TWDB Proposes Method for Solving Ward Timber Conflict

Last  year, a Texas appellate court raised doubts about the certainty and reliability of the state’s water planning process when it found that two key planning documents impermissibly conflicted with each other.

This week, staff for the state agency that oversees water planning – the Texas Water Development Board (TWDB) – submitted a memo to the agency’s board members that sets forth a proposed plan for resolving the conflict.

The memo is notable for two reasons.  First, it pushes back against the appellate court’s interpretation of what it means for certain planning documents to conflict.  Second, it favors urban and economic growth over agricultural and environmental preservation.

Ward Timber Decision

The memo stems from a dispute that culminated in a decision last May by the Eleventh District Court of Appeals in TWDB v. Ward Timber.  We have blogged before about the case and its potential impact on Texas’ water planning process, but a quick recap is in order.

Since 1997, Texas has conducted its water planning from the bottom-up.  The state is divided into sixteen regional water planning groups (RWPG).  Every five years, the RWPGs must prepare regional water plans (RWPs) according to the requirements set forth in Texas Water Code (TWC) § 16.053.

The TWDB must then approve the regional water plans and stitch them in to a single state water plan (SWP).  But the TWDB cannot approve an RWP if there is an “interregional conflict” between it and another RWP.  TWC § 16.053(h)(7)(A).

The statute does not define the term “interregional conflict.”  In its implementing regulations, however, TWDB defines the term to mean “when more than one regional water plan relies 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).

In the most recent round of regional water planning, the RWPG for the Dallas-Fort Worth area (RWPG C) recommended the construction the Marvin Nichols Reservoir, in the Sulphur River Basin, as a strategy for meeting projected future water demands.  But in its RWP, the RWPG for North East Texas (RWPG D), where the reservoir would be located, opposed the project.

Even though the RWPG C and RWPG D plans took different stances on the reservoir, the TWDB found they did not “conflict” because they did not lay claim to the same limited water supply.

Landowners in RWPG D’s jurisdiction argued that the TWDB erred by approving the RWPG C RWP and sought judicial review.  The district court found that the regional plans conflicted, and the appellate court affirmed.

“The Board does not deny,” the appellate court observed, “there is a conflict in the respective plans concerning the Marvin Nichols Reservoir; it takes the position that this is not a conflict within the meaning of Section 16.053 of the Texas Water code … It is surprising the Board does not consider that the impact of a major water strategy can constitute an interregional conflict, especially here with Region D’s plan stated repeatedly that the impact of the proposed Marvin Nichols Reservoir posed a clear interregional conflict and backed the claim with engineering studies.”

The appellate court construed the term “interregional conflict” within the context of Texas’ water planning process and found that the common meaning of “conflict” should apply.  Under the common meaning, the court held, an “interregional conflict” encompasses not only competing claims to the same water supplies but also disputes over the potential impacts of proposed water strategies.

The court thus found that there was an unacceptable interregional conflict between the RWPG C and RWPG D RWPs and directed the board to resolve it by following the process set forth in TWC § 16.053(h)(6): “If an interregional conflict exists, the board shall facilitate coordination between the involved regions to resolve the conflict.  If conflict remains, the board shall resolve the conflict.  On resolution of the conflict, the involved regional water planning groups shall prepare revisions to their respective plans and hold, after notice, at least one public hearing at some central location within their respective regional water planning areas.  The regional water planning groups shall consider all public and board comments;  prepare, revise, and adopt their respective plans;  and submit their plans to the board for approval and inclusion in the state water plan.”

“Interregional Conflict” and the Scope of Ward Timber

In Ward Timber, the appellate court invalidated the adoption of the RWPs for RWPG C and RWPG D but did not invalidate the regulation upon which the TWDB had based its adoption.  The court: (1) criticized TWDB’s 31 TAC § §357.10(15) definition; (2) found that the definition rule was “clearly inconsistent with legislative intent;” and (3) recommended a means by which the TWDB could revise the definition.  But it stopped short of expressly requiring TWDB to scrap the definition.

At one point in its analysis, the court said that TWDB had argued that broadening the definition of “interregional conflict” would bog down the planning process.  The court quoted the TWDB as contending that “[a] variety of things could be classified under the heading of ‘interregional conflict,’ including differences of opinions on the regulatory recommendations that planning groups are required to submit to TWDB; or estimates of future needs in small, discrete portions of a planning region; or any number of other facets of the planning process.”

The court rejected this argument by observing that, “[a]lthough we  are of the opinion that the term is unambiguous, the Board can solve its dilemma by amending the rule defining an interregional conflict to include its present definition and the present situation where a region has studied the impacts and finds there is substantial conflict.”

This suggestion was only that, however; the court did not mandate a rewrite.  And in the staff memo released this week, TWDB executive administrator Kevin Patteson recommends sticking with the existing definition.  In defense of that definition, the memo makes the following arguments:

  • Planning v. Protecting State Resources:  The court wrongly conflated two distinct aspects of the planning process: (1) the resolution of interregional conflicts and (2) the long-term protection of the state’s resources.  “They are, in fact, however, two different determinations as set out in the statute.  A dispute between regions on protection of the state’s resources, or on conservation and drought management, does not necessarily equate to an interregional conflict over allocation of resources among strategies.”
  • Lack of Guidance: “The court did not suggest an alternative definition.”
  • TWDB Authority:  The legislature tasked TWDB with implementing planning law and intended for the agency to determine what constitutes an interregional conflict.  Acting under this discretion, TWDB “does not consider every difference between regional water plans to be a ‘conflict’ as contemplated by the statute, nor does it recognize the geographic location of the water source as an aspect of the conflict. Instead, this definition focuses on resolving those conflicts that hinder full implementation of the state water plan by rendering an identified supply strategy inadequate for two or more regions.”
  • Other Agencies: “[T]he legislature intended for the TWDB to address conflicts between actual water management strategies, not general objections to projects that are properly reserved for agencies other than the TWDB if and when permit applications for projects are filed.”
  • Measuring Environmental and Natural Resources:  The review and adoption of RWPs is not the appropriate forum for resolving conflicts over impacts to natural and agricultural resources because “[u]nlike the water uses addressed directly in the state and regional water plans … water needed to protect environmental and natural resources is difficult to quantity.”  Given this, the consideration of impacts to natural and agricultural resources is better suited to the RWPS.

The arguments are all debatable.  While TWDB claims the Eleventh District did not “suggest an alternative definition,” for instance, the court did offer at least the kernel of a suggestion, as shown in the quote above.  And even assuming the court did not suggest a new definition, its failure to do so would not give the agency reason to stand by a faulty existing definition.  It is not as though the court has authority to promulgate new regulations for the agency.  See, e.g., FKM P’ship v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 639 (Tex. 2008) (“We must take the Legislature’s language as we find it and not judicially rewrite the statute under the guise of construction, however unjust or imperfect we believe the statute to be.  Our confined role is to interpret unambiguous text according to its terms, reading the Legislature’s words as enacted, not revising them as desired.”).

Similarly, the water needs of environmental and natural resources are not necessarily any more difficult to quantify than agricultural, municipal, or other needs.  A water need is not the same as a water demand, and a water demand is dynamic and subject to many factors.  The TWDB should be cautious not to project an infallibility or even an excessive sense of reliability onto projections that are, indeed, only projections.

Nevertheless, based upon the arguments in defense of its existing 31 TAC 357.10(15) definition, the memo recommends that the TWDB board uphold that definition, apply it to RWPs for RWPG C and RWPG D, and reach “a finding that no interregional conflict as defined in TWDB rules exists between Regions C and D.”

The memo describes the conflict at issue as a “conflict between the Regions’ relating to long-term protection of the state’s water resources, agricultural resources, and natural resources” rather than an “interregional conflict.”

In essence, the memo recommends the TWDB ignore the reasoning, dicta, and recommendations in Ward Timber and run contrary to the spirit of the holding and do only what is expressly and unequivocally required of it.

Resolving the Conflict

After the Ward Timber decision, the TWDB followed the TWC § 16.053(h)(6) process for conflict resolution and hired a mediator to resolve the dispute between the two RWPGs.  On December 17, 2013, according the staff memo, the mediator reported that the parties failed to reach agreement.

“Thus,” the memo recognizes, “under the statue and the Court’s Order, the TWDB is to resolve the conflict.”

To resolve the conflict, TWDB staff considered three options: (1) scaling back Marvin Nichols and making it a smaller reservoir (the compromise option); (2) removing Marvin Nichols from the RWPG C RWP (the option under which RPWG D wins); or (3) retaining Marvin Nichols in the RWPG C RWP and removing opposition to it from the RWPG D RWP (the option under which RWPG C wins).

The memo recommends the third option.  It cites to the SWP projections showing that the population in the Dallas Fort-Worth metropolitan area will increase significantly during the SWP planning horizon and that water demand will grow as a consequence.  In laying out these estimates, the TWDB implicitly makes the case RWPG C is bigger and more important than RWPG D, with a larger population and economy, and that its preferences should trump for those reasons.

The memo warns that removing Marvin Nichols as a strategy could result in unmet “needs,” which could “affect public health, safety, and welfare in the face of another drought of record and would not comply with the intent of the statute, nor would it address the legislative mandate to develop the strategies in the State Water Plan.”

The memo concludes by assuring that, if the Marvin Nichols project proceeds, area property owners could obtain takings compensations for the loss of their lands.  It does not mention, however, that takings only protects affected property rights and not necessarily other interests that do not find expression in property rights (such as community economic impacts or ecosystem impacts).

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