Today Sierra Club’s Matagorda Bay area partners, the No Coal Coalition released a legal/policy opinion that determined that the Lower Colorado River Authority (LCRA) has discretion over whether or not a contract had to be issued to the White Stallion power plant. This opinion could be of great importance to future water management in the Lower Colorado River Basin.
Blackburn’s researched opinion underlines the fact that LCRA has the right to say ‘No’ to a contract for White Stallion whic, if allowed, would boil away our precious Colorado river water.
According to Allison Sliva of Bay City, “We at the No Coal Coalition consistently have been told by the LCRA Board that they have no discretion to turn down the request for additional water for White Stallion. We are gratified to learn that they have much more discretion than previously thought.”
The legal/policy opinion was co-signed by environmental lawyer Jim Blackburn of Blackburn & Carter from Houston, representing the No Coal Coalition, and Larry Soward, a former commissioner of the Texas Commission on Environmental Quality who is a consultant to the No Coal Coalition. The letter describes the unique structure of the LCRA and the reason why the water rights situation on the Lower Colorado can be distinguished from, among other things, a Texas Supreme Court decision that required the Guadalupe Blanco River Authority to issue a municipal water right in the 1960s.
According to Blackburn, “The water rights structure on the Lower Colorado River is different from that of most river systems and the discretionary authority of the LCRA Board is also different from many other river authorities. The LCRA has authority to develop a water management plan that controls a system of firm and interruptible water rights. This structure allows for much more flexibility than is the norm under Texas water law.”
Former TCEQ Commissioner Soward concurred, stating “I understand why the LCRA Board has been hesitant to interpret their authority to allow for substantial discretion. It is just assumed in the water community that water contracts and water rights have to be issued without significant discretion. However, I don’t think that interpretation is supported by a detailed examination of the authorities and rules and regulations.”
Various LCRA documents indicate that it is the position of the agency that the LCRA Board must issue a contract for water for the White Stallion project from “firm” supplies if those supplies are available, even if such action would force rice farmers off of “interruptible” surface water. However, according to Blackburn and Soward, the board has discretion to determine availability based on longer-term stewardship and management considerations and is not compelled to issue any water contract without due deliberation and discretion.
“We are very encouraged by this legal/policy opinion letter” said Ms. Sliva. “All of us in the Lower Basin are concerned about the role of water in our future. We certainly hope that the LCRA Board will take this opinion letter to heart and work with us to secure the future of the Lower Colorado River Basin. Our lives and livelihoods are at stake in many respects.”
Contact: Allison Sliva – 713-922-5639 or Jim Blackburn – 713-524-1012
Posted by Donna Hoffman, August 30, 2011