Never mind that Lake Waco is down 5½ feet after months of drought. The next gush of rainwater that flows into the lake may have to flow right back out, on orders from the state of 
Texas.

That’s because the Dow Chemical plant, 220 miles away at the end of the Brazos River, is claiming the water to make up its shortfall.

For the first time, Waco and other municipalities this summer are having their water supplies restricted by a “priority call” from a downstream user that secured its water rights from the river system before they did.

Dow has made four priority calls since 2009, but municipalities and power plants have been exempted until this summer, when the Texas Farm Bureau won a lawsuit challenging the exemptions.

The Texas Commission on Environmental Quality on July 2 notified Waco and dozens of other Brazos basin water users that they would have to curtail their use or allow river flows to pass through their reservoirs.

The order would continue until Dow’s Freeport facility can get the flows it was promised under its 1942 water rights contract.

The three-member TCEQ board on Friday ratified the staff order. Waco and other affected water users have submitted plans to comply with the order but are still awaiting TCEQ approval.

City officials said the TCEQ may force them to surrender some of the North Bosque River flows that elevated Lake Waco’s levels by about nine inches during the heavy rains following the July 2 order.

The TCEQ order indicates that Waco has to release water flows entering Lake Waco from the North Bosque River unless the flow of the river exceeds 9.8 cubic feet per second, as measured in Clifton. The river exceeded that flow only briefly during the recent storms.

But Deputy City Manager Dale Fisseler said the city is making a case that it should not have to release any Lake Waco water because it has century-old water rights in the Brazos River that it is not using.

Fisseler said the city needs to conserve as much of its lake water as possible because of the ongoing drought.

“We are at a lower lake level than we were at this point in 2011,” said Fisseler after attending the TCEQ meeting in Austin on Friday. “Obviously, we’re very concerned about that. And the potential that we would have to release some of that water makes it even more critical.”

Throughout the Brazos basin, reservoirs are typically at 65 to 70 percent capacity, and many have never recovered from the 2011 drought, said Brad Brunett, water services manager at the Waco-based Brazos River Authority.

The authority, chartered by the state to manage surface water in the Brazos basin, already is releasing water it has stored in Lake Whitney, Lake Somerville and Lake Belton because of the order. The authority has asked its customers to reduce their use at least 5 percent because of the drought conditions.

Limited resources

The water call and the persistent statewide drought have opened up uncharted territory for industries, farmers and cities, who now find themselves in competition for limited water resources.

Texas water law is based on the principle of “first in time, first in right,” meaning that whoever secures the water rights first takes precedence over latecomers. But only in the past few years has that policy been put to the test in the Brazos River basin, which stretches from the Panhandle to the Gulf Coast.

Dow Chemical made calls in 2009, summer 2011 and in November 2012. Dow uses the water at its 8,000-employee chemical complex in Freeport and also provides water to several communities with a total of 90,000 residents.

During the first three calls, the TCEQ exempted municipalities and power plants, citing the protection of public health and 
safety.

The Waco-based Texas Farm Bureau objected to those exemptions in a 2012 lawsuit.

The Farm Bureau argued that the TCEQ exceeded its authority in exempting certain users and overriding the “first in time, first in right” doctrine. If cities were desperate enough to need water for public health and safety, they could buy it from farmers who have more senior rights, the lawsuit argued.

“We do want folks to know the Farm Bureau is not against public safety or people getting water,” said Regan Beck, assistant general counsel for the bureau. “What we do object to is just taking it as it has been taken and not being compensated for it.”

The Farm Bureau continued fighting the lawsuit even after the 2012 order was rescinded. The agriculture group won a summary judgment in district court in June, just before the new TCEQ order was issued, restricting water rights secured after 
1942.

The TCEQ has appealed the verdict to the Third Court of Appeals.

Beck said farmers were having to shoulder an unfair burden in satisfying Dow Chemical’s demands. The affected farmers had 141,090 acre-feet of junior water rights. The cities had 3.1 million acre-feet — nearly 22 times as much as the farmers. An acre-foot is 325,851 gallons of water.

Sharing the sacrifice

David Ballew, a plaintiff in the suit who raises hay and cattle in the Brazos valley near Aquilla, said the sacrifice should be shared when there’s a drought.

“I don’t like being kicked in the teeth because I irrigate,” Ballew said this week while giving a tour of his farm 25 miles north of Waco.

“I want the burden to be shared equally. It’s maddening when you’re cut off but you see people watering the concrete. They can grow grass in their yards, but we can’t grow grass for cattle.”

Ballew, 59, said irrigation from the Brazos River is a cornerstone of his family farm of about 500 acres. His father bought the land during the drought of the late 1950s, a time when dry, windblown sands formed dunes around the property.

The family secured its water rights to irrigate in 1963, after seeing a peanut crop fail due to drought. The Ballews raised peanuts until 2002 but now raise Tifton 85 grass for hay and cattle forage.

“You’ve got to be a grass farmer before you can be a cattle farmer,” he said.

Because irrigation increases the grass yield, he’s able to support more cattle without buying more land.

“My business model requires me to irrigate,” he said. “If I didn’t, I would have to sell off a lot of cattle.”

Ballew was caught off guard in summer 2011, when he learned that he would to stop irrigating to satisfy the senior demands of Dow Chemical.

“In 2011, it was so hot and dry with that south wind blowing, and right at the point when the hot wind stopped blowing, we had to shut down for over a week,” he said.

Ballew ended up buying additional water from the river from the Brazos River Authority, and unlike many ranchers that year, he didn’t have to sell off any of his herd because he had plenty of hay and grass.

Ballew is buying water again this year from the Brazos River Authority, and a heavy rain in mid-July has helped ensure a good cutting of hay this week. But he said he worries that water scarcity may become routine in future years.

“I know water is becoming an issue all over the country,” he said. “We need to figure out a fair way to use water. They’re going to have to change the system, because what we have now isn’t working.”

Brunett, the Brazos River Authority official, said it’s too early to tell whether Texas is in the middle of a long-term drought that would equal or surpass that of the 1950s.

“If we continue to have years like 2011 and what we’ve seen in the last 15 months, we’re going to have to change things in the future,” he said.