Since its release, the 2012 State Water Plan (SWP) has served as a blueprint for Texas water planning and a call-to-arms for lawmakers intent on increasing infrastructure funding. But a recent state appellate court decision highlights the flaws inherent in the SWP and weakens its position as a foundation for future water policy.
The SWP was created through a bottom-up approach that divides the state into sixteen regional planning areas and requires each to submit a regional plan, which the Texas Water Development Board (TWDB) then vets and consolidates into the single overarching SWP. Section 16.053(h)(7)(A) of the Water Code provides that the TWDB can only approve a regional water plan if “all interregional conflicts involving that regional water planning area have been resolved.” The opinion in TWDB v. Ward Timber, Ltd., 2013 Tex. App. LEXIS 6384 (Tx. Ct. App. May 23, 2013) gives us the first published judicial interpretation of “interregional conflict.”
In 2012, the TWDB promulgated regulations defining an “interregional conflict” to exist when “more than one regional water plan attempts to rely upon the same water source, so that there is not sufficient water available to fully implement both plans and would create an over-allocation of that source.” 31 Texas Administrative Code (TAC) §357.10(15). The Ward Timber court found that this definition was too narrow and excluded consideration of statutorily mandated factors, including the protection of water, agricultural and natural resources.
The case centered on the “much-maligned” Marvin Nichols Reservoir, which as proposed would be created in the Sulphur River Basin in Northeast Texas and would be designed to provide drinking water for fast-growing and relatively water-short Dallas-Fort Worth.
The water planning region that includes Dallas Fort Worth – Region C – identified Marvin Nichols as a water source in its regional plan. But the planning region with jurisdiction over the terrain where the reservoir would be located – Region D – documented in its regional plan the adverse impacts the reservoir would have on agricultural, environmental and other natural resources.
Region D claimed that, because of its contrary position on Marvin Nichols, its plan conflicted with the Region C plan, in violation of Section 16.053(h)(7)(A). The TWDB nonetheless found that there was no “interregional conflict,” as that term was interpreted in TAC Section 357.10(15), because the Region D plan did not rely on Marvin Nichols as a water source.
Region D and assorted stakeholders within its jurisdiction brought a declaratory judgment action requesting judicial review of TWDB’s approval of the Region C plan. The district court found that the Region C and D plans conflicted and reversed the TWDB’s approval. It remanded for the TWDB to resolve the conflict.
The appellate court affirmed. It interpreted Section 16.053(h)(7)(A), and the term “interregional conflict,” in the context of Chapter 16 of the Water Code. It observed that the legislature wanted the SWP to be internally consistent and to protect “regional interests and significant natural agricultural resources.”
The court acknowledged the TWDB’s concern that an expansive definition of “interregional conflict” could open the door to more small challenges. The court disagreed, stressing that the TWDB could revise its definition to encompass “major” conflicts like the one over Marvin Nichols while filtering out lower-grade disputes. The court did not offer a definition of “major,” but, to convey the significance of the impacts the Marvin Nichols Reservoir would have, observed that the project would flood 60,000 to 70,000 acres and lead to the loss of 165,000 to 2000,000 acres of agricultural land.
The court’s opinion weakens the SWP in three important ways. First, it unsteadies the SWP and its constituent regional plans, particularly the Region C and D plans. The SWP had been considered a final document; it longer is.
Second, the opinion includes extensive language highlighting the need to balance agricultural and natural resources against water resources in the course of water planning. This language could be used to support interpretations of Water Code statutes that would call for the state to give greater weight to agricultural and natural impacts when assessing whether to pursue and permit certain water strategies.
Third, the opinion expressly opens the door for challenges to water infrastructure projects that could be argued to serve as grounds for “interregional conflicts,” under the newly expanded meaning of that term. The Marvin Nichols Reservoir is somewhat exceptional in that it has long been controversial and taps into existing tensions between water-rich East Texas and the increasingly thirsty Texas Triangle.
But other conflicts could lurk in the regional plans, particularly since the plans were prepared independently of each other, often by varying third-party consultants, and were reviewed by the TWDB according to its constrictive and now invalidated definition of “interregional conflict.” The Texas Tribune quoted Lloyd Gosselink attorney Jason Hill as saying: “There’s a very real opportunity here to create some chaos in the planning process at a time when we really can’t afford much more uncertainty.”