Tuesday, March 19, 2013

Judge rules in favor of WVWA

Peschel agrees that HTGCD violated its rules 

SEGUIN — Dwight Peschel, Senior Judge of the 25th Judicial District, has released a letter indicating he is ruling in favor of the Wimberley Valley Watershed Association (WVWA) in its lawsuit against the Hays-Trinity Groundwater Conservation District (HTGCD) and Wimberley Springs Partners (WSP).

HTGCD and WSP had asked for a summary judgment, which was denied, but the judge indicated his ruling would go much further. Jacob's Well from above

“I find that the board’s action [the HTGCD] in finding that Plantiffs’ requests for a contested hearing were untimely filed was arbitrary, capricious, and an abuse of discretion,” Peschel wrote.

It is exactly what the WVWA had alleged against the HTGCD and WSP after conservation district issued a permit on Feb. 21 of 2011 without publishing the district’s recommendations or deadlines. The permit would allow golf course and greenbelt irrigation, according to Malcolm Harris, who in addition to serving on the WVWA board, is also acting as an attorney in the case.

“His ruling went further than to just deny the ruling by saying it was arbitrary, capricious, and an abuse of discretion,” Harris said. “His declaration said that in denying us a contested hearing was telling. If that is included in the final judgment, and his letter indicates that it will be, it means we have prevailed across the board in the lawsuit at the district level.”

Harris said that if that is the case, neither of the defendants would be able to appeal the case.

The WSP permit would allow 163,000,000 gallons of water per year to be drawn from the aquifer. 

“Hydrologic data indicates that this additional amount of groundwater pumping above Jacob’s Well will cause aquifer levels to drop and cause the spring to stop flowing in the future,” the WVWA said in a press release. “It is difficult to assess the full impact of the additional draw down without performing an aquifer test on the wells being considered for use.”

The subdivision in question is located off FM 2325 on Valley Springs Road.

According to the WVWA, hydrologic data indicated the intense amount of groundwater that would be pumped above Jacob’s Well would cause aquifer levels to drop and cause the spring to stop flowing in the future.

The permit by HTGCD was granted on a split 3-2 vote.  WVWA said “Rule 11”  had been violated, which states “each applicant for a new well operating permit shall perform an aquifer test and submit a report as part of the operating permit application.”

Harris has said from the start the lawsuit could have been avoided had HTGCD allowed the citizens who protested the golf course and the permit conditions as written by the developer had been allowed to testify to the district before permitting.

“The HTGCD board had never acted on this,” Harris said. “Then suddenly they did. A large contingent of the public showed up, alarmed, seeking to protest the permit.”

Harris said no one expected the HTGCD to vote on the matter.

“It was the understanding over everyone there — including former HTGCD board members like Jack Hollon — that the deadline for the deadline for formally requesting a contested hearing where testimony was taken would be 10 days after,” Harris said.

The judge agreed, saying the HTGCD ruling “provides that a formal protest against the proposed action prior to the application hearing” should have been conducted.

“Plaintiffs were told by a representative of the HTGCD that filing a request for a contested case hearing within 10 days would be ‘timely’,” Peschel wrote. “There being no rule for when an individual under Rule 5.5 must file a request for a contested hearing, Plaintiffs’ relying on what was told them by HTGCD was reasonable.”

The ruling likely means that HTGCD will have to hold the contested hearing that was denied in 2011, which could potentially overturn the WSP permit.

Courtesy of Wimberley View 


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