Full document / COSOC-W-86-002 - the National Sea Grant Library

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Recreation and environmental uses are at the bottom of this list.
Second, oven if the Water Commission wanted to allocate water for
freshwater inflows, there is little if any unappropriated water
available. Existing water permits provide vested rights which cannot
be altered and which can be cancelled only after abandonment or ten
years of non-use.
Civen these limitations and the nature of the statutes designed to
protect estuaries, any efforts at maintaining adequate freshwater
inflows have to be made on a case-by-case basis, which results in
piecemeal protection. This fragmented approach also requires a
considerable investment of time and money from any group or agency
trying to preserve the state's estuary systems, because their efforts
must be repeated each time a new threat arises.
Because the public trust doctrine is not wall developed in Texas, and
the issue of third party standing has not yet been settled, it is
difficult to predict the outcome of a suit to protect freshwater
inflows into estuaries. A court could easily determine that standing
would depend on showing special injury. Even if standing were
granted, there are some grounds for arguing that the trust doctrine in
Texas has bean subsumed into the state water code, which prohibits
appropriations that are detrimental to the public welfare and requires
The Commission, before issuing a permit, to consider the effect of the
permit on bays and estuaries.
Any litigation is expensive and time consuming. If a suit were
brought to preserve freshwater inflows, the courts could reach a
decision which limits the power of the public trust doctrine and
thereby establish a precedent which would restrict future efforts.
Even if a case were settled to the benefit of the estuary, it might be
determined on factors peculiar to one situation without producing any
broader gains or guidelines. On the other hand, a broad and positive
ruling involving the doctrine would result in extensive gains for
estuary protection and for other natural resources as well. For
example, a ruling like that in the Mono Lake case could give
freshwater inflows a ouch higher priority than they have under the
current water code preferences, and night also be instrumental in
freeing up water on overappropriated rivers through the revocation fo
existing permits.
Both the coats and the potential gains of public trust litigation arc
high. Since the attitude of Texas courts is currently so unclear,
such litigation might best be postponed until other options have been
attempted or until the courts give sooe indication of favoring the
public trust approach.