Updated, Friday, July 26 at 3 p.m.
The Texas Commission on Environmental Quality commissioners voted Friday to affirm an order that requires farmers to stop drawing water from the Brazos River.
The curtailment order, which has been in effect since July 2, suspends and decreases water pumping for farmers and other customers along the river. The order is in place until Dec. 28. The commissioners made only minor modifications to the order, which was issued at the request of Dow Chemical, the company that has priority rights to the water.
In a lengthy discussion about the order, the majority of speakers supported the bill with proposed modifications.
The only major opponent to the order, lawyer Courtney Hansen, asked about the disproportionate effect of the order on farmers.
Hansen, who represents a farmer with two small reservoirs about 300 miles from Dow, said some farmers might question, "why all this for one entity when it hurts so many more individuals?"
Hansen said that many farmers like her client were geographically distant from Dow and that the water saved from suspending water had no guarantee of reaching the company's plants.
Though Chairman Bryan Shaw said he understood her concerns, he said her arguments could not be legally considered by the commissioners, because TCEQ is responsible for upholding senior water rights.
Before the order was affirm, Shaw acknowledged that the suspension order dealt with "some of the more heart-wrenching issues" considered by the agency, but he said such actions are necessary until the drought ends.
Farmers who rely on the Brazos River will be paying close attention to a meeting Friday of the Texas Commission on Environmental Quality, where the fate of their summer crops could hang in the balance.
Right now, farmers say they are “out of water and out of luck” because the agency has curtailed their use of water from the Brazos River, said rice farmer Ronald Gertson, who has advocated for other rice farmers across the state. The cuts have barred irrigation farmers from the water that many of them need at the height of the growing season.
Earlier this month, the TCEQ ordered customers on the Brazos River to halt their water usage after Dow Chemical Company invoked its long-standing priority right to water in the river. At the meeting Friday, commissioners will decide whether to alter that order, rescind it or allow it to stand. Their decision comes after a court ruling last month in a similar case in which a district court sided with farmers who claimed the TCEQ's order to stop their water use was discriminatory.
The agency issued the July 2 order in response to a water rights call from Dow Chemical Company on June 26, which invoked the company’s right to water in the Brazos River. Under the Texas Water Code, rights holders have access to the water based on the date that right was filed, and TCEQ generally exempts from the cuts water that is used for cities and power generators. Dow, which did not respond to requests to comment for this story, has a priority date of Feb. 28, 1929.
For irrigation farmers, who are not exempt, the water cuts have left them dry at the hottest point of the season. Irrigated crops account for a fifth of all Texas farmland according to a 2007 USDA report.
“I’ve had [the water] forever. I’ve never had a reason to buy it,” said farmer Frank DeStefano, who has used the Brazos’ water to help grow water-intensive corn and cotton.
One of two farmers named as plaintiffs in the Farm Bureau’s lawsuit, DeStefano said he purchases some water from the Brazos River Authority yearly to tend to one of his farms but does not have enough to cover the entire loss of the river water.
The fight over water has also hurt Galveston County rice farmers, who were in the middle of growing their second crop of rice, Gertson said. Rice grows in two stages, with the second crop grown from the remains of the first. But the latter, because it is a “low cost” crop to raise, often yields more than half the income that farmers earn in a given year, he said.
What's more, he said, most of the rice farmers pay for their water at the beginning of the year.
“They had to prepay for this water, and now folks are reneging on their agreement and saying, ‘Here’s your money back. You’re not gonna get the water,’” Gertson said.
The current order, though issued by TCEQ’s executive director, is temporary and requires the agency’s commissioners to hold a hearing to assess the order for it to continue. The commissioners can “affirm, modify, or set aside” the order at Friday’s meeting.
This isn't the first time that farmers have fought this water battle with the TCEQ. Last year, the Farm Bureau sued the TCEQ when it made a similar water stoppage order in November that affected many of the same farmers. Farmers alleged that TCEQ’s exemptions for customers like cities and generators were unfair and overstepped the agency’s authority. Though the TCEQ lifted the order a month later, a Travis County district court ruled in favor of the farmers in June.
The court said, in part, that TCEQ couldn't target farmers with its orders to stop water usage from the Brazos River. The court said TCEQ did not have the authority to exempt customers like cities and electricity generators from the water cuts based on how they used the water.
TCEQ has appealed the June decision, and the district court’s ruling has been suspended pending resolution of the appeal, so it will not affect the current suspension order, TCEQ spokeswoman Andrea Morrow wrote in an email.
The July order still exempts water that is needed for cities and generators, though the Farm Bureau is working to have those exemptions lifted, said Regan Beck, an assistant general counsel at the bureau. He declined to comment on the possibility of another lawsuit against TCEQ.
In the meantime, farmers will continue to cope with the dry spell.
Asked what he plans to do to continue watering his crops, DeStefano said, “Hope it rains.”
Brazos River Average Discharge Data
Below is a map built using data from the United States Geography Survey's Water Watch program. It visualizes the distribution of water along the Brazos River. Each icon on the map represents an individual stream site where water data is collected. The icons are color-coded based on average discharge. Click on a marker to see the name of the stream site and the average discharge in cubic feet per second from 1918 to 2012.
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This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/07/26/farmers-face-water-shortages-despite-legal-victory/.