State Sen. Glenn Hegar (R-Katy) yesterday blasted the board of directors of the San Antonio Water System after the San Antonio water utility declared the Lower Colorado Water Authority to be in breach of a contract between the two agencies.
On Tuesday, the SAWS board approved a resolution declaring the LCRA in breach of an agreement to develop a joint water project that would create 330,000 acre-feet of water to be shared by the two agencies.
The LCRA-SAWS Water Project is a proposal intended to develop alternative water supplies that could help meet long-term needs in the Lower Colorado River Basin and the San Antonio area. As part of the proposal, LCRA and SAWS signed a contract to conduct a seven year feasibility study to evaluate the project.
Hegar, who represents a large portion of the Colorado River Basin, called SAWS’ decision to declare a breach of contract “frivolous,” and said the San Antonio-based water utility was acting “as a bully.”
HEGAR
“Today’s SAWS board action is deeply disappointing. I am disturbed that SAWS would take this action all the while pursuing groundwater alternatives in other areas of my senate district simply because the study results didn’t reveal the answers they wanted,” Hegar said. “You can’t get water from a turnip and the whole purpose of the study period was to determine if water was truly available. If the results indicated that the water isn’t there, it isn’t there.”
Hegar noted the contract between the two entities did not guarantee an amount of water; it was a contract to study the water availability.
“Unfortunately, it appears that SAWS is taking the approach that filing a frivolous lawsuit and acting as a bully will get the results they desire. The fact remains that the science and only science will determine the feasibility of the project and not the filing of a frivolous lawsuit,” Hegar said. “It has become apparent that the amount of water developed from the project is not enough to meet both the needs of the Colorado Basin and the San Antonio area.”
Hegar noted the enabling legislation and LCRA’s contract with SAWS requires the LCRA board to find that the project adequately protects and benefits the basin. The major implication of the preliminary results is that no water can be made available to SAWS from the project as it was originally envisioned.
A major factor influencing the conclusion was an updated population projection for the Lower Colorado River Basin. The estimate shows that between 14 and 25 percent more water than is included in the 2006 regional water plan will be needed to meet municipal and industrial needs in the Lower Colorado River Basin in the next 50 to 90 years.
Hegar said that finding shows the study did what was intended.
“The study worked exactly the way it was envisioned. The Colorado Basin cannot, and should not, proceed if the water is not available. The study results do not eliminate the potential for a long-term water-sharing agreement, but the board action by SAWS certainly sends the wrong message about future discussions,” Hegar said. “LCRA has expressed a willingness to continue to work with SAWS to understand the implications of the data collected throughout this study and to decide how best to move forward. I am disturbed at SAWS’ frivolous reaction.”
Not surprisingly, the San Antonio water group sees the situation differently, and blamed the controversy on what it called a “unilateral decision” by LCRA to terminate the project.
SAWS Chairman and former San Antonio city manger Alex Briseno said the resolution passed by the SAWS board was in reaction to LCRA board actions last December that unilaterally pulled the plug on the project even after San Antonio residents paid out $40 million for studies.
He said LCRA overstepped its bounds and violated the contract.
“Under our contract, LCRA doesn’t have the right to pull the plug on this project,” Briseno said.
Contractually, SAWS is allowed to exercise an option to terminate the agreement with LCRA once every year. If that option is exercised, the contract calls for repayment of half of all study costs to SAWS.
Additionally, SAWS claims, last December’s action by the LCRA board resulted in a failure to meet statutory requirements set forth in the enabling legislation for the project.
“Prior to their December 2008 decisions, all statutory requirements were being met. Through their actions, they have abandoned 180,000 acre-feet of water for their basin which would have been created by the project, and we’ve lost at least 90,000 acre-feet of water on top of that,” Robert R. Puente, SAWS President/CEO said.
Under the agreement between the two agencies, the entire LCRA basin was set to gain 180,000 acre-feet of water for the Colorado River Basin through the use of enhanced technology and innovative conservation efforts paid for by SAWS. The new supply of water for the basin would have guaranteed higher lake levels in the Highland Lakes, and enhanced downstream flow for agricultural irrigation and the environmental health of bays and estuaries.
In addition, San Antonio was poised to receive up to 150,000 acre-feet of water for its long-range water needs. Recent study results indicated that amount would have instead been in the neighborhood of 90,000 acre-feet, Puente said.
Puente said LCRA’s decision to halt the project made no sense.
“We don’t understand how LCRA could contemplate giving it all up. Not only are we prepared to pay for the studies, but we would pay for new canal irrigation infrastructure, new technology, and a reservoir,” Puente said. “The studies have even shown higher levels in the Highland Lakes. If I lived in their basin, I’d be concerned about how they would make up the loss of all that water and how it would be paid for if this project does not proceed.”
Among the actions taken by LCRA last December was a decision that 50,000 acre-feet in the Highland Lakes would no longer be reserved for use with the project, as well as the adoption of new long-term demand projections for the Colorado River basin.
That, Puente said, was a violation of the contract between the two agencies.
“The contract does not allow the use of independent demand projections. LCRA has chosen to ignore a contractual requirement to use data submitted by Region K and on file with the Texas Water Development Board in 2001,” Puente said.
Briseno said SAWS has tried to work out the dispute with LCRA, but has been rebuffed.
“We’ve attempted to salvage the project with them over the past several months, and most recently LCRA passed on an opportunity to reconsider their decisions. It’s extremely frustrating that they’ve played with public money this way and have chosen to place our region’s long term supply at risk.” Briseno said. “We’ve acted in good faith, paid our money on time and complied with the terms of the contract for seven years. Now they have studies on our dime that benefit their basin, and the citizens of San Antonio have nothing. Our sincere hope is that we can salvage this project or come to a reasonable settlement for this breach that won’t require litigation.”
The contract between the two agencies calls for a process to resolve disputes. If a resolution cannot be reached, the matter could be taken to the courts.
SAWS has retained the Austin-based law firm of George & Brothers to handle the dispute.
