Lower Colorado River Authority v. Texas Dept. of Water Resources
| Decision Date | 14 November 1984 |
| Docket Number | No. C-1620,C-1620 |
| Citation | 689 S.W.2d 873 |
| Parties | LOWER COLORADO RIVER AUTHORITY et al., Petitioners, v. TEXAS DEPARTMENT OF WATER RESOURCES et al., Respondents. |
| Court | Texas Supreme Court |
L.C. Meyer, Small, Craig & Werkenthin, Fred B. Werkenthin, Lawrence S. Smith and David L. Guerra, George & George, Thomas W. George, Vinson & Elkins, Roger P. Nevola, Austin, for petitioners.
Jim Mattox, Atty. Gen., Timothy L. Brown and R. Lambeth Townsend, Asst. Attys. Gen., Frank R. Booth and Skip Newsom, Austin, for respondents.
This appeal of an administrative order affecting water rights poses the question of what constitutes unappropriated water. The Texas Department of Water Resources, through its judicial division, the Texas Water Commission, issued a permit 1 to the Colorado River Municipal Water District allowing it to impound water from the Colorado River to form a lake and to use annually 113,000 acre-feet of water from the river. The Lower Colorado River Authority, Garwood Irrigation Company and Lakeside Irrigation Company contested the proceeding and appealed to the District Court of Travis County. 2 The trial court upheld the order.
Contestants appealed further to the Third Court of Appeals, which affirmed the judgment, one justice dissenting. 638 S.W.2d 557. 3 The court of appeals held that the Department could find "unappropriated water" even though the existing appropriation permits showed insufficient water to supply the application. The court reasoned that historically usage statistics showed that the recorded appropriations were not being fully used and were unlikely to be fully used.
We reverse the judgments of the courts below because those courts have misconstrued and misapplied Tex. Water Code Ann. § 11.134. We hold that the term "unappropriated water" means the amount of water remaining after taking into account all existing uncancelled permits and filings valued at their recorded levels.
The Water District applied for a permit to impound over 500,000 acre-feet of water from the Colorado River at the Stacy Dam site southeast of Ballinger, Texas. The Stacy Dam and Reservoir have been proposed for that site at various times over the last twenty-five years. The Texas Water Commission therefore had before it a wealth of hydrologic information from past studies. In addition, the Department staff had prepared special studies for this particular application.
Colorado River water belongs to the State. Tex. Water Code Ann. § 11.021(a); In re Adjudication of the Water Rights of the Upper Guadalupe River Basin, 642 S.W.2d 438, 444 (Tex.1982); Motl v. Boyd, 116 Tex. 82, 111, 286 S.W. 458, 468 (1926). The right to impound water had to be obtained by the Water District, through a Department permit. Tex. Water Code Ann. § 11.121. To acquire a permit, the Water District had to satisfy the statutory grounds of Tex. Water Code Ann. § 11.134(b)(2) & (3):
Action on Application
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(b) The commission shall grant the application only if:
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(2) unappropriated water is available in the source of supply; and
(3) the proposed appropriation:
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(B) does not impair existing water rights or vested riparian rights; and
(C) is not detrimental to the public welfare.
The Colorado River waters are presently charged with four types of outstanding water rights. There are vested riparian rights, certified filings, permits to appropriate water, and certificates of adjudication. The Colorado is an inconstant stream. There is insufficient water to satisfy the existing rights during drought, but the water supply is capable of supplying additional users during times of abundant rain.
The Department developed a sophisticated computerized model of the seasonally varying inflow to the Colorado at various points along the river. One goal of the computer model was to allow the staff to obtain a reasonably accurate scientific estimate whether there was "unappropriated water" at points along the river, at least during some seasons or months.
The computer model assumed that all existing recorded water rights in the Colorado River basin would be exercised in the maximum amounts authorized, or to the extent of water available from the inflows. The staff study concluded that The study also concluded that the proposed reservoir would adversely affect two existing downstream lakes--Lake Travis and Lake Buchanan--by reducing the firm yield of each by approximately fifteen percent.
The Water District rebutted the staff conclusion by expert studies and testimony. The studies used the hydrologic data from the staff report but discounted the recorded filings in a number of ways. As to certified filings, the experts presented historical use data to demonstrate that the maximum amount claimed under the filings had never in fact been used, and that some claims necessarily had not been "perfected." As to riparian rights, many of the riparian claims were invalid because they were based on Spanish and Mexican land grants that did not include riparian rights. Finally, experts testified that demographic projections and historical use data indicated that the full amounts authorized under uncancelled permits would not be used. By subtracting the estimated amounts that would not be used from the recorded filings, the Water District's expert witnesses concluded there was sufficient water available for the proposed Stacy Reservoir. Similarly, they concluded that downstream rights would not be impaired if occasional flow-throughs were allowed.
The Commission made finding 15 that there was "unappropriated water" within the meaning of section 11.134(b)(2).
After recognizing downstream existing appropriations and claims below Stacy Dam, the Commission finds that there are unappropriated flows in the Colorado River at the dam site sufficient to permit the impoundment of 554,340 acre-feet of water at elevations 1151.5 feet above mean sea level and the diversion and consumptive use of not to exceed 113,000 acre-feet of water per annum without impairing existing water rights, provided releases of water from the reservoir are made from time to time in such quantities as may be necessary to provide water to which all superior and senior water rights are entitled.
The undisputed evidence in this record is that existing uncancelled permits and filings, valued at their recorded levels, leave an insufficient supply of "unappropriated water for Stacy Dam." Sections 11.134(b)(2) & (3) are unambiguous in their statements that the Commission shall grant applications for new water rights only if there is available unappropriated water and the new appropriation does not impair existing water rights or vested riparian rights. Additionally, granting additional permits cannot be detrimental to public welfare. Basically, our decision is that the article prohibits "double permitting" or the stacking of appropriated waters on appropriated waters.
The Water District relies upon its construction of two water code provisions for its contention that unbeneficially used water may be counted as unappropriated waters. They are sections 11.025 and 11.146(e), (f):
§ 11.025 Scope of Appropriative Right
A right to use state water under a permit or a certified filing is limited not only to the amount specifically appropriated but also to the amount which is being or can be beneficially used for the purposes specified in the appropriation, and all water not so used is considered not appropriated.
(e) If a permit has been issued for the use of water, the water is not subject to a new appropriation until the permit has been cancelled in whole or part as provided by this section.
(f) Except as provided by Subchapter E of this chapter, none of the provisions of this code may be construed as intended to impair, cause, or authorize or may impair, cause, or authorize the forfeiture of any rights acquired by any declaration of appropriation or by any permit if the appropriator has begun or begins the work and development contemplated by his declaration of appropriation or permit within the time provided by the law under which the declaration of appropriation was made or the permit was granted and has prosecuted or continues to prosecute it with all reasonable diligence toward completion.
Based on this statutory language, the Water District concludes that water which cannot be beneficially used "is considered not appropriated" under section 11.025, and therefore must be "unappropriated water" within the meaning of section 11.134(b)(2). It distinguishes the prohibition against "double permitting" in section 11.146(e) as applying only to specific construction projects.
The Lower Colorado River Authority contends, on the other hand, that section 11.146(e) prohibits granting of a new appropriation for unused water until water rights from the existing permit are cancelled in whole or in part. Yet, in the case at bar, there has been no claim that existing water rights have been cancelled.
We hold that second grants that overlay uncancelled water permits are not authorized, and except as provided by Subchapter E of the Water Code, existing rights may not be impaired or forfeited until cancelled in whole or in part. We arrive at this conclusion based on the water code's legislative history, the court decisions construing these provisions, views of commentators about the law of appropriations and cancellations, and the administrative history of the water code or its predecessor statutes.
The court of appeals construed the term "unappropriated water" contrary to the legislative history of these statutes. The...
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