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Heading to a Conclusion? Or Heading Back to Court?

The Executive Administrator of the Texas Water Development Board (TWDB) has made a final recommendation regarding the long-boiling dispute between two Texas regional water planning groups over the proposed Marvin Nichols reservoir in Northeast Texas. TWDB’s three-member governing Board (also known at the Texas Water Development Board since we Texans like to keep people confused) will probably take action on the Executive Administrator’s recommendation at its August 7 meeting in Austin. But does that mean the controversy will be “resolved?”  More likely it means that the dispute will be headed back to the state courts.

The Region C Water Planning Group, one of 16 such planning groups in the state, is responsible for developing a regional water plan for the Dallas-Fort Worth area and a number of neighboring counties. A neighboring planning body, the Region D Water Planning Group, has the task of developing a regional water plan for Northeast Texas. The plans are updated every five years, and the aggregation of all 16 regional water plans forms the basis of the state water plan, which is officially adopted by TWDB.

Region C has included the proposed Marvin Nichols reservoir as a water management strategy and/or alternative water management strategy for water user groups in its region in its regional water plan in each of the planning cycles since the current planning process began in 1998. One little complication there: the proposed Marvin Nichols reservoir would actually be located in Region D, and the Region D Water Planning Group has identified a number of negative impacts on that region’s economy and environment that would result from the construction and operation of the reservoir. Those concerns and the opposition of the Region D planners to the Marvin Nichols reservoir are laid out in the Region D water plan.

The disagreement between Region C and Region D is problematic for the state water plan and TWDB, which is supposed to referee conflicts between regions in their respective water plans so that the state water plan is internally consistent. TWDB has taken the stance that there is no conflict between the Region C and Region D water plans despite this dispute over whether the reservoir should be built. TWDB says that there would only be a conflict if both regions were trying to tap the reservoir to meet their own water needs.

But that stance is based solely on TWDB’s own rules implementing SB 1, the 1997 law that created the current regional and state water planning process. The law gives TWDB the authority to resolve interregional conflicts but doesn’t specify what constitutes a conflict. That led to litigation being filed in state court against TWDB by economic interests in Region D, including Ward Timber Holdings, asserting that a conflict did exist because Region D was opposed to the reservoir based on the negative impacts to the region.  The courts at the district and appellate level sided with the Region D interests and ruled that a conflict did exist that TWDB should work to resolve. The ruling by the Third Court of Civil Appeals in May 2013 was the final ruling. TWDB did not seek to appeal the case to the Texas Supreme Court.

Within a few months after this appellate court ruling, the TWDB “re-opened under new management” in September 2013 as a result of agency restructuring ordered by the Texas Legislature with the passage of House Bill 4. That development – and what appears to be a continuing stalemate between Region C and Region D – may have led to the draft preliminary recommendation earlier this year from the new TWDB Executive Administrator. That recommendation was to “resolve” the conflict by once again asserting that there was no conflict, that Region C should retain Marvin Nichols in its 2011 regional plan, and that Region D should delete its objections to the proposed reservoir from its 2011 plan ( and basically not raise the conflict issue again).

As would be expected, that set off a new wave of outrage from many interests in Region D and from environmental organizations that share Region D’s objections to the proposed reservoir. The anger from Region D folks was strongly demonstrated at two hearings held by TWDB in later April to get feedback on the draft recommendation – one hearing in Mount Pleasant in Northeast Texas and one in Arlington. The Lone Star Chapter of the Sierra Club presented testimony at the Arlington hearing and submitted extensive comments in opposition to the draft recommendation.

And the result of all this opposition thus far?? The TWDB Executive Administrator’s final recommendation is really not changed in any major way from the draft. The EA did urge Region C to accelerate consideration of some alternative water supply options for the region, which Sierra Club noted in a press statement on the recommendation, but the basic assertions that there was no interregional conflict, that Region C should retain Marvin Nichols in the 2011 plan, and that Region D should drop its objections to the reservoir remained.

Now – following the submission of formal briefs on the issue by the Region C and Region D planning groups (due to TWDB by June 20) – the recommendation goes to the three decision-makers on the Water Development Board. In the meantime the newest round of regional water planning is underway, and the population and water demand projections for Region C are lower for 2060 than what was estimated by the 2011 regional plan, calling into question the “need” for the Marvin Nichols reservoir in the first place. A recent report from the Texas Center for Policy Studies points out in a case study how Region C’s municipal water needs may be met without pursuing the Marvin Nichols reservoir.

Where will all of this lead? Well, let’s just say that it would not be wise for anyone to stand in front of the doors to the state district courts in Travis County after the Water Development Board meeting on August 7 if the Board adopts its Executive Administrator’s final recommendation. There is likely to be a stampede back to the courthouse, and anyone standing in the way could get trampled.

Ken Kramer

Ken Kramer

Volunteer Water Resources Chairs at Sierra Club - Lone Star Chapter
Ken provides an historical perspective on water issues in Texas with over 40 years of experience as a volunteer or professional working to protect and conserve the water resources and environment of the state. In his spare time Ken has backpacked in most of the states in the western United States and now spends much of his time managing his rural property in Austin County, which has been in his family for almost 100 years.
Ken Kramer

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