Thursday, November 14, 2002

"It would give them the power of eminent domain throughout the state as long as it's connected with the business of the water district."

Pickens Seeks Water District To Gain Eminent Domain Power


By David Bowser

Livestock Weekly
Copyright 2002

MIAMI, Texas — Vernon Cook is facing a dilemma. As a resident of the semi-arid Texas Panhandle, he opposes shipping water from rural Roberts County to metropolitan areas down-state. As Roberts County judge, he must follow the laws of the State of Texas.

Judge Vernon Cook set 1 p.m. Tuesday, Nov. 12, in the district courtroom of the Roberts County courthouse as the time and place for a public hearing on a petition to create the Roberts County Fresh Water Supply District No. 1.

Although petitioned by Roberts County landowners Minna Susie Reynolds, Katy L. Wilde and Rebecca Taylor Epps, the move is seen as a step by landowners with Mesa Water Inc. to pump water from beneath their Roberts County ranches and sell it to thirsty cities in other parts of Texas.

"When they filed that petition," Cook says, "I was obligated to set a hearing date for the petition."

Steve Stevens with Mesa Water says that such a water district would give the landowners involved with Mesa the power of eminent domain across the state and the ability to finance the project with tax-exempt bonds.

Cook says they would also have the power to levy taxes.

"It gives them the power of taxation within that district," he says.

One of the things that worries Cook, however, is the impact that the power of eminent domain might have on county residents outside the proposed district. That power would allow the district to cross private land whether the landowner wants them to or not. By law, however, the landowner has to be fairly compensated.

"It would give them the power of eminent domain throughout the state as long as it's connected with the business of the water district," Cook says of the proposed district.

He says he's always wondered how Mesa was going to get the power of eminent domain.

When T. Boone Pickens, the Roberts County landowner and Dallas businessman who formed Mesa Water Inc., announced the formation of the corporation more than two years ago, one of the first problems he faced was how to transport the water. A pipeline was the most effective means, but major aqueducts are usually constructed by government entities that have the power to condemn rights-of-way, something Mesa did not have at the time.

Cook says he always figured the end user, a municipality or similar political entity, would provide the power of eminent domain to extend a pipeline from the Panhandle to the city buying the water.

Pickens told the Texas Water Development Board in August in Austin that he intended to form a water supply district. Pickens has always maintained that the water could not be sold unless a pipeline could be built to transport it.

Richard Torkelson with J.P. Morgan in Austin last summer said he expected the right of way to be gained through negotiations, but that even if condemnation proceedings were used, landowners would be compensated.

"You negotiate rights of way," Torkelson says. "There are lots of powerlines, pipelines, roads and other things where the use of eminent domain tends to be minimal. One of the things you don't want to do is create a lot of fear that people are just going to ramrod this through."

Torkelson says landowners are going to get paid for pipeline rights-of-way.

The petition filed in Roberts County asks the county commissioners to create a fresh water supply district of about 46,507 acres in rural Roberts County for the purpose of conserving, transporting and distributing fresh water from any sources for domestic and commercial purposes inside and outside the proposed district. The proposed district would have all the powers, authority, rights, privileges and functions conferred by the Texas Water Code and other state laws to such political entities.

Although the district would include only about a third of the 150,000 acres aligned with Mesa, the petition notes that other landowners in the vicinity would provide about 112,000 more acres in water rights, and that additional water rights may be obtained.

The core property appears to be Pickens' ranch and the ranches of three of his neighbors.

Most of the landowners involved, the petition says, have high-impact permits to produce water upon designation of destination users, or buyers, issued by the Panhandle Ground Water Conservation District.

Cook admits that there are people in Roberts County who support a move to sell water as well as those who oppose it.

"There's strong sentiment against it," he says, "and there's strong sentiment for it. Most of the ones with sentiment for it want to make a dollar out of it."

That's their choice, he adds.

"My concern is for the long-range aspect of this deal," Cook says.

The permits issued to Mesa Water landowners by the Panhandle Regional Ground Water Conservation District conform to the Regional Water Plan's goal of maintaining at least 50 percent of the water in storage in the aquifer as of 1998 for the next 50 years, known as the "50-50 rule." Still, Cook questions whether the water will be there.

"I'm not sure that the 50-50 rule is not short-sighted itself," he says. "I know this won't be a problem for my generation or probably the next generation, but since it is a finite resource, I'm concerned about future generations. When it's gone, we have no alternatives for it."

The aquifer to be tapped is the Ogallala, a saturated sand formation that extends from the Texas South Plains north across much of the Great Plains to South Dakota. While other aquifers, like the Edwards Aquifer in Central Texas, essentially a series of underground limestone caverns, may be replenished quickly by rain, recharge of the Ogallala is limited.

"The Ogallala does not in effect recharge," Cook points out. "The best number I ever heard was three inches per year."

Many hydrologists think that number may be optimistic.

"Three inches is minuscule," Cook says, "when you're taking acre-feet out."

Cook says the county is already seeing some impact from a Canadian River Municipal Water Authority well field that began pumping last December in Roberts County.

"The water level is dropping," Cook says. "A lot of these shallow windmills around here are just drilled into the water zone, not to the red bed, especially the older ones."

Cook thinks they will start going dry soon.

Pickens says the establishment of the well field by CRMWA, and later water rights acquisitions by the City of Amarillo, led to the organization of Mesa Water.

Mesa Water Inc. is a group of landowners, including Pickens, who say they're worried that CRMWA and Amarillo will suck all the water from beneath the ranchers' land. To realize economic benefit from the ground water in Roberts County, Pickens maintains, landowners have to be able to market their water.

The permits issued to Mesa Water landowners limit the destination of the water to municipal governments, water authorities or other political subdivisions within the state.

"The general nature of the proposed projects for the district is to construct, maintain and operate a water supply and distribution system, including the acquisition of water rights, the development of a well field, the development of a pipeline system and the sale of water for domestic and commercial purposes to destination users," the petition says.

No buyers have been identified to date, though Pickens in the past has talked about trying to sell the water to San Antonio, Dallas, Fort Worth or El Paso. Pickens says there is only enough water to provide one, not all, of the metropolitan areas.

"I've been very vocal about a lot of this stuff," Cook says. "Since this is in my court, it kind of gives me a judicial problem."

He says he doesn't support the formation of the district, but he adds that it doesn't appear that there are any grounds to prevent it.

It's more a procedural matter than anything else, he says.

Cook talked to several lawyers about the matter when the petition was first filed, and says he received several different opinions.

The part of the Texas Water Code dealing with elections and special districts was apparently re-written over the past few years, and that is what is leading to the confusion.

Roberts County Attorney Leslie Breeding, who was on vacation when the petition was filed, is now researching the law and is expected to brief the county commission at its regular meeting the morning before the public hearing.

Cook says the county has also retained an attorney in Austin who specializes in procedural cases.

One paragraph in the water code says a county commission may reject the petition if it thinks it would not benefit the land in the proposed district.

The word "benefit" is key here.

While to sever the water from the land may not be a benefit to some, the landowners whose land is involved apparently believe it is a benefit.

That argument, however, may be moot because that part of the water code may have been re-written.

Cook says he's concerned that statutes designed for the betterment of the people of Texas are being manipulated for personal gain.

"That's my bottom line concern," Cook says.

While the law is somewhat vague, it appears that the county commission can establish a fresh water supply district and name temporary supervisors. The temporary supervisors then order an election to name a board of supervisors.

Stephens says the petition asks the county commissioners to name as temporary supervisors for the district Lou Boone, Gerald Billingsley, Katy Wilde, Minna Susie Reynolds and Rebecca Taylor Epps, all of whom live within the proposed district.

Under the Texas Water Code, a public hearing must be scheduled between 15 and 30 days of the date when the petition is filed, though the county commission does not have to take action on the day of the hearing. The county commission is given broad discretion with regard to the hearing.

The final decision will lie with William Clark, Ken Gill, Kelly Flowers and Jim Duvall, the Roberts County Commissioners.

© 2002 Livestock Weekly:

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Wednesday, November 13, 2002

Rep. Mike Krusee files massive transportation bill

Bills are already causing clashes

Two months ahead of session, ideas on moment of silence, abortion spark dissent

November 13, 2002

Ken Herman, David Pasztor,
American-Statesman Staff
Austin American-Statesman

The process of translating campaign promises into legislation began Tuesday as lawmakers began stuffing bills into the front end of the Capitol meat grinder.

What comes out the other end will be determined during the 140 days of the Texas Legislature's 78th regular session that begins Jan. 14.

Tuesday's opening day of bill prefiling included efforts by Republicans, who will control both chambers for the first time since 1870, to mandate a daily moment of silence in public schools, ban same-sex marriages and require doctors to show color photos of unborn fetuses to women considering abortions.

The moment of silence bill was filed by Sen. Jeff Wentworth, R-San Antonio. A similar measure was filed in the House by Rep. Ruth McClendon, D-San Antonio. Each bill would require schools to set aside 60 seconds for students to "reflect, pray, meditate or engage in any other silent activity that is not likely to interfere with or distract another student."

Samantha Smoot, director of the Texas Freedom Network, which opposes efforts it thinks violate church-state separation, said the Wentworth and McClendon bills offered "a moderate approach to the school prayer issue."

"But we are concerned that the legislation invites amendments from far-right legislators anxious to instate mandatory, government-sponsored prayer in Texas public schools," she said.

A Dallas Democrat, Rep. Steve Wolens, was the first to toss a tax-increase bill into the mix. Wolens wants to add 50 cents to the 41-cent-per-pack levy on cigarettes.

Money will be a key issue next year as lawmakers try to craft a balanced two-year budget in the face of a projected shortfall of $5 billion to $12 billion.

Other ideas lobbed into the Capitol included requiring 5-year-olds to go to school (compulsory education now begins at 6 in Texas ), no-interest loans for college students who maintain a B average or better, and allowing the death penalty for murders linked to terrorism.

A priority of Gov. Rick Perry got its legislative start Tuesday as Rep. Mike Krusee, R-Williamson County, filed bills to help make good on Perry's campaign promise to build a 4,000-mile Trans Texas Corridor , including major new highways, pipelines and railways at a cost of $175 billion.

Perry has said his plan could be financed by an infusion of private and federal money.

By the time the session ends, the House and Senate will consider thousands of bills.

In 2001, 8,847 pieces of legislation of various types (proposed laws, proposed constitutional amendments, measures honoring people who died, measures honoring people who didn't die) were filed.

A total of 4,631 measures won approval. Only 1,809 of those were bills that required and got the signature of Perry, who set a record by vetoing 82 measures in a single regular session.

The opening shot in what is shaping up as a contentious battle over tort reform and rising premiums for medical malpractice insurance was fired Tuesday by Sen. Jane Nelson, R-Flower Mound, whose bill would cap the amount of money plaintiffs can win in malpractice lawsuits. Nelson's bill, which already has four co-sponsors, would limit noneconomic damages for things such as pain and suffering to $250,000.

The bill also would limit the fees attorneys can earn in malpractice cases, and would allow juries to consider whether a plaintiff has other sources of money -- such as disability payments or insurance -- when deciding how much to award.

Nelson's bill closely tracks the wishes of the Texas Medical Association, which blames out-of-control lawsuit costs for rising insurance rates, which it says are prompting some doctors to leave their practices.

"We are very excited and supportive of Senator Nelson's bill," said association Executive Vice President Lou Goodman. "It is in line with the package of reforms we are looking for."

At a news conference rolling out the legislation, Nelson said "patients are finding themselves abandoned because their health-care provider has been forced out of business due to the exploding costs of liability insurance."

But critics said Nelson's bill is built on a flawed premise. The problem, they said, is the insurance companies, not lawsuits.

"Statistics show that the number of doctors in Texas are rising while the number of medical malpractice claims are decreasing," said Dan Lambe, executive director of Texas Watch. "Why are the premiums still going up, and why aren't we forcing insurance companies to open their books and justify their rates?"

Jack McGehee, president of the Texas Trial Lawyers Association, vowed to fight the bill "until the last dog dies."

A companion bill by Nelson also would beef up the state Board of Medical Examiners in its efforts to weed out bad doctors.

Doctors who perform abortions would be required to ensure that women are given a range of literature -- including color photographs of unborn fetuses -- before going ahead with the procedure under a bill filed by Rep. Frank Corte Jr., R-San Antonio.

Among other things, Corte's bill would require the Texas Department of Health to produce literature about the medical risks of abortion, adoption possibilities, financial assistance available to expectant mothers, and the father's liability for child support. The information must also include detailed descriptions and pictures of a fetus's development in two-week increments.

Abortion providers would be required to make sure patients read the literature, and that they sign forms indicating they have done so.

Kae McLaughlin, executive director of the Texas Abortion and Reproductive Rights Action League, called Corte's bill fundamentally misguided.

"It's not necessary," she said. "It can be cruel to give extraneous information to a woman who would prefer to be able to have her child. And it's totally lopsided information."

By the same reasoning, McLaughlin said, doctors also should be required to provide literature about the medical risks of continuing a pregnancy.; 445-1718

Copyright (c) 2002 Austin American-Statesman: