goal of 140 GPCD for potable water supplied to municipal retail customers. The discussion above suggests that Region C is on course towards that goal.  There are several nuances to the WCITF target that are worth considering. In support of Region C’s current forecasts, for example, it should be noted that the 140 GPCD goal explicitly includes reuse as part of the calculation. That is, before calculating the GPCD, demand should be reduced by the amount of supply that is projected to be met through reuse of existing supply. There is a significant amount of existing and planned reuse in Region C, and so, by this calculation, the projected GPCD would be even lower. 

On the other hand, given that conservation is the most cost effective, least environmentally destructive and overall most sustainable strategy for meeting long term water needs, it is important to consider that the WCITF 140 GPCD recommendation was the result of a long and difficult negotiation to reach a broad consensus amount water suppliers, state agency representatives and public and environmental advocacy groups.  It does not necessarily represent a particularly aggressive approach to conservation, nor is it reflective of the best we can do with technological innovation, funding and education. 

In fact, a minority report to the WCITF recommended a target of 125 GPDC.  Furthermore, even if the 140 estimate does represent a reasonable goal, it should be noted that this target was intended for individual water user groups.  As shown in Table 1, many of the Region C water user groups whose needs were projected to be met by some of the very costly and environmentally damaging projects proposed in the last state water plan still project a GPDC well above 200.

Table 1:  Large Water User Groups (Population > 30K) Supplied by Wholesalers Proposing Large Reservoir Projects With High GPCDs

 

If these water user groups  with high GPCDs were able to get their individual use down to the compromise 140 GPCD value, this could result in additional reduction of over 400,000 acre-feet/year in 2060 and a regional average GPCD of about 130.  This kind of aggressive goal could make Region C a leader in the state (and the nation) in showing how to meet future water demand in a cost-effective and sustainable fashion. 

Unfortunately, rather than an increased push towards more conservation, some Regional Planning groups, apparently including Region C, may try to push the pendulum back the other way.  The argument is that the new base GPCD projections supplied by TWDB are too low because base demands in 2011 may reflect implementation of drought contingency plans (reducing outdoor watering etc.) 

Some have put forward the view that drought contingency measures should be included in the water plan as “supply strategies” rather than being reflected in baseline demands. They contend that drought contingency plans will not be implemented unless they are budgeted and planned for, and thus they should be included as water supply strategies. 

Yet, Texas Law does require the development and implementation of drought contingency plans.  Thus, it can be argued that these reductions are similar to those that result from the mandatory plumbing code changes built into demand forecasts.

Moreover, if drought contingency plans are at least required to be in the demand forecast, the projected gap between supply and demand will be less, thus reducing the potential costs of meeting the gap.  Unfortunately, the last Region C plan states that drought contingency planning should not even be incorporated as a water supply strategy: :

Drought management and emergency response measures are important planning tools for all water suppliers. They provide protection in the event of water supply shortages, but they are not a reliable source of additional supplies to meet growing demands. They provide a backup plan in case a supplier experiences a drought worse than the drought of record or if a water management strategy is not fully implemented when it is needed. Therefore, drought management measures are not recommended as a water management strategy to provide additional supplies for Region C.

If that position were adopted by TWDB and drought contingency reductions were not included in the demands, the projected gap between supply and demand would be inflated statewide, leading to a much more expensive state plan.

Conclusion

The debate in Region C between TWDB and some who prefer to use higher demand projections poses an important statewide issue.  If the high demand approach is adopted b other planning groups, it could result in more proposals for unnecessary and controversial projects, bogging down the state plan in the type of conflicts that have arisen between Regions C and D. 

The benefits of drought contingency planning on lowering demands for the planning process are clear. .  The baseline demands used should reflect these measures.  Failure to include them would mean that some water users will take on responsible demand reduction efforts, and the political and economic costs associated with them, while others look to state funding to help them build costly projects that may ultimately not be needed.  That is not a sustainable, or equitable, approach to state water planning.

 

 

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.