Lower Neches group agrees to re-write amendment
16 municipalities in upper basin petition TCEQ for a contested case hearing on water rights
BY TERRIE GONZALEZ

Sixteen municipalities with interests in the Lake Columbia water project filed letters of protest with the Texas Commission on Environmental Quality (TCEQ) by the Monday deadline. Cherokee County, along with the cities of Rusk and Jacksonville, submitted letters to object to an amendment requested by the Lower Neches Valley Authority (LNVA) in Beaumont that has the potential to usurp water rights in the watershed north of Lake Sam Rayburn, including Lake Columbia and Lake Fastrill.

The Angelina Neches River Authority (ANRA) called a special meeting Oct. 22 to brief municipalities on the pending deadline and to encourage them to submit protest letters seeking a contested case hearing. State Sen. Robert Nichols, who was also invited to attend the meeting, viewed the meeting as an opportunity to allow both ANRA and LNVA to air grievances.

The amendment proposed by LNVA appends a 1963 water rights agreement on Lake Sam Rayburn, and if approved by the TCEQ, would give the LNVA sweeping control over water rights in the upper basin, which is currently outside of their jurisdiction.

"Board members of the Lower Neches Val- ley Authority did not realize the full impact of the amendment that they approved last year," said Sen. Nichols. "Now that they realize it, they voted unanimously (Oct. 18) to amend it."

LNVA attorneys are working this week on a new draft. "We can't give an exact time line (of when the draft will be completed)," said Dr. Brian Babin, chairman of the basin study committee for LNVA. "What I want the draft to say, in layman's terms, is that we want the participants to get the water they have been paying for."

Kenneth Renneau, general manager of ANRA, said it is possible that the amendment will be written in such a way that all parties will be satisfied. If that is the case, then TCEQ will allow municipalities to withdraw their letters of opposition to TCEQ.

"By applying to amend a 1963 permit, which everyone is happy with, they started an administrative procedure at TCEQ," said Mr. Renneau.

If the revised amendment is not accepted by municipalities in the northern basin, then TCEQ will have to decide whether the threeperson commission will hear a contested case.

"The commission meets twice each month, and they would review it to see if it meets the standards," said Terry Clawson, TCEQ media relations manager.

Following the TCEQ board meeting, the contested case would be referred to the State Office of Administrative Hearings (SOAH), a quasi-judicial agency established to handle disputes between state agencies. Once SOAH makes a recommendation, TCEQ can rubber stamp the proposal, accept a portion of it or make a different ruling altogether.

Dr. Babin feels optimistic that the revised amendment will meet the approval of ANRA and participating municipalities in the Lake Columbia project.

Mr. Renneau is also hopeful but guarded. "My question (to LNVA) is simply this: If you realize right now you are causing grief in the mid and north basin, why not withdraw the application?"

LNVA and ANRA also disagree over the issue of water rights vs. contractual rights.

Municipalities which are participating in the Lake Columbia project hold contractual rights expressed in terms of a percentage of ownership.

"Water rights, on the other hand, means that ANRA's permit from the state would be split, for instance, between ANRA and LNVA," explained Mr. Renneau. "Each would have a percentage of water stated in the permit.

"It's as if you and someone else have joint ownership rights in your home," he said. "Your needs and your vision for your home may be different from the other owner."

ANRA board members feel that contractual rights are as enforceable as water rights, but avoids the difficulties of joint ownership.

When the disagreement between ANRA and LNVA reached its pinnacle earlier this month, LNVA said it submitted the original amendment to TCEQ at the request of Homeland Security, the FBI and the U.S. Coast Guard. However, LNVA declined to elaborate on the connection between Homeland Security and LNVA's need for more water.

ANRA and many municipalities in the Lake Columbia project think that invoking Homeland Security is a smokescreen to control the water and deliver it to a massive petrochemical industrial base in the Beaumont-Port Arthur area.

Before the Neches River meets the Gulf of Mexico, it splinters into a network of 400 miles of canals constructed in the 1940s to irrigate rice farms. As rice farming declines, agricultural land is transformed into industrial uses.

"Trying to get water under the guise of Homeland Security is not the right thing to do or the truthful thing to do," said state Rep. Chuck Hopson, (D-Jacksonville), who also attended the Oct. 22 meeting. ""I think it was a really good thing that we got people from LNVA with ANRA and have a dialog going. It was a very positive meeting, and ANRA got to air some things that had been building."

Cherokee County Judge Chris Davis agrees.

"LNVA was trying to pull a sneaky, fast one on us and change those old water rights so that industrial needs would be met before residential needs. If this amendment had passed, it would have given them control of the whole basin."

Judge Davis also agrees with Sen. Nichols that LNVA's board of directors did not understand the scope or impact of the proposed amendment. "I hope we caught this problem in time."

Dr. Babin told the Cherokeean Herald that LNVA has been "in the water business" since 1913.

"We have provided for agricultural and industrial use with water rights and those who are junior to us," he said. "We have never had a water call, and we have always provided water that we promised to sell."

He suggested that the timing of this issue may have something to do with Dallas and that city's long term water plan. "They have filed a petition to contest our amendment," he said.

Dr. Babin said it would be a "big mistake" for ANRA to sell any water rights to Dallas and allow water to be transferred out of the basin. "The political reality is that East Texas can't stave this off much longer," he said. "The best thing we can do is cut the best deal we can to control our water, our natural resources."

Rusk City Manager Mike Murray, who attended the meeting with Mayor Angela Raiborn, said he was glad the two opposing water districts had an opportunity to speak face to face Oct. 22.

"It was a really good meeting, and I appreciate the hard work of Sen. Nichols and Rep. Hopson to try and reach a compromise."

He said the disagreement of contractual rights vs. water rights may prove to be a point that neither side is willing to negotiate.

"As I understand it, ANRA has offered almost 40 percent of contractual rights to LNVA," he said. "However, they did not use the term 'contractual rights' in the meeting. They seem focused on obtaining water rights with inherent right to water."

The original LNVA amendment didn't pass the smell test, said Mr. Murray, and that is why the city of Rusk submitted a letter of protest to TCEQ.

Approximately 20 attended the meeting in Jacksonville at the Norman Activity Center, and included city officials from Whitehouse, Troup, Jacksonville and Rusk.

Dr. Babin said he joked with Kathleen Jackson, LNVA vice-president, in the car on the 165-mile drive from Beaumont to Jacksonville. "I told her, 'We may need some body guards when we go in.'"

"I think they left the meeting knowing they had stirred up some issues," said Mr. Renneau. "We will review (the revised amendment) with an open mind."