JudicialLocal NewsStatewide NewsTaxes & SpendingState Supreme Court Dismisses Houston Lawsuit Over Water Reservoir

After delayed progress on a water reservoir serving both Houston and the Lower Brazos River basin, the legislature mandated it be sold.
September 6, 2022
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The Supreme Court of Texas dismissed a lawsuit filed by the City of Houston over a long-delayed water reservoir and vacated a lower court ruling Friday.

Houston’s lawsuit was filed in 2019 against both the State of Texas and the Brazos River Authority (BRA) alleging that state legislation forcing the city to sell its interest in the proposed Allens Creek Reservoir was unconstitutional and unenforceable.

Slated to be the southernmost reservoir along the Brazos River watershed, the proposed project encompasses a 9,500-acre tract in Austin County about 40 miles west of Houston. The state originally issued a permit in 1974 for the Allens Creek Reservoir to Houston Lighting and Power to provide cooling water for a nuclear power plant that was never built.

In 2000, the City of Houston and the BRA entered an interlocal agreement to purchase the rights and finally build the reservoir, with Houston receiving 70 percent of the water and paying 70 percent of costs and the BRA receiving and contributing the other 30 percent.

After several delays, the state legislature extended the construction deadline to 2018, but according to court filings, “Houston dragged its feet in a way that made it impossible to construct Allens Creek under the parties’ 70/30 ownership.”

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Although BRA and the communities of Fort Bend and Brazoria Counties pressed for progress citing water needs in their growing region, Houston lobbied the Legislature to extend the construction deadline again to 2025, stating that city resources were directed to a different water supply project.

With near-unanimous bipartisan support, in 2019 the Texas Legislature passed an unusual law, House Bill (HB) 2846, mandating that Houston sell its share in the Allens Creek Reservoir to BRA for $23 million.

The City of Houston filed suit in Travis County the following month.

“Houston will fight to keep the resources necessary to ensure that the City can grow, and Houstonians’ needs are met,” Houston Mayor Sylvester Turner said in a statement at the time.

State District Court Judge Karin Crump ruled in favor of the city, finding that HB 2846 violated the Texas Constitution’s prohibition against retroactive law impairing contracts and forced sales of municipal property held for public purpose.

In an appeal, attorneys for BRA and the state argued that Houston did not have “vested rights” in unused water rights, and therefore the sale mandated by HB 2846 did not constitute a retroactive law. They added that the mandated sale was within the public interest, especially for residents and businesses in the lower Brazos River basin, and therefore constitutionally permitted.

The Third Court of Appeals upheld Crump’s ruling regarding the law’s retroactive nature but declined to address other constitutional issues cited by the City of Houston and Turner.

BRA appealed the case to the Supreme Court of Texas, but in the interim, the parties continued to negotiate. Last April, BRA announced an agreement under which the state agency would pay the city $45 million to cover the reservoir, past expenses, and land costs. Turner’s director of government relations told the Houston Chronicle that the city had realized a $15 million profit in the deal.

On Friday, the state’s highest court ordered a dismissal of the case “without hearing oral argument or considering the merits” but vacated the appeals court opinion, writing, “Because the State was not a party to the settlement and the issues presented may be of consequence in other contexts, the Court vacates the court of appeals’ opinion.”

Consequently, the appeals court ruling in Houston v Brazos River Authority will not serve as legal precedent.

The longest river segment in Texas, the Brazos River watershed stretches 840 miles from tributaries in the Lubbock area to the Gulf of Mexico near Freeport in Brazoria County. Once completed, the Allens Creek Reservoir will be one of 12 reservoirs contributing to water management and providing water supply to multiple communities.

The project will enter the permitting and design phase this year, and construction is not expected to begin until 2030 at the earliest. BRA estimates it will cost $500 million.

In 2015, residents, ranchers, farmers, and business owners in Fort Bend and Brazoria Counties formed the Lower Brazos River Coalition to advocate for fair use of the river’s resources and ensure usable water would continue to flow into the southernmost region of the watershed.

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Holly Hansen

Holly Hansen is a regional reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.