San Angelo: Twin Buttes water dispute near settlement (Posted By Mike Mecke)
By Kiah Collier
Published Monday, November 22, 2010
SAN ANGELO, Texas — The end of the city of San Angelo’s five-year-old battle to amend its Twin Buttes Water Rights permit is in sight, but the matter is not yet finished.
An administrative law judge in Austin has decided in the city’s favor on two pending applications that the city submitted to the Texas Commission on Environmental Quality in early 2005, which were later challenged by more than 40 farmers, ranchers and other downstream water rights holders who have argued that the amendments would violate their rights to use the reservoir water.
The judge’s recommendations will go before the TCEQ commission sometime in the next three months. The challengers to the amendments, who filed jointly as the Concho Watershed Association, have filed a series of exceptions to the judge’s recommendation on one of the application amendments.
That amendment application requests “clarification” in the language in the Twin Buttes permit that deals with “what water belongs to the city or that the city could impound in the dam and what water that the city was obligated to pass to downstream water rights holders,” according to Jason Hill, the city’s special counsel who delivered what he called the “good news” to the San Angelo City Council last week.
The portion the application seeks to clarify is a paragraph in the permit that requires San Angelo to release all natural flow downstream on the Concho River, but also permits it to store flood and rainwater “for use in its water system, as well as for eastern Tom Green County farmers served by the Main Canal,” according to a 2008 Standard-Times article published when the association filed a petition opposing the amendments.
Hill and local water attorney Tom Massey, who has also worked for the city, have argued that the paragraph that requires the city to release water to downstream water-rights holders on a non-request basis is null because the paragraph does not exist in a 1979 adjudication certificate, the result of a court review of the water rights along the Concho.
“It contained some innocuous language that quite frankly was more relevant to the pre-adjudication era of water rights management in Texas and it had some language that it carried over into the certificate that really in today’s modern water rights management structure in Texas, didn’t have a place and created some consternation for the Water Utilities Department and how they operated the dam based on that language,” Hill told the council.
Massey said in 2008 that, because the paragraph doesn’t exist in the certificate, it means the water in Twin Buttes is the city’s property and that should be released downstream only on request something Massey said the city has done.
“Stored water is not subject to call,” Massey said. “It’s our water. We paid for the dam. … That’s pretty well-established law.”
Glenn Jarvis, the McAllen-based attorney representing the association, has argued that the paragraph’s absence from the certificate is an error because when the courts were creating adjudication certificates, they did not have the jurisdiction to revise water rights permits.
Although Hill and Massey assured the council that the city has a strong case that will likely trump the exceptions filed in response to the judge’s recommendation or any appeals made after the TCEQ makes its decision — Jarvis is also confident. Jarvis says the association’s argument is still that the missing paragraph is an error, but also that the judge’s decision did not take into account other language in the certificate,
“It has certain provisions in the water rights that protect other water right holders and that is what our argument is, is that the amendment takes away the protection in the water rights that gives protection to other water right holders that they will have water to use.”