MINUTES
MIDDLE PECOS GROUND WATER CONSERVATION DISTRICT
BOARD MEETING
August 16th, 2006
On this the 16th day of August 2006, a Regular Session of the Middle Pecos Groundwater Conservation District, of Pecos County, Texas, met in the Courtroom of the Pecos County Courthouse, Fort Stockton, Texas with the following members present, to-wit:
Glenn Honaker President Precinct1
Robert Ezell Secretary/Treasurer Precinct 2 M. R. Gonzalez Precinct 2
Lynn Holland Precinct 3
Jack McIntyre Precinct 1
S. Evans Turpin City of Iraan
Bart Reid Precinct 4
Alvaro Mandujano Precinct 4
Paul Weatherby General Manager
Leslie Elliott Recording Secretary/Clerk
REGULAR BOARD MEETING
Called to order at 1:08 pm.
AGENDA ITEM I Consider and/or act upon minutes of July 19th, 2006.
Upon motion by Robert Ezell, seconded by Lynn Holland and carried unanimously to approve the minutes of July 19th, 2006 as submitted by Leslie Elliott/Recording Secretary.
AGENDA ITEM II Comments from Public and Media (limit 5 minutes per person).
Members of the public present: Brad Davis, Larry Howard and Bonnie Warnock. No comments.
AGENDA ITEM III Consider and/or act upon the Account Payable, Treasurer’s Report and Line Item Transfers.
Upon motion by M.R. Gonzalez, seconded by Robert Ezell and carried unanimously to approve the Accounts Payable and Treasure’s Report. We will be making a Line Item Transfer from Helpers Salary to Office Equipment to cover the over expense.
AGENDA ITEM IV Consider and/or act upon Director representing Fort Stockton.
No action taken.
AGENDA ITEM V Consider and/or act upon Bakersfield L.L.P Water Flood Project.
This project is still on hold, they have not received permission from the University of Texas Lands to proceed. We will be setting up monitor wells around this area and will be doing water analysis and static levels. No action taken at this time.
AGENDA ITEM VI Consider and/or act upon Review Date for Public Hearing on Tax Rate.
At this time Santa Acosta, Pecos County Tax Assessor Collector joined the meeting and explained that if we adopt the new tax rate at .0087 per each $100.00 of assessed valuation then no public hearing is required. We will hold a meeting September 13th, 2006 at 1:00 pm to adopt the 2007 Annual Budget and Tax Rate.
AGENDA ITEM VII Consider and/or act upon Committee/Progress Reports.
Report given by General Manager Paul Weatherby stating there are 2615 wells registered in Pecos County. There are 808 Non-Exempt wells registered (producing more than 17.5 gpm). Approximate number of unregistered Non-Exempt wells, 500. There are 1807 Exempt wells registered (producing less than 17.5 gpm). Approximate number of unregistered Exempt wells, 1000. Aquifers – Edwards/Trinity, Cenezoic Pecos Alluvian, Rustler and Capitan. Irrigation - 200,000 acre feet. Industrial - 8,000 acre feet. NRCS estimated irrigated acreage, 21,000 acres. FSA irrigated crop land report – 90,072.9 acres. This information is approximate and is not to be considered official data.
AGENDA ITEM VIII Consider and/or act upon Historic & Existing Use Applications.
These permit hearings of the Middle Pecos Groundwater Conservation District are being called to order this Wednesday, August 16th, 2006, at 1:55 pm. Because of the unique situation we're in, not having protests to any of the applications, I (Glenn Honaker) intend to proceed today with as many of these uncontested applications as possible, and give the Board the opportunity to actually vote on each application. We may wrap up with all of the applications, or we may need to continue the hearing if we run short on time today.
Let me begin by covering some procedural matters and explaining how we'll work through the applications through this hearing. For the record, I am Glenn Honaker, President of the District’s Board of Directors. Our rules provide that the official record for uncontested applications may be our minutes or hearing reports, so I’d like for the Board Secretary and Paul Weatherby to help me pull together a good set of minutes to serve as the record.
I will serve as the Presiding Officer of this hearing and a quorum of the Board of Directors will also officiate and participate in ruling on the applications before us today. As the Presiding Officer, I will be officiating over these hearings and ruling on any procedural issues. These hearings will be governed by the District’s Rules, the Presiding Officer’s Procedural Guidance Document, and all applicable law.
Notice requirements have been met:
(1) Paul Weatherby timely published the appropriate notice in the newspaper; and
(2) Paul Weatherby provided notice of the hearing to each permit applicant and posted it the District Office and at the County Courthouse, to satisfy the hearings notice requirements.
(3) Additionally, we posted our Notice of Agenda more than 72 hours prior to today’s meeting and hearings, in compliance with the Texas Open Meetings Act.
Because this is the District’s first permit hearings on applications for Historic and Existing Use Permits, I will explain how this hearing is to be conducted before we begin. As I mentioned, there were no protests filed with the District for any of the applications for Historic and Existing Use before us today. Nor is anyone here tonight that seeks to protest. Do I have that correct? There was no one in attendance to protest. Is there anyone in the audience that is here today to protest an application or offer information that is relevant to any of the applications? Seeing none, I should say for the record that absent any timely filed protests or any appearances today to provide relevant information, it will be too late for any party to show up at a later date and attempt to intervene or otherwise participate in a hearing on any of the applications.
I’d like to touch on an important, related issue that directly affects the Board. We may get into a situation with one or more applications where one of us Board members has personal knowledge of a particular application. Or one of us may have an actual conflict of interest based upon our business or family relationships. If that is the case, PLEASE bring that to my attention as soon as you know about it. If it’s a conflict of interest situation, we’ll do what we always do. You’ll recuse yourself and not participate in the discussions and not vote on that particular application. Once we wrap up with that application, then you’ll rejoin the Board to work on the next application.
If you don’t actually have a business or family conflict BUT you DO have personal knowledge about a particular application, then we’ll need to treat you as a witness and get you sworn in and listen to what you have to say, and ask questions if the Board has any. Don’t get me wrong—this isn’t a problem, unless we run into a quorum issue. Your information may be very important to the Board in making a decision. You will also have to recuse yourself from the discussion and vote. But once we conclude our action on that application, then you’ll rejoin the Board to work on the next application.
Even though these applications are uncontested, that doesn’t mean that the Board automatically accepts the claims in the permit applications. We’re bound by law to evaluate each application on its own merits, and look at all relevant information, and then review the statutory criteria to make our final decision. Our General Manager has done quite a bit of work and analysis during his technical review of the applications, as required by our rules. Paul will be summarizing the information in each application for us today, and offering his recommendation. The permit files are in the room right now. If you are interested in looking at information in an application, you’ll have a chance to do so when we get to that application.
The way the hearing will go will be for Paul to run through each application, one at a time. We’ll have a chance to ask Paul questions, or even look at the application if you want to. If the applicant is with us today, we’ll certainly give him or her a chance to make any statements to the Board that he would like to. Given that all the applications are uncontested, it is really not necessary for the applicant to make a formal presentation if the applicant agrees with the General Manager's recommendation and believes that there is enough evidence in the record to support their application. If the applicant wants to add anything to the record, today would be the time, though.
I will want to swear in anyone making a statement, just to make sure that our record satisfies legal requirements, which includes a requirement that information that the Board consider be based on sworn testimony. After we’re done with questions, and if there are no open issues, then I’ll ask for a motion from the Board (1) that recommends a quantity of water to be approved by the Board and that (2) recommends that a permit be issued in that quantity of water subject to the terms and conditions of the District’s permit. Upon the granting of an application, and assuming the applicant is in compliance with the District’s rules and all applicable laws, the District will issue a permit to the applicant. The applicant’s right to produce and transport groundwater shall be limited to the extent and purposes stated in the permit. In denying an application for a permit, the Board shall issue an order setting forth its reasons for such denial.
If we have an application where questions are asked that can’t be answered today, I’d like for us to CONSIDER continuing that particular application until our next hearing—which should be next month. We don’t have to continue it, but it may be appropriate for us to do so to allow Paul to call the applicant and request that he attend the next hearing. Or maybe Paul can spend some time over the course of the month to research the issue. We’ll make a decision on whether to continue it on a case-by-case basis, as the issue may come up today.
Let me talk about the criteria that we have to consider when we take a vote on a motion for a particular application. First, the burden of proof is on the permit applicant to establish that he is entitled to have his permit application granted. As set forth in Chapter 36 of the Texas Water Code and the District’s Rules, the permit applications must meet certain elements to be approved, elements which the General Manager will cover during his presentation. In deciding whether or not to issue a permit, and in setting the terms of the permit, the Board shall consider all relevant factors in the District’s enabling act, Chapter 36, the District’s rules, and the District’s management plan certified by the Texas Water Development Board. Those factors are as follows:
The Board must consider whether:
a) the application contains accurate information;
b) the water well(s) complies with production limitations identified in our rules;
c) the proposed use of water does not unreasonably affect existing groundwater and surface water resources or existing permit holders;
d) the proposed use of water is dedicated to a beneficial use;
e) the proposed use of water is consistent with the District’s water management plan;
f) the applicant agrees to avoid waste and achieve water conservation;
g) the applicant has agreed that reasonable diligence will be used to protect groundwater quality and that the applicant will follow well plugging guidelines at the time of well closure;
h) The District may not impose any restrictions on the production of groundwater for use outside of the District other than imposed upon production for in-district use; and
i) The District shall be fair, impartial, and nondiscriminatory.
Some of you all may wonder how we take into consideration how much water is available in our aquifers, and whether we have enough water if we permit all of the claims requested. The issue of water availability is a very important one, of course. But the decisions we make on how much each historic and existing use permit is do not bind us from limiting groundwater withdrawals now or in the future. As we learn more about our aquifers, and we realize at some point in the future that one of the aquifers is being stressed, whether because of drought or over-pumping or some other reason, we have statutory authority to limit the amount of water that can be withdrawn.
Please remember, though, that Historic and Existing Users take priority over other permit holders. When we adopted our rules and completed our management plan, it was our interest to take advantage of the statutory authority to protect historic and existing users. I can say that based on the claims filed for historic and existing use, we should not have any problem with lack of water supply, at least at the present time.
So now, unless there are any questions, let’s get started by turning to the first application. There were no questions. Paul, I’m going to defer to you on what order you’d like to take the applications. Let me swear you in Paul.
Paul, with respect to all of the applications before us today, do you solemnly swear to tell the truth, nothing but the truth, so help you God?
Paul Weatherby stated “I do”
One other piece of business that affects all of the applications. For purposes of our official record, I need to admit into evidence the permit application and all related information that is in each permit file. Paul, I believe I’m looking at the complete set of files for all of the permit applications before us tonight, over there, right? General Manager Paul Weatherby stated that in fact all Historic and Existing Use applications are here for the record. I will hereby admit all of those into the record.
OK, Paul, let’s turn to the first application. I’ll let you begin.
Paul began with Permittee #1) …and so on. PermitteeLocationAquifer WellsAc/FtUse 1) Old Hovey Ranch FS CE 1 8 AG
At this time Brad Davis was sworn in as a witness to discuss evidence with the Board.
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by M.R. Gonzalez, seconded by Robert Ezell and approved unanimously to accept the Historic and Existing Use Application on the 1 well at 25 acre feet of water per year (instead of 8 acre feet) out of the Cenozoic Aquifer for 250 head of cattle and a circular sprinkler system used to grow 160 acres of grass for agriculture use. This well has supporting documentation for the year 2004 and also personal knowledge. Permit Granted.
2) H. Clay & Elizabeth Warnock FS ET 5 400 AG
At this time Bonnie Warnock was sworn in as a witness to discuss evidence with the Board.
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by Lynn Holland, seconded by Evans S. Turpin and approved unanimously to accept the Historic and Existing Use Application on the 5 wells at 400 acre feet of water per year out of the Edwards Trinity Aquifer for 100 acres of alfalfa, 150 head of cattle, 200 head of sheep and a dairy for the year 1999. These wells were registered with the district in June 2005, but the Historic and Existing Use Application was not administratively complete until July 2006 because of difficulty gathering all the information needed. Permit Granted.
Recess at 2:20 pm.
Reconvene at 2:37 pm.
3) Clarence Stephan Coyanosa ET/CE 14 7039 AG
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by Robert Ezell, seconded by Evans S. Turpin and carried unanimously to approve General Manager/ Paul Weatherby’s recommendation of Historic and Existing Use Application for 14 wells at 4670 acre feet of water out of the Edwards Trinity and Cenezoic Aquifers for 396 acres of cotton, 278 acres of wheat, 75 acre of other fruits and vegetables along with 518 acres in CRP. These wells have documentation supporting them for the years 1989, 1999, 2000 and 2002. Permit Granted.
4) Don Johnson Coyanosa CAP 1 4705 IN
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by Lynn Holland, seconded by Alvaro Mandujano Jr. and carried unanimously to approve General Manager/Paul Weatherby’s recommendation to deny this Historic and Existing Use Application due to the lack of evidence to support the type of uses before plugging this well. This well is registered with the district and is an artesian well and was plugged in 1994. Permit Denied.
5) NES Permian Basin LP Iraan ET 2 44.9 IN
Evans S. Turpin submitted a Disclosure Affidavit and recused himself from the Historic and Existing Use Application due to personal knowledge and interest. Seven (7) Board Members/Quorum were present.
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by Alvaro Mandujano Jr., seconded by Bart Reid and carried unanimously to approve the Historic and Existing Use Application on 2 wells at 44.9 acre feet of water per year out of the Edwards Trinity Aquifer for Industrial Use. These wells are supported by meter readings for the year 2003. Permit Granted.
At this time Evans S. Turpin re-joined the board.
6) Basic Energy LP Iraan ET 1 26 IN
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon recommendation of President Glenn Honaker and Board Member Alvaro Mandujano Jr., this Historic and Existing Use Application will be continued at a later date in order to gather more information from applicant. Continuance Granted.
7) Arlie Sparkman Sheffield ET 1 7.87 IN
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by Lynn Holland, seconded by Bart Reid and carried unanimously to approve the Historic and Existing Use Application on 1 well at 7.87 acre feet of water per year out of the Edwards Trinity Aquifer for Industrial Water Sales. This well has records for the year 1994. Permit Granted.
Reminder from President Honaker that any applicant can request findings and conclusions or a re-hearing before the board no later than the 20th day after the Middle Pecos GCD decision.
Upon motion by Robert Ezell, seconded by Alvaro Mandujano Jr. and carried unanimously to adjourn this Historic and Existing Use Permit Hearing at 3:09pm.
AGENDA ITEM IX Consider and/or Groundwater District Correspondence.
We have received correspondence from Enstor. They are complying with all guidelines that we set forth when we approved their project. There is no depletion in the Capitan Aquifer. We have had no disputes to the Enstor project. We received correspondence from TDLR in reference to the Imperial area artesian wells. We will keep TDLR updated as we receive information.
AGENDA ITEM X Consider and/or act upon Inter-Local Agreement with West Texas Regional Groundwater Alliance Legislative Services.
Upon motion by Robert Ezell, seconded by Bart Reid and carried unanimously to table this item until legal counsel can be consulted and more information gathered.
AGENDA ITEM XI Consider and/or act upon Agenda for next meeting.
Post agenda for special meeting to be held on September 13, 2006.
Consider to adopt Budget for fiscal year 2007.
Consider to set Tax Rate for 2007.
Post agenda for regular board meeting to be held on September 20, 2006.
Consider executive session for Board Members to discuss possible salary increase.
Consider Director for City of Fort Stockton.
Consider Bakersfield L.L.P. Water Flood Project.
Consider correspondence.
AGENDA ITEM XII Consider and/or act upon proposed budget for fiscal year 2007.
At this time the Board discussed items on the proposed budget for fiscal year 2007. A special Board Meeting is scheduled for September 13, 2006 to adopt the budget and set the 2007 tax rate.
AGENDA ITEM XIII Adjourn.
Upon motion by Evans S. Turpin, seconded by Bart Reid and carried unanimously to adjourn this meeting at 4:08 pm.
