Where Did All the Water Go? Dealing with Drought in Texas
Drought is a major concern in the State of Texas, and for good reason. The last severe drought that our State experienced was back in 2011, and due to a lack of preparation, a lot of regions throughout the State felt the negative impact of that drought more than ever before. To be fair, the 2011 drought is considered to be the most severe the State of Texas has experienced in its recorded history. The drought was so severe that it resulted in not only a substantial shortage in water in the Lone Star State, but also caused agriculture producers in the State to lose more than $7 billion, driving some out of the agriculture business altogether.
One of the tools utilized by municipalities in the State of Texas in an attempt to lessen the negative effects of a severe drought is called a Drought Contingency Plan (DCP). This is a plan put in place by cities not only to deal with the adverse effects of a drought, but also to be activated when a city is experiencing unusually high water demands, unanticipated equipment or system failure, or when a water supply source has become contaminated. The primary purpose of a DCP is to conserve the available water supply and redirect water usage to those areas that need it the most.
When drafting a DCP there are two main statutes that need to be looked at: (1) Chapter 11, Section 11.1272 of the Texas Water Code; and (2) Chapter 288, Subchapter B, of Title 30 of the Texas Administrative Code. Section 11.1272 of the Texas Water Code provides information on what entities are required to create a DCP and the proper procedures to be used in adopting and developing the plan. Chapter 288 of the Texas Administrative Code tells us what must be included in the plan, at a minimum.
According to the statutes listed above, a city that is supplying water to its residents as a “Retail Public Water Supplier” must develop and adopt a DCP, and then continuously update it every five years. If the city has 3,300 or more connections that they serve, they must not only develop and adopt the DCP, but they are also required to submit their adopted Plan to the Texas Commission on Environmental Quality (TCEQ). The current deadline to submit an updated DCP is in the month of May, but the TCEQ recommends submitting DCPs in the month of January to ensure the deadline is met.
The primary purpose of a DCP is to establish different levels of “triggering conditions” that must exist before the plan is activated. These levels range from mild drought conditions to moderate, then to severe, and lastly to extreme. Each trigger must be defined and provide the circumstances that must exist before that condition is activated. Next, the DCP must provide information on what type of emergency management program goes with each triggering event. This section must lay out the steps that need to be taken to conserve water when that particular condition is triggered. For example, if a mild drought condition is triggered, most cities will limit the use of water to a small degree, but if an extreme drought condition is triggered, then the use of water in the city would be severely limited.
Having an updated DCP is not only required by law, but if implemented correctly, it can help alleviate the negative impact of a catastrophic drought like the one Texas experienced back in 2011. One thing that is certain in Texas is that there will be more severe droughts in the future. Having an updated DCP is one of many ways to ensure that your city is as prepared as it can be for the inevitable.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.