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2012-06-28

Cow Creek G.W.D. litigation ordered into mediation

By Carolyn B. Edwards BCC Staff Writer

It was expected that the adoption of the DFCs (Desired Future Conditions) by groundwater districts throughout the state would result in some lawsuits. It was expected that the Texas Supreme Court's decision in Edwards Aquifer Authority v Day in February of this year would lead to more.

However, a lawsuit involving the Cow Creek Groundwater Conservation District in Kendall County and a property owner in that district pre-dates most of that activity concerning changes in Texas water law.

Earlier this month, the parties involved in Cow Creek v Donop were ordered into mediation by 216th District Court Judge Keith Williams.

In 2010, the district voted to cut landowner Perry Donop Jr.'s annual pumping limit to 97.5 acre-feet. That was down from 308 acre-feet granted under a permit issued in 2001.

Donop's permit said the water would be used to irrigate oats and coastal Bermuda on his property.

One acre-foot equals 325,851 gallons.

Donop's suit claims the conservation district is obligated to protect historic use by pumpers.

The Cow Creek board noted that Donop's annual use measured by meters showed him pumping about 20 acre-feet per year.

Donop is represented in the lawsuit by Richard Mosty of Kerrville, who also serves as the attorney for the Bandera County River Authority and Groundwater District (BCRAGD). Mosty is also questioning a Cow Creek GWD rule that claims the district can bill Donop for the district's attorney and experts fees if Donop loses his permit appeal.

According to the Texas and Southwest Cattle Raisers Association, there is a Texas law that says plaintiffs have to pay the damages to groundwater districts if their case is without merit.

Cow Creek GWD is represented by Mary Sahs, who served as the BCRAGD's attorney prior to the Bandera district's replacing her with Mosty in the fall of 2011.

In February, the Texas Supreme Court ruled that while landowners have a vested interest in the water under their land, employing historical use as a standard for issuing permits violates the rules of the Texas Water Code.

However, some water experts have opined that water districts can't restrict permits based on the fact that the owner has no historical data.

According to the Cow Creek GWD's website the district is currently under Stage 3 Drought Restrictions.