MINUTES
MIDDLE PECOS GROUND WATER CONSERVATION DISTRICT
BOARD MEETING
September 20th, 2006
On this the 20th day of September 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
John Dorris Vice President Precinct 3
Robert Ezell Secretary/Treasurer Precinct 2 M. R. Gonzalez Precinct 2
Lynn Holland Precinct 3
Jack McIntyre Precinct 1
Evans Turpin City of Iraan
Paul Weatherby General Manager
Leslie Elliott Recording Secretary/Clerk
REGULAR BOARD MEETING
Called to order at 1:03 pm.
AGENDA ITEM I Consider and/or act upon minutes of August 16th, 2006 and September 13th, 2006.
Upon motion by Robert Ezell, seconded by Lynn Holland and carried unanimously to approve the minutes of August 16th, 2006 and September 13th, 2006 as submitted by Leslie Elliott/Recording Secretary.
AGENDA ITEM II Comments from Public and Media (limit 5 minutes per person).
Sharon Roosevelt of the Fort Stockton Pioneer suggested that the comments from the Public and Media be listed at the end of the agenda/meeting so as to allow questions to be asked of all/any agenda items.
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 John Dorris and carried unanimously to approve the Accounts Payable, Treasure’s Report and Line Item Transfers.
AGENDA ITEM IV Consider and/or act upon Director representing Fort Stockton.
This item will remain on agenda until a Director representing the City of Fort Stockton is appointed. No action taken at this time.
AGENDA ITEM V Consider and/or act upon Bakersfield L.L.P Water Flood Project.
This project is still on hold. No action taken at this time.
At President Honaker’s discretion proceed to Agenda Item VII.
AGENDA ITEM VI Consider and/or act upon salaries of MPGCD Employee(s).
During the meeting, the Board reserves the right to go into executive session for any of the purposes authorized under the Texas Open Meetings Act, V.T.C.A., Government Code, Chapter 551, for any item on this agenda or as otherwise authorized by law.
At this time the board will go into executive session at 2:13 pm.
Reconvene at 2:39pm.
Upon motion by M.R. Gonzalez, seconded by Lynn Holland and unanimously approved to increase General Manager Paul Weatherby’s salary by 5% and Secretary/Clerk Leslie Elliott’s salary by 3% effective October 1st, 2006.
AGENDA ITEM VII Consider and/or act upon Committee/Progress Reports.
We have not had any new registrations this past month. We are processing a request for a drilling permit. We are still in the process of setting up monitor wells. No action taken at this time. 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, September 20th, 2006, at 1:27 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) Clarence Stephan Coyanosa ET 2 5494 AG___________
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by Robert Ezell, seconded by Evans Turpin, and carried unanimously to accept the Historic and Existing Use Application on 2 wells at 5494 acre feet of water per year out of the Edwards Trinity for the year 1999 for 98 acres of wheat. Both wells are supported by FSA certification. Paul Weatherby General Manager recommends this application be approved. Permit Granted.
2) Basic Energy L.P. Iraan ET 1 26 IN____________
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by John Dorris, seconded by Evans Turpin, and carried unanimously to accept General Manager/Paul Weatherby’s recommendation that this Historic and Existing Use Application be denied, due to lake of evidence to support this well. Permit Denied.
3) Marsha Wolfe Bakersfield ET 6 1602.84 AG___________
The Board heard the evidence, deliberated, and then entertained the following motion.
Upon motion by John Dorris, seconded by Robert Ezell, and carried unanimously to accept the Historic and Existing Use Application on 6 wells at 1602.84 acre feet of water per year out of the Edwards Trinity for the year 2005 for 9.2 acres of oats, 182.4 acres of sorghum, 75.1 acres of cotton and 277.4 acres of barley. All the wells are supported by FSA certification for farm #896 #897 and #17. All well in system (6 wells) 267 acre feet/well. Paul Weatherby General Manager recommends this application be approved. 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 Lynn Holland, seconded by Robert Ezell, and carried unanimously to adjourn this Historic and Existing Use Permit Hearing at 2:00 pm.
AGENDA ITEM IX Consider and/or Groundwater District Correspondence.
General Manager Paul Weatherby reported of water restrictions due to aquifer re-charge in the Austin area. Rebates were applied to our Cingular account. There is going to be a meeting in El Paso in November regarding marketing water.
AGENDA ITEM X Consider and/or act upon Inter-Local Agreement with West Texas Regional Groundwater Alliance Legislative Services.
Upon motion by John Dorris, seconded by Robert Ezell and carried unanimously to enter into the Inter-Local Agreement with the West Texas Regional Groundwater Alliance Legislative Services. Legal Counsel, Mike Gershon stated in an e-mail that this agreement looks to be very well drafted and compliant with the Inter-local Cooperation Act.
AGENDA ITEM XI Consider and/or act upon Agenda for next meeting.
Next meeting October 18th, 2006 at 1:00 pm.
Bakersfield Water Flood Project will remain on the agenda.
Director representing City of Fort Stockton.
At this time we will return to Agenda Item VI.
During the meeting, the Board reserves the right to go into executive session for any of the purposes authorized under the Texas Open Meetings Act, V.T.C.A., Government Code, Chapter 551, for any item on this agenda or as otherwise authorized by law.
AGENDA ITEM XII Adjourn.
Upon motion by John Dorris, seconded by M.R. Gonzalez and carried unanimously to adjourn this meeting at 2:40 pm.
