Meeting Date: December 4, 2018 Request for Council Agenda Item Department: Legal Report: _____ E-6 Person presenting to Council: Thomas Gwosdz Resolution: X Ordinance: _____ Public Hearing: _____ Topic of Council Item A resolution authorizing the City Manager to execute a settlement agreement with the Guadalupe-Blanco River Authority resolving the contested case hearing regarding an application by GBRA for an amendment to certificate of adjudication No. 18-3863, and declaring an effective date. Background information GBRA filed an application to amend Certificate of Adjudication No. 18-3863 with the Texas Commission on Environmental Quality (TCEQ). Subsequent to the initial filing, GBRA amended its application to include domestic uses and added a diversion segment on the Guadalupe River from GBRA’s Saltwater Barrier and Diversion Dam upstream to a point in Comal County, Texas. The City of Victoria protested the 18-3863C Application, alleging that the Victoria’s surface water rights would be negatively impacted by the 18-3863C Application. Prior to the contested case hearing, City staff negotiated a settlement agreement to resolve the dispute. Under the terms of the settlement agreement, GBRA and the City agree that GBRA shall reserve 241 acre-feet of water from the total it is allowed to divert under the certificate, and that the City may divert up to a total of 241 acre-feet of water during each 10-year period, at a rate not to exceed 18 cubic feet per second. In accordance with Article III, Section 8 of the Home Rule Charter of the City of Victoria, the City Attorney hereby files this written statement with the City Secretary that this compromise adequately compensates the City for anticipated – yet undefined – damages that would likely have occurred as a result of the amendment, and that this compromise avoids the cost and uncertainty of continued litigation. Staff recommends approval of the settlement agreement. Cost Amount of Expenditure: Fund #: Account #: Documents approved by Legal? Cost Center #: Finance Approval: Legal Approval: Important Dates for Tickler file: Contract Expiration Date: Contract Renewal Date: Other (_______________): __________ __________ __________ Termination Deadline: Performance Deadlines: Other (_______________): __________ __________ __________ Resolution No. 2018-_____R E-6 A resolution authorizing the City Manager to execute a settlement agreement with the Guadalupe-Blanco River Authority resolving the contested case hearing regarding an application by GBRA for an amendment to certificate of adjudication No. 18-3863, and declaring an effective date. Whereas the Guadalupe-Blanco River Authority (GBRA) filed an application to amend Certificate of Adjudication No. 18-3863 with the Texas Commission on Environmental Quality (TCEQ), and then subsequently amended that application to include domestic uses, along with adding a diversion segment on the Guadalupe River from GBRA’s Saltwater Barrier and Diversion Dam upstream to a point in Comal County, Texas; Whereas the City of Victoria protested the 18-3863C Application, alleging that the Victoria’s surface water rights would be negatively impacted by the 18-3863C Application; Whereas the City has since negotiated a settlement agreement to resolve the dispute whereby GBRA and the City agree that GBRA shall reserve 241 acre-feet of water from the total it is allowed to divert under the certificate, and that the City may divert up to a total of 241 acre-feet of water during each 10-year period, at a rate not to exceed 18 cubic feet per second; Whereas in accordance with Article III, Section 8 of the Home Rule Charter of the City of Victoria, the City Attorney hereby files this written statement with the City Secretary that this compromise adequately compensates the City for anticipated – yet undefined – damages that would likely have occurred as a result of the amendment, and that this compromise avoids the cost and uncertainty of continued litigation; Now therefore, be it resolved by the City Council of the City of Victoria, Texas: 1. purposes. The foregoing recitals are found to be true and correct and are incorporated herein for all 2. The City Manager is authorized to execute a settlement agreement with the GuadalupeBlanco River Authority to resolve the City’s protest against GBRA’s 18-3863C Application, attached hereto as Exhibit “A” and incorporated herein, with changes in form as approved by the City Attorney. 3. This resolution shall become effective immediately upon adoption. Passed, this the 4th day of December, 2018 Ayes: Nays: Abstentions: Approved and adopted, this the 4th day of December, 2018 _______________________________________ Paul Polasek, Mayor of the City of Victoria, Texas Page 1 of 2 Attest: Approved as to Legal Form: ______________________________________ April Hilbrich, City Secretary _______________________________________ Thomas A. Gwosdz, City Attorney Distribution: Copies sent: _____________________________ Legal Department Public Works Finance Department Page 2 of 2 Exhibit SOAH DOCKET NO. 582-18-4649 TCEQ DOCKET NO. 2016-0530-WR APPLICATION BY THE BEFORE THE STATE OFFICE GUADALUPE-BLANCO RIVER AUTHORITY FOR AN OF AMENDMENT TO CERTIFICATE OF ADJUDICATION NO. 18-3 863. ADMINISTRATIVE HEARINGS SETTLEMENT AGREEMENT BETWEEN THE GUADALUPE-BLANCO RIVER AUTHORITY AND THE CITY OF VICTORIA THIS AGREEMENT is entered into by and between the Guadalupe-Blanca River Authority (GBRA) a conservation and reclamation district created under Article VXI, Section 59 of the Texas Constitution with of?ces at 933 East Court Street, Seguin, Texas 78155, and the City of Victoria (?Victoria?), a home-rule municipality located in Victoria County, Texas. Recitals A. GBRA ?led an application to amend Certi?cate of Adj udication No. 18-3863 with the Texas Commission on Environmental Quality (TCEQ) that is currently pending before TCEQ (the Application?). B. Subsequent to the initial ?ling, GBRA amended its application to include domestic uses and added a diversion segment on the Guadalupe River from Saltwater Barrier and Diversion Dam upstream to a point in Comal County, Texas. C. The TCEQ staff proposed a draft amendment to Certi?cate of Adjudication No. 18-3863 that incorporated amendments to the 18-3863C Application and imposed certain special conditions (the ?Draft Amendment?). The said Draft Amendment is attached hereto and fully incorporated herein by reference as Exhibit A. D. Victoria protested the 18-3863C Application, alleging that the Victoria?s surface water rights would be negatively impacted by the 18-3 863C Application. Page 1 of4 E. Victoria and GBRA wish to resolve their differences over the 18-3863C Application. In consideration of their mutual desire to resolve their differences, Victoria and GBRA agree as follows: Terms 1. Each calendar year, GBRA agrees to reserve a quantity of water from the total amount GBRA is authorized to divert that year under Certi?cate of Adjudication No. 18-3863, as amended, for use by Victoria (?Womack Water?). The quantity to be reserved by GBRA shall be 241 acre-feet, less the amount that Victoria has already called for within any 10 year period, as described in Paragraphs 2 and 7. 2. Victoria may divert up to a total of 241 acre-feet of Womack Water within each 10-year period, with the ?rst period starting on January 1, 2019 and ending on December 31, 2028. 3. Victoria?s maximum rate of diversion for the Womack Water at any time under this Agreement shall not exceed 18 cubic feet per second. 4. Any Womack Water diverted under this Agreement shall be diverted at diversion points authorized for Victoria under Victoria?s TCEQ water use Permit No. 5466. 5. Victoria shall notify GBRA in writing at least seven (7) calendar days prior to diversion of any Womack Water of the estimated amount to be diverted, the place of diversion, and the expected dates of diversion so that GBRA is able to ?le any required Notices of Intent to Divert with the Watermaster. For the purpose of this agreement, an email serves as a written form of communication. Notice to GBRA shall be sent to GBRA by sending it to the person named below at the mailing address or email address listed below: Guadalupe-Blanco River Authority 933 East Court Street Seguin, Texas 78155 ATTN: Chief Engineer Page 2 of 4 Email to: thill bra.or GBRA may designate another person and/or other addresses by notifying Victoria in writing as follows: City of Victoria Department of Public Works PO. Box 1758 Victoria, Texas ATTN: Director of Public Works Email to: dreese@victoriatx.org Victoria may designate another person and/or other addresses by notifying GBRA as indicated above. 6. Within three (3) calendar days after the last day of each month in which Victoria makes a diversion, Victoria shall con?rm the amount, place, and date(s) of diversion in writing to GBRA so that GBRA is able to make required ?lings with the TCEQ Watermaster. 7. City agrees to notify GBRA no later than August 10 of each year regarding its intent to use or not use a quantity of Womack Water during that year. Victoria agrees to specify the amount it intends to use. The balance of Womack Water remaining during the then-current 10-year period will be reduced by the amount Victoria has indicated it will use in each noti?cation during that period, whether actually diverted or not. Upon noti?cation from the City that it will not be using the water, GBRA is free to use the water as it deems necessary. 8. Within ten (10) business days of the Effective Date hereof, the City agrees to withdraw its request for contested case hearing and to notify the TCEQ that it supports the approval of the Draft Amendment. 9. obligations under this Settlement Agreement are expressly contingent on the granting the 18-3863C Application in substantially the same form as Exhibit A hereto. obligations hereunder are also expressly subject to the Page 3 of 4 terms and conditions of Certi?cate of Adjudication 18-3863 as amended and to senior and superior water rights. 10. representative to sign below. The City of Victoria, Texas This Agreement shall be effective on the date it is signed by the last Party Guadalupe-Blanca River Authority K??irin Patfes'on Printed Name: General ManagerfCEO Title: Date Signed: Date Signed: 9 Fred B.Werkenthin, Jr. SBOT 21182015 Booth, Ahrens, and Werkenthin 4330 Gaines Ranch Loop, Suite 240 Austin, Texas 78735 Attorneys for the City of Victoria Page 4 of 4 Guadalupe-Blanco River Authority 933 East Court Street Seguin, Texas 78155 General Counsel EXHIBIT A 18-3 863C Application Draft Amendment TEXAS COMMISSION ON ENVIRONMENTAL QUALITY '1 '1 a AMENDMENT TO A e341} . -.. CERTIFICATE OF ADJUDICATIQN 323% 15:3. "their" CERTIFICATE N0. 18-38630 - :1 Permittee: Guadalupe-Blanco A ail-4' i Court Street River Authority 'E?iw?gequin, Texas 78155 Filed: July 5, 2012 Granted: ?$33 Purpose: Agricultural, $331, "2513533111153: v?s0fla, Calhoun, Refugio, Industrial, Minirl 83%. DeWitt, Gonzales, and Domestic mtg; pig? is? Guadalupe and Comel . . Watercourse: Gtradalupggj?ger Watershed: Guadalupe, San Antonio, 413:?" and Iavaea River Basins 8r ?Si; ?Wigs? San Antonio-Nueces and 434-3? as Lamar-Guadalupe Coastal d? 35.61333- W-?tzum Basins 59%4323' Gua'dillupe-Blaneo River Authority (GBRA or Applicant) owns a porlj r??cpte of AaJQdi No. 18-3863 which authorizes the diversion and useidf not to ex ,000 ad eat of water per year from the perimeter of a reservoir, I Salt ter and Diversion Dam owned by GBRA and authorized by Eta cate of Adjudi 'on No. 18-5484, on the Guadalupe River, Guadalupe River Basingd?at a maximum omhined diversion rate of 18.05 (8,100 gpm) for municipal, industrial and egri tural purposes in Victoria, Calhoun, and Refugio counties within the Guadal?? Sa?'Antonio and Lavaca River Basins and the San Antonio-Nuance and Lavaca-Gua 59% Coastal Basins; and Applicant seeks to amend its portion of Certi?cate of Adjudication No. 18-3863 to add mining and domestic use to its authorized water; to add an additional place of use for the authorized water in DeWitt, Gonzo! es, Guadalupe and Carnal counties; and .- Jq. -I-II l? J-l WHEREAS, Applicant also seeks to authorize an exempt interhasin transfer to those portions of Gonzales, DeWitt, Guadalupe and Come] counties in the San Antonio and Lavaca River Basins and the Lavaca-Gundal ape Coastal Basin, and WHEREAS, Applicant further seeks to add a 247-mile diversion segment beginning at the intersection of the Guadalupe River and Interstate Highw 35 in Coma] County and extending to the Saltwater Barrie? ?nd Diversion Dam located 111 Calhoun and Refugio counties; and WHEREAS, the proposed upper limit of the diversion segr?i?tt ted at a point on the Guadalupe River approximately 1. 35 miles southeegzof New taunfels, Texas, hearing 3" W, 1,943.77 feet from the north corner the' ey, Abstract No. 608, also being Latitude 29. 692717? N, Longitude 98.1 811d WHEREAS, the proposed lower limit of th Is located'dla point on the Guadalupe River at GBRA's Seltwaf" 1' EbFlair '1er and-Diversion Dam approximately 3. 5 miles north of Tivoli, Texas, bemll? ?lm, "930 feet from the northwest cor oer of the Silas Hulse Survey, Abstract No. _'t17, also being Latitude 28. 505828? and Longitude 96. 884162? Win Calhoun a e?Jgiolcounties; and MIEREAS, the TexasC anuonment all; ?lity ?nds that jurisdiction over the applicatioo m?hshe WHEREAS, this amendment, if grungg?d, is subject to requirements and orders of the South Texas Watermas?er, and 1, WHEREAS Execu Director recommends Special Conditions be included; 53.: and 433?. 5" ?Yank- ?41; WHEREAS, no?reqf?sts for a co tested case heating were received for this applicatip ?it: slimy 45?s. -. WHE - has complied with the requirements of the Texas er Code and of the?as Commission on Environmental Quality in issuing this .dment, this amendment to Certi?cate of Adjudication 0 18-38 63 designat lg?wr'u? of Adjudication No. 18-38630, is issued to Guadalupe-Blanca River Auth ,?llhj act to the following conditions: 1. USE In addition to the previous authorizations, Owner is authorized to divert and use the authorized 3,000 acre?feet of water per year for mining, municipal, industrial, agricultural, and domestic purposes for use in Victoria, Calhoun, Refugio, DeWitt, Gonzales, Guadalupe and Come] counties. Owner is further Page 2 of 5 nub?c. authorized an exempt interbasin transfer to those portions of DeWitt, Gonzales, Guadalupe, and Coma] counties in the San Antonio and Lavaca River Basins, and the Lavaca-Guadalupe Coastal Basin. DIVERSION In addition to the previous authorization, Owner 18 authorized to 11% the authorized water from a diversion segment on the Guadalupe l'gji?r, Guadalupe River Basin. The diversion segment 15 de?ned as follows: ?ng It' a A. Upper limit of the diversion segment is located on th uadalu?iidggi ver approximately 1.35 miles southeast of New Bran fels, aas, bearth 3? W, 1,943.77 feet from the north corner of the J.Tho?3j1sdnleiiHey, Abstract 608, also being latitude 29. 692.717? N, Longi?ide W, in Clonal?r County. {ii-331 $13: B. Lower limit of the diversion segmentdii?l ied Guadalupe River at Silas Hulse Survey, Abstract No. 167, also being titude 23. 505828? and Longitude 96. 884162? imgalhoun and Refugio hang. .13" - PRIORITY DATE 4.. 13,: 391111., . The time priority of this right' is Merely]; 1951 a: a. Elli-?? Owner sh ilk? impleme agitator moonse?on plans that provide for the utilization of thos ces, te_ ologies that reduce or maintain the consumption?tif 'et, prevent the loss or waste of water, maintain or improve the ef?t?a cy in the use of water, increase the recycling and reuse of any event a, ollutjon of water so that a water supply' 15 made avail able @?ffor future?h alternati 11%. Such plans shall include a requirement that 111 every water suppl ontract?an tiered' into, on or a?er the effective date of this ?mendment, ludlng any contract extension or renewal, that each successive "?holesale ensign er develop and implement conservation measures. if the omer int ds to resell the water, then the contract for resale of the water sh 1 conservation requirements so that each successive customer' in the the water will be required to implement water conservation mama; SPECIAL CONDITIONS A. Diversion of water under this amendment shall be authorized subject to the following: Page 3 of 5 Li-? 1. Diveisions from the segment of the Guadalupe River of 11-1 35 in Come] County to USGS Gage No. 08173900 shall be authorized when sh'eam?ows exceed the following values at USGS Gage No. 08173900 subject to the requirements of Special Conditions below: USGS Gage No. 0817 900 {Guadalupe River at Gonzales, Texas) 1 Jan Feb Mar Apr May Jun Jul ??wlj~cgct Nov Dec Season Aug a: lit?:5? Sumrfg?k Fall Winter Spring Subsistence Flow (ctsBase Flow MS) ?"13 "inc 180 746 4237Diversions from the segment of the Gn?'il'alupe River downsheamcqli-I'JS GS Gage No. 08173900 to USGS Gage??E 08175 00 shall he authoriziad when stream?ows exceed the following i?dlh?dggt Ei?age No. 08175800 subject to the requirements of Special below: USGS Gage No. 08175800 IGuadalupe River at Cue'ilda'vl'exasi,? - Feh Sep Oct Nov Jan Mar {gaggle}! Jun Jd?igg?hg Ii. Dec Subsistence Flow (cfs) 130 130 135? iiag 15de 130 130 86 86 86 Base Flow {sis} '120 lgo 980 980 980 940"?Soo Boo 800 870 870 870 3. .Eir?f?he?gege (Guadalupe River atVictoria, Texas) 940' .3930 DiveasiOns from the segment 61th; Guadalupe River of USGS Gng?elf?o. 08175?b0 shall he a?tlibrized when stream?ows exceed the f?ll?$g ?%Gn 08176500 subject to the requirements of Spa 191 wihons ?b?e ow: .r 4'3" 1.gbsistence ?l?iuw (cfs) Feb Wig? @160 ?5160 160 130 130 130 150 150 150 no 110 110 5' 975$ 975 J15 975 945 945 945 795 795 795 865 865 865 ?(like 3133?. 4. ~gsilstream ?ow restrictions are imposed on diversions from the previously 'IiUthorized points of diversion. 8. Owner shall not divert water under this amendment ifstream?ow at the measurement points described in Special Condition - is equal to or less than the applicable subsistence flow for the respective segment of the Gu adelupe River. Page 4 of 5 - .- p? C. If stream?ow at the measurement poinm described in Special Condition - is greater than the applicable subsistence ?ow but less than the applicable base ?ow, Owner shall not divert water under this amendment unless the measured ?ow at the gage exceeds the applicable subsistence ?ow, plus 50% of the difference between measured stream?ow and the applicable subsistence ?ow. .. D. If stream?ow at the measurement points described in foo - A13) is greater than the applicable base ?ow, Owner ma ivert water authorized under this amendment unless stream?ows. belting the applicable base ?ow slandards, in which case Special ndi?ons??and apply to the diversions. .k . flare as? E. Owner shall allow representatives of the Tc?gj?easbhable access to the?: property to inspect the measuring devicecgp records. 34' F. Owner shall install and maintain a med: ting deveij?f?g?rich accounts for, within 5% accuracy, the quantity of water the point(s) authorized above in Paragraph 2 and records. G. Owner shall contact the Sogthlexas Waterniaster?p_ 'oi?in diversion of water amenndhien'ii?l??eg . t? ??sh 5.. A. This amendment is issued subjd ?thto and provisions contained in Certi?cate ofAdjudicntion?Ij?i?oiga??B63. 'agieimended. except as speci?cally amended herein. :15- This amen "but is issued subject toldll?iiperior and senior water rights in the Guadalupe Rivz asin. grip" :15. ?t {liars n- . Owner agreesilglgeg?bund by ?iehei'ms, conditions and provisions contained herein agree is a condition precedent to the granting of this amendment. other tiers req {lugisjmendment drama. 1' ., .his amendm is issued subject to the Rules of the Texas Commission on Envirotdihental Qu and to the right of continuing supervision of State water resourced?gcised?iy the Commission. . 135in the application which are not speci?cally granted For the Commission Date issued: Page 5 of 5 I-ol .w pl