Wednesday, September 05, 2007

"Giving a handful of people the power to use eminent domain anywhere in Texas."

Kaufman County won't vote on Pickens' freshwater district

But Roberts County calls election on Pickens' pitch for freshwater district

September 4, 2007

The Dallas Morning News
Copyright 2007

T. Boone Pickens needed the support of at least one of two counties Tuesday to push ahead his plans to bring Panhandle groundwater and wind-generated electricity to North Texas.
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And that's what he got.

Looking at the potential economic benefits to the sparsely populated Panhandle, Roberts County commissioners called an election for Nov. 6 that will allow a handful of the businessman's supporters to vote to create a freshwater supply district.

The state empowers such districts to use private property far outside their boundaries, whether the owners like it or not – a key to Mr. Pickens' plans to acquire the rights of way needed to bury 320 miles of water and power lines.

Meanwhile, commissioners in Kaufman County balked at approving a similar election. Some agreed with District Attorney Rick Harrison that there was a probable flaw in the election petition from landowner Mike Boswell, a Pickens employee. At the end of the day, Mr. Boswell's group agreed to resubmit its petition later and seek a May election.

Mesa Water spokesman Jay Rosser called the Kaufman County decision "a minor, although temporary, setback in our efforts to move this project forward on a number of fronts." He said that although the company disagrees that there was a flaw, it will review its application and move accordingly.

Mr. Rosser said Mesa officials still want another water supply district in Kaufman County in order to have flexibility to deal with any obstacles that might arise. "It's important to have as many options available as possible as we move forward," he said.

Mr. Pickens formed Mesa Water several years ago to acquire water rights under four Panhandle counties and market it to urban areas in Texas. So far, there are no buyers.

He formed another company, Mesa Power, to build windmill farms in the Panhandle, transmit the power to North Texas and add it to the state's electrical grid.

Approval of the freshwater supply district is close to a sure thing in Roberts County because, according to County Judge Vernon Cook, all five of the landowners who would vote within the district are Pickens employees or supporters.

Today is the deadline by which a county can order a Nov. 6 election. Roberts County commissioners voted 4-1 to call the district election there.

"The majority felt that the potential economic benefit, we needed to take advantage of it," Mr. Cook said, referring to potential jobs and to money that Mesa Power would pay to landowners to lease acreage for windmills.

Mr. Rosser said the Pickens companies' next steps are to continue signing up landowners for the wind-energy project and to try to find a buyer for the water.

"Clearly, today's decision in Roberts County helps us to advance that ball and will show to the appropriate agencies and individuals that we're serious about these projects," he said.

Collin County Judge Keith Self – through whose county a Mesa Water pipeline would run under a scenario connecting it to Lake Lavon – doesn't like the idea of either district giving a handful of people the power to use eminent domain anywhere in Texas.

"We still ought to see if the eminent domain laws protect people outside of that district," Mr. Self said. "I just think there's something fundamentally out of step in having a small district be able to condemn a 300-mile strip that has nothing to do with the area."

In Kaufman County, commissioners had enough doubts Tuesday morning to unanimously table Mr. Boswell's petition – although for a different reason: Mr. Harrison said the petition could be flawed because state law might have required that at least one filer live within the district when the petition was filed Aug. 6. None of the filers lived in the proposed district at that time.

Mr. Cook said that the same legal issue was raised in Roberts County but that commissioners decided it didn't apply.

In Kaufman County, Mr. Boswell is proposing a freshwater supply district to build 69 high-end homes around a former quarry lake – as well as to enable the Pickens projects.

Several nearby landowners were annoyed that they hadn't heard about the project until a few days ago and were concerned about the eminent domain powers that such districts have to seize private property. And some questioned the necessity of a freshwater supply district when the area is already served by water companies.

After the meeting, Billy Wynn, general manager of the Elmo Water Supply Corp., said he had talked with Mr. Boswell's group about supplying water to the 69 homes. Mr. Wynn gets his water from Terrell, which in turn receives it from the North Texas Municipal Water District. Mesa Water has been trying to sell its Panhandle water to North Texas Municipal.


Freshwater supply districts are a type of local government. Under Texas law, they:

• Can be created to conserve, transport and distribute freshwater from any sources for domestic and commercial purposes.

• Have authority to execute contracts, hire employees, acquire water rights, construct improvements and use eminent domain – either within or outside their boundaries – to acquire land.

• Can borrow money at favorable interest rates by issuing tax-exempt bonds.

• Are created after either 50 residents of a proposed district or a majority of voters within its boundaries petition county commissioners to order an election. Typically, such elections involve only a few voters who favor creating the district. The petition must include the district's boundaries, the general nature of the projects proposed and why the district is needed. The commissioners can consider, and hear testimony on, information in the petition and whether the proposed projects would "benefit the land" within the proposed district.

• Are run by five supervisors. Under legislation that took effect Saturday, the only qualifications for a supervisor are that he or she be a Texas resident, own property within the district and be at least 18. Previously, a supervisor had to be a registered voter living within the district.

SOURCES: Chapter 53, Texas Water Code; Texas Senate Research Center; Texas Practice Series volume on county and special district law, by Austin lawyer David B. Brooks; Dallas Morning News research

© 2007 The Dallas Morning News Co

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