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2015-10-15

BCRAGD sends Flying L case to state

By Carolyn B. Edwards BCC Staff Writer

After more than a year of discussions and hearings regarding a protest from the Flying L Guest Ranch Ltd., members of the Bandera County River Authority and Groundwater District (BCRAGD) Board of Directors voted last week to send the issue to the State Office of Administrative Hearings (SOAH).
The ranch has requested a variance from a permit issued by BCRAGD's General Manager David Mauk stipulating the allowance of 240 acre feet of pumped water per year. They claim their existing permit was arbitrarily changed by Mauk; that they own more acreage than the new permit is based on; and that their previous permit entitles them to 2,096 acre feet annually. As a point of reference, the City of Bandera pumps around 200 acre feet per year.
The ranch also wants their permit to allow them to use all that water for agricultural, industrial, recreational and municipal use. They are currently permitted for commercial, domestic and irrigation usage only.
Mauk had issued the new permit in February of this year to be in accordance to changes in the district's rules and regulations adopted in 2014.
While little to no progress has been made toward an agreement between the two parties in the course of the variance hearings, a number of challenging legal issues have come to light.
During a hearing held at the water district in June, Greg Ellis, attorney for the general manager, urged care in dealing with water rights that may belong to property owners in the separate Flying L Ranch Subdivision. The Guest Ranch is claiming to have kept the water rights when those lots were sold, but no deeds have been offered in evidence.
Ellis suggested the BCRAGD board turn the hearings procedure over to the SOAH. "A contested hearing is like a trial and the board sits as judge and jury." SOAH provides an administrative judge to hear the case and make sure it follows the law. After the evidence has been properly presented, the judge makes a recommendation to the BCRAGD board. "The board has the final say," Ellis said.
After the board voted to turn the job over to the state agency, Ellis warned them about ex parte communications. "Board members cannot talk to, email, write to or in any way communicate with anyone about any part of this matter," Ellis explained. "If they do, they can't vote!" Constituents are hereby advised not to call their representatives on the BCRAGD board to chat about this issue. Any questions should be directed to the general manager.
Flying L Guest Ranch Ltd. has agreed to split the SOAH costs. However, BCRAGD will be solely responsible for the expenses of its attorneys, expert witnesses and other costs.
The SOAH hearings will be held in Bandera.
At the beginning of last Thursday's (Oct. 8) BCRAGD quarterly meeting, a number of people took advantage of the public comments section of the agenda, mostly to voice their opposition to the granting of the request for a variance.
John Hegemeier, mayor of Bandera, said the variance would "negatively affect the City of Bandera and anyone [in the county] who uses the Trinity Aquifer." Hegemeier added that while it is "difficult to spend taxpayer dollars on attorneys," it seems to be necessary in this case.
Several speakers thanked the BCRAGD board for "seeing to it that water is used...fairly," including Rachel Mulherin from the Medina Lake area and Ed Barnes, facilities director of the Bandera Independent School District, which operates two water systems.
Mike Crandall and Henry Bussey, landowners, agreed that the river and the lake are vital resources for the county and that aquifers affect the river and lake. Bussey said, "Flying L is asking for a 9-fold increase without an explanation...I think the impact will be greater than we anticipate."
Clifford Herbst, longtime resident and rancher, asked the board to refuse the request, saying that the increased pumping would affect "all of us."
Former BCRAGD board member Ernie de Winne, who serves on the board of the water system at Bandera River Ranch, presented data contrasting the amount of water his system pumps versus what Flying L is requesting. "I've played golf there when there was over pumping and swampy areas," he said. "You don't issue permits for the maximum amount you can pump."
Veterinarian Conrad Nightingale, who owns a business and lives next door to the ranch said both of his wells have gone dry since the ranch installed a water park. "I've also heard people complaining about water running across Bottle Springs Road [on the eastern side of the property]" he said. "All I'm asking is that Flying L reconsider its request and be neighborly."
The only person who spoke on behalf of the ranch was their attorney, Renee Ruiz, who insisted that whatever Flying L pumps from the aquifer has no effect on Medina Lake or the Medina River.

(Writer's note: "Ah, Renee. The leg bone's connected to the knee bone, the knee bone's connected to the thigh bone....")