Minutes of Meeting
September 7, 2004 - 4:00 P.M.
PVGCD OFFICE
Cuero Plaza Mall-Suite 1129
Cuero, TX 77954
Board Members Present: Errol John Dietze
(Chairman), Bob McCurdy (GM), Tim Voelkel, Bob Davis,
Gary Colman, and Bubba Steen.
IN ATTENDANCE: Jim Allison (PVGCD
attorney), Kay Wild (PVGCD Office Assistant), Mila Walker
(citizen), Caroll Ann Werland
(citizen), and Glen Ray (reporter/Cuero Record)
Call to order: A quorum being
present, and all notices properly posted, the meeting was called
to order at 4:01 P.M. by the Chairman, Errol John Dietze.
approval of minutes: Minutes of the
August 18th board meeting were presented in the board
packet. With no corrections, Gary Colman made a motion to accept
the minutes as read, second by Bob Davis; the motion carried
unanimously.
PUBLIC COMMENT: The chairman stated
that there would be a three (3) minute time limit per comment per
person. The first comment was presented by Mrs. Walker. She
said in a conversation with Bob McCurdy, she stated there were
twelve key issues on the proposed Rules and Management Plan that
she wanted addressed. The first issue was concerning the
defining of groundwater in DeWitt County as an aquifer. In
a letter she submitted to Bob McCurdy, she detailed her reasoning
of why she felt this needed to be reworked in the Rules and
Management Plan. Secondly, she addressed the Policy
Resolution Statements adopted by the Board 10/10/01, and
indicated that they need to be included in the Rules and
Management Plan. She said in comparing the Policy
Resolution Statements to the current Rules and Management Plan,
she felt that it did not specifically include those policies.
Her concern is that “when the Rules and Management Plan are
adopted and put into affect, the Policy Resolution goes
away.” She feels that there is nothing in the Rules
and Management Plan that references the Resolutions, or states
that they will remain in effect going forward. She
indicated that she felt that there were discrepancies. Kay
Wild instructed the Board at this time that the questions Mrs.
Walker was referencing was in a letter recently given to Bob
McCurdy, and none of the Board members had seen the letter prior
to the meeting. The issues were not the exact questions
from her first letter that was deferred to this Board meeting for
addressing, nor was it on the agenda for this Board meeting.
Mrs. Walker indicated that it was some of the same concerns as
presented in the first letter, but were more explanatory and in
briefer form. She was allowed to continue. Her third
issue was regarding future new wells and the grandfather clause.
Mrs. Walker said she is requesting a document from the
Conservation District that clearly states that as a landowner
with the wells installed prior to March, 2004, and she and her
heirs, have been grandfathered; and the landowner and heirs are
not to be regulated by the Rules and Management Plan being
adopted and put into effect. She said that there may be
future new wells or replacement wells drilled on the same land
owned under the grandfather clause, and that the landowner and
landowner’s heirs should also be protected under the same
terms and conditions presently stipulated in the existing
grandfather clause provided by the District. Bob McCurdy
informed Mrs. Walker that all new wells in DeWitt County have to
be permitted if drilled after March 2004, even on land having
wells that are exempt. Mrs. Walker said she did not object
to the permitting, but felt that the heirs should be protected
under the grandfather clause. Attorney, Jim
Allison, said that this was getting into legal issues at this
point. He had not seen the document before (letter from
Mrs. Walker) and said it raises some legal issues. He asked
that the Board hear Mrs. Walker’s comments and explanations
of her concerns, and that he would prepare a draft response
particular to the legal issues. Chairman Dietze said that
they would give Mrs. Walker more than three minutes to address
her concerns. She then addressed the wording
“hearings” in the District Rules and that it did not
say “Public Hearings” throughout the document, and said
that she “feels that landowners and voters would not have to
be included when the District Board decides to hold a hearing to
amend the District Rules and Management Plan, without the input
from landowners and voters that would be most affected by the
amendment of these District Policies.” She also
pointed out a typo, “reheating” instead of
“rehearing”, which she had communicated to Mr.
McCurdy in an earlier conversation. She indicated that the
word “public” gets dropped out of the document. Jim
Allison said that hearings are addressed in the Water Code and he
would be glad to get a response to her and site the sections;
hearings and public hearings are the same. Bob McCurdy said
the rules for meeting notices are under Chapter 36, requiring a 7
day notice prior to a public hearing and 72 hours prior to
meetings. Mrs. Walker’s concern is the leaving out of the
word “public” when referring to hearings. Mrs.
Walker also feels that the words “exempt” and
“non-exempt” need to be clarified throughout the
document. Mrs. Walker feels that the “verbiage”
is too vague and leaves it open to the manipulation of the
District Board. The next concern from Mrs. Walker was
regarding large production wells and the Emergency Drought
Management Plan and the installation of large production wells.
She said there are key things that she picked up on that need to
be addressed or clarified in the documents before they are
adopted and put into effect. Mrs. Walker also feels that
variances regarding distancing of wells are too vague, have no
guidelines, and left up to the interpretation of whom ever is
serving on the Board at the time. This concluded Mrs.
Walker’s comments, and Chairman Dietze asked if there were
any comments from the Board regarding the issues Mrs. Walker
brought to the table. Gary Colman said that he felt that Jim
Allison should address her questions/concerns. Jim Allison
said that he recommended that the Board hear Mrs. Walker’s
concerns at this meeting, but that he would like to draft a
response to those concerns that raise legal issues, or that are
addressed by Chapter 36 of the Texas Water Code. Mr.
Allison told Mrs. Walker that we can only do what is in the
statues. Tim Voelkel said that the Board was glad to have
public comment and have citizens concerned about what is going on
and offer input. Mrs. Walker said that she thinks Mr.
McCurdy has had quite a few people come by the office with
questions. Bob McCurdy said that the Board has to be advised as
to what legal position to take on all the Rules, and we are
abiding by the Texas Water Code. That is the guideline and
that is what we have to go by. Bob McCurdy said that we
want to address all of these issues as best we can, but being a
taxing entity, and having the responsibilities we have, we have
to be very careful that we do it in the guidelines that the State
gives us. Mrs. Walker said that she “did not want to
lose her water rights.” She said that “there was
nothing in her deed that specified water rights, or having to
give water easements, and that there is no proof that her water
is being supplied by an aquifer or sitting on an aquifer.”
Bob McCurdy said that “we operate under the TCEQ and the
TWDB. When you speak of these aquifers, and when you go to the
State or regional level, they will say that you are in the Gulf
Coast Aquifer. It is a very broad term, but that is the
best description you are going to get from any engineering study,
at any level. The Gulf Coast Aquifer is different in different
places and it has different layers in it. There is no way
to say which major or minor aquifer you are in.” Mrs.
Walker stated a hypothetical situation of what if she drilled a
well and came up with no water. “What is going to
happen then? Am I going to suck water out of my neighbors?
Because it is an aquifer, are you then going to provide me the
water on my land because every well I drill comes up dry and my
neighbor has lots of wells and tons of water?” Bob
McCurdy said that if your neighbor is doing damage to your well,
it will be addressed. Mrs. Walker said that she has good
tanks on her property, and good water, but there might be
situations where people do hit dry wells. Jim Allison said
that “if you go deep enough in DeWitt County, you will hit
the Gulf Coast Aquifer; it is under your land. It may be
1,000 ft. under, but it is under there.” Mrs. Walker
indicated that there was an instance she knew of where a well
went down 300 feet and came up with contaminated water. Bob
McCurdy said that there are no guarantees on quality of water,
but there is an abundance of water in De Witt County at any given
level. Bob McCurdy said there are areas that have so much sulfur
and chlorides that you can’t drink the water and can only
use it for livestock. He said that a lot of people have
drilled irrigation wells and found that they can’t use the
water because it has so much salt in it. Bob McCurdy
also said that “what the big boys are looking for is an
abundance of water, and they don’t care if it is salty as
they would be treating it one way or another. That is what
we are trying to do with the District is hold the line on massive
pumping out of DeWitt County so that you will have water
available on your place. That is the whole purpose of this
District.” Mrs. Walker asked if the District could not
accomplish that control without declaring her groundwater as an
aquifer. Jim Allison said that the State defines what
groundwater is and puts the groundwater under regulation of the
District. Mrs. Walker said she wanted to see that ruling,
and Jim Allison said he would send her those sections that apply.
Mrs.
Walker said she fells it should have been stipulated in her deed
that her water rights belong to the Conservation District. Bob
McCurdy said “you own your water rights. With the rule
of capture the way it is right now you own your water
rights.” Jim Allison said that groundwater is
subject to limited regulation by the District, or in the absence
of a District, the State. Jim Allison also said that
the deed doesn’t have anything to do with it. You get what
you get and what you are legally entitled to when you purchase
something, and you are always subject to State law. Bob McCurdy
said if there wasn’t a district here, the State would come
in and declare a water management area. This is the reason
so many district have formed so that the groundwater is regulated
locally rather than by the State. If we don’t do it,
the State will. Mrs. Walker reiterated that she feels that
the Policy Resolutions from before need to be included in the
Rules. Mrs. Walker said that there are a lot of things that
were committed to, adopted and passed in the Policy Resolutions
that she does not find in the “verbiage” of the Rules
and Management Plan. Jim Allison said that he would address
that in his draft response as well. Jim Allison said that
“statute requires, and provides, this order of documentation
in regulation with the District Management Plan. The Management
Plan is a broad document that addresses general issues and
principals that has to be filed and approved by TCEQ, and that
has been done by this District. Rules are means of
enforcement, and they must be adopted at the public hearing, and
they are subject to Chapter 36 as to what goes in the rules.
Policies are still formal statements of the District but they are
not stated in the Rules or the Management Plan. The
Management Plan can only be changed with the approval of the
State, Rules can only be changed after public hearing and
adoption by the Board, policy can be changed by the Board without
the necessity of a public hearing. Those are the levels of
regulation. Generally the Rules contain the permitting process
and things of that nature that apply to wells and drilling.”
Mrs. Walker said again that she sees no reference in the Rules or
the Management Plan to the policies that were voted in. Jim
Allison pointed out that “they are policies and not rules;
they are on different levels. You don’t state your
policies in the Rules or the Management Plan because they are
policy statements.” Mrs. Walker asked what happens to
the Policy Resolution since the infrastructure under which the
District is formed is going to be executed on the Rules and the
Management Plan. Jim Allison said that there are
instructions for the General Manager to follow just like the
Rules, and they can be changed by the majority of the Board.
Mrs. Walker said that “the way it is written, the Board can
do anything they want, any time that they want.” Jim
Allison said “that this is why you elect the Board. It
is like saying the school board can run the school; yes, that is
what they are elected to do.” Mrs. Walker
said the things that were laid out in the Policy Resolution for
start-up are very specific of what the District is going to do
and feels that when you get to the Rules, the policies
aren’t stated. Jim Allison said that you don’t
put every policy in the rules. Mrs. Walker said that if she
had an issue and comes before the Board, and say that your policy
was this and the rule is this … which is going to supersede;
the rules or the policy? Jim Allison said “you’re
assuming that there is a conflict and I don’t assume that.
Just because the policy is not in the rules does not mean there
is a conflict.” Mrs. Walker said that she
feels that there could be. Mrs. Walker indicated that that is why
she wanted a committee formed to go paragraph by paragraph and
say, “You say this, this is what this says, so are you
contradicting what you promised in the Policy Resolution, or does
this not apply any longer.” Jim Allison said he could
not answer hypothetical questions and asked Mrs. Walker to point
out some area in the Rules that contradict. Mrs. Walker
then addressed a paragraph regarding the grandfather clause the
she feels is just vaguely addressed. Jim Allison said he did not
think it is vague at all. Mrs. Walker said that the Policy
Resolution specifically states that all the wells are going to be
grandfathered, but yet she doesn’t have anything with regard
to a document that specifically states the terms or conditions of
being grandfathered. Jim Allison explained the meaning of
the term grandfathered to Mrs. Walker; “Grandfathered means
that the production and permitting requirements and spacing
requirements do not apply to a well that is in place prior to the
adoption of the Rules. If you increase production, then
that increased production would be, and is required by law,
treated like any other production of groundwater in the District.
The District, I think, must grandfather previously existing wells
and their production. I don’t think you can
constitutionally adopt a district and impose regulations on those
previously existing wells and their production. But, any
new wells, or any increase in production of those wells may bring
them within the regulations of the District; that is what
Grandfathering means.” Mrs. Walker
indicated that she still does not think it is clearly stated in
the Rules with regard to the “verbiage.” Jim
Allison said that you don’t put all the verbiage in the
Rules. Mrs. Walker said “it is difficult to go through and
reference every single paragraph because a lot of clarifications
or insertions or additions impacted numerous paragraphs
throughout the Rules.” Jim Allison said it is
also difficult to address situations that are displayed
hypothetically as well. Mrs. Walker said that the
grandfather clause exists in the Policy Resolution and there is
no elaboration or clarification in the Rules. Jim Allison
said he did not see where clarification is needed or would be
beneficial, and if there is a conflict, he assured her that the
Board would like to know what the conflict is; and if there is a
conflict, they would address it. Mr. Allison said “as
best I can tell, the Policies and Rules are compatible.”
Mrs. Walker asked if she should go through paragraph
by paragraph. Jim Allison said he would rather take the
document (her letter) back and prepare a written response;
“I think that will be more constructive.” Tim
Voelkel said if there is a contradiction anywhere in these
documents, he again assured her the Board would want to address
it as much as anybody else. Mrs. Walker’s next
question was regarding who serves as a hearing examiner? Jim
Allison said that the Board would have to appoint one. Mrs.
Walker indicated that that term is not in the glossary. Mrs.
Walker asked if it is it one of the Board of Directors, a
citizen, or a landowner? Gary Colman told Mrs. Walker that
it can be anybody; it is whoever the Board appoints. Mrs.
Walker asked if there were requirements of knowledge with regard
to the person appointed. Mr. McCurdy assured her that we
would of course try to find somebody that would be qualified.
Chairman Dietze said that it would match the circumstance. Depending
on the circumstances determines how and where we go to get a
hearing officer. If the issue pertained to a certain issue,
we would go to that individual who is qualified in that area.
Mrs. Walker then said “so my land groundwater is going to be
declared an aquifer and going to fall under these rules.”
The Board responded that it is an aquifer, it’s not being
declared, it is an aquifer. Jim Allison pointed out that it is
not the decision of this Board, it is State law. He said
“it is no different from any one else in this room. The
water under every piece of land in the State of Texas is subject
to regulation by the State. It is all groundwater and part
of an aquifer.” Mrs. Walker said that “even though
geologically it’s not plotted on the map and identified as
an aquifer?” Jim Allison indicated that one of the
things being done right now is having a modeling study done to
try to determine aquifers in this county. It is largely
unmapped until someone starts producing. The State says
that groundwater is subject to regulation, no matter where it is.
Bob McCurdy said the State looks at it in two areas, surface
water and groundwater. Jim Allison said the State
doesn’t allow any local regulation of surface water. Fortunately,
they have allowed some local regulation of groundwater. In
stead of doing it all in Austin, they have allowed groundwater
districts. Mrs. Walker indicated that she looks forward to
Mr. Allison’s response in reference to the State code.
Jim Allison said “I think you will find it helpful; I think
you will find a lot of these things are answered in Chapter 36 of
the Texas Water Code.” Mrs. Walker said that she has
talked to some people with the Goliad Conservation District and
they did receive a document from their district stipulating that
they were grandfathered. Gary Colman said if you register
your wells (Goliad did a voluntary registration of pre-existing
wells), you will have a document that says you are grandfathered.
The burden of proof that it’s an existing well is on the
back of the landowner if they choose not to coming in and
register their exempt well(s). Mrs. Walker indicated that
she has documents from the drillers, and inspection of her water
as to when they were drilled. Gary Colman said that
the PVGCD would accept that as documentation that it is a
grandfathered well. The District offers for someone to come in
and have the District certify that it is a pre-existing well;
therefore grandfathered well. Mrs. Walker indicated that the
drillers would be able to verify it as a pre-existing well.
Jim Allison said that drillers may not be here any longer; they
come and go. Bob McCurdy said that all drillers are
required to submit a drilling log to Austin prior to the
formation of the PVGCD, and now they submit logs to this District
office. She then said that “It seems that I am better
off protecting my own wells and keeping them out from under your
umbrella.” Jim Allison said that he would want his
well registered with the District and would want to hang on to
all of documents; you then have two back-ups. Mrs. Walker
said that she was going to put her documentation in the safety
deposit box. Bubba Steen said “having your documents
in a safe deposit box does not exempt you from the umbrella of
this District. If your land is in this Groundwater
District, it is subject to the rules and regulations of this
District; and that goes back to State law. You not wanting
them in there doesn’t matter, if it lies within the
guidelines of the PVGCD, it is under the control, as far as the
control goes, of this body.” Mrs. Walker said that
“ya’ll are the ones creating the rules.” Bubba
Steen said that that is correct. Bob McCurdy said that we
are operating under State guidelines so what we do is according
to State law. Chairman Dietze said “I think you have
the same exact concerns that everyone on this Board has. The
difference is that we have been doing this for three or four
years, maybe five. We have been discussing the same issues,
same concerns you have, and we probably understand it a little
better than you do. We are here just to protect your water
and try to not make it so complicated. When we hired Jim,
we went all over Texas looking for the right person for the job
to help us implement our Rules and regulations and Management
Plan. Bob McCurdy went to other districts, along with
myself and Jim, to find out what we thought would best serve this
area. We are here just to protect your water and try not to
make it so complicated and draw any more attention than
necessary. We’re a public Board; we are here to try to
please you. At the same time we are seeing some of our
neighbors being challenged on issues that we’re not ready to
be there. We’re not involved in the transportation of water
at this moment. We’re not involved in the same issues
that Refugio and Goliad and Victoria are at this moment. If
and when that happens, then we are probably going to have a lot
of these hearings. Right now we are babysitting your water.
We’re babysitting the regulations that the State and
Legislature implemented to try and protect what we think in the
future could be a real issue. We’re not trying to hide
anything, we’re trying to do it as simple as possible and
still have rules and regulations that have some variation, some
elasticity that we can stretch if we need to. You and I and
everybody in this room have the same aquifer in DeWitt County.
To me, that is not an issue. You’ve made it a big
issue, but it is not an issue. It is something that we
cannot control.”
Amendments to District Rules: Jim
Allison, per the instructions of the Board, took the proposed
changes that were laid out at the last meeting on August 18th,
and incorporated them in the text of the Rules with the exception
of the one deletion regarding where the use straddles district
boundary lines. Chairman Dietze indicated that every one
had a copy of the recommended rules changes and asked for a
motion to accept the rules changes as proposed. Tim Voelkel
made the motion, seconded by Bob Davis; motion carried
unanimously.
ELECTION DATE ORDER: Chairman Dietze
read the Election Date Order: Pursuant to Section
41.0052, Election Code, the Board of Directors of the Pecan
Valley Groundwater Conservation District does hereby change the
date of its general election for officers to the first Tuesday
after the first Monday in November of each odd-numbered year.
Bob McCurdy stated that the purpose of the change is to be in
the general election thus promoting a larger turn-out, and also
saving the District money. We will contract with the county
to run our election. Bob Davis asked how much it will cost
us to have the county hold the election for us. Bob McCurdy
indicated that he has not inquired about it yet. Jim
Allison said that they usually charge a minimal amount. Bubba
Steen Steen made the motion to make the change in election date
according to the presentation; seconded by Tim Voelkel. The
motion carried unanimously with all 5 votes. The document
was signed by the Chairman.
FINANCIAL SUMMARY: The
financial statement was provided in the board packet. Little
activity occurred since the previous report with entries for
payroll, well deposit refunds and utilities paid out. The
current balance as of this date is $65,181.46. Tim Voelkel
made the motion to accept the financial report as presented,
second by Bob Davis; the motion carried unanimously.
ADJOURNMENT: The Chairman called for
a motion to adjourn the meeting. Bob Davis made the motion,
Tim Voelkel seconded; the motion carried and the meeting was
adjourned at 5:30.
EXECUTIVE SESSION: The Board began
the executive session at 5:45. All agenda items, with the
exception of a personnel issue and legal advise regarding
criteria for public comments at public meetings, was deferred to
the next scheduled Board meeting.
Sec/Gary Colman
Recorded: Kay Wild/Office Asst/PVGCD