FOCL battles Army COE, GBRA in
Expresses concern over GBRA's plans for Canyon Lake
By Richard Zowie
Times Guardian Staff Writer
Legal arguments over Friends of Canyon Lake's attempt to halt construction of a raw water intake system were heard in a San Antonio federal courtroom May 27.
The federal judge who heard the case, Royal Furgeson, said he would try to issue a ruling within 60 days.
Jim Blackburn, FOCL's attorney, argued that the intake system, a joint project between the U.S. Army Corps of Engineers and the Guadalupe-Blanco River Authority, should be halted until a new environmental impact statement (EIS) could be done to determine the possible consequences the system might have on the lake.
FOCL claims the intake system would drain the lake of enough water to cause various environmental concerns and cripple recreational activity in a region with a tourism-dependent economy. To support boating and swimming and stay at its "recreational level," the lake must be at 903 mean feet above sea level.
The project would place raw water intakes at the lake's 880, 860 and 810 feet above mean sea level areas.
GBRA said the intake system is needed to supply water to Comal and Kendall County towns with limited groundwater supplies. This plan, called the Western Canyon Project, would supply water to Boerne, Fair Oaks Ranch, Cordillera Ranch, Bulverde and Tapatio Springs. GBRA also argues that this plan would help to lower use of wells that draw from the Edwards Aquifer, which has a limited water supply.
In its suit, FOCL claimed that a new EIS needs to be done on the lake since the last was done in 1975. Much has changed since then, FOCL said, arguing that a new one would need to be done to analyze all the impacts the water intake system might have on the lake-primarily for the swimming and boating industry. They also claim the project violates the 1979 National Environmental Policy Act.
Bill West, GBRA general manager, admitted that water is an emotional issue and added that he is confident that the COE has adequately followed the guidelines of NEPA. He also felt that a contract signed between his organization and COE allows for the water withdrawal to be done.
"There's no question a lot of things have changed since 1975," he said. "But in 1975 the contract between the Corps and GBRA clearly provides GBRA all that water from 909 down to 800 mean feet above sea level. That is a clear right. And so, from that standpoint, the 1975 Environmental Impact Statement recognized that."
FOCL's case has already been heard several times at the state level; in
2003, the Texas Supreme Court declined to hear the case. This is the first time the suit has been filed in federal court.
West feels optimistic the court will rule in COE and GBRA's favors.
"We are confident when the judge reviews all the information-the arguments and legal briefs-he will rule that the Corps did in fact fulfill their obligations under NEPA."
"I think [the court proceeding] went well," said Susan Biggs, assistant United States Attorney who represented the COE. "The judge was very careful to listen to all the arguments, and the government is hoping the judge will agree that the Army met its responsibilities under the law."
Jan Kennady, Comal County Commissioner of Precinct No. 4, attended the court proceeding.
"I thought Judge Furgeson conducted a fair and balanced court, and I was impressed that he asked pertinent questions throughout the process," she said. "The packed courthouse and overflow crowd was an indication of how important this decision is to many Canyon Lake residents. I recognize how vital the lake is to the economy and well-being of our citizens and attended [the proceeding] to learn as much as possible and to support my constituents."
The commissioner declined to speculate as to how the judge would rule, but added that Judge Furgeson appeared to have sufficient information to make an informed decision.
Bob Wickman, FOCL President, Blackburn did a very good job of representing the issues. Still, he's not sure what the outcome will be. While GBRA and COE argued in court that the issue is a state issue and not a federal one, Wickman feels its one for the federal court to deal with since COE is required by the federal government's NEPA to perform an EIS anytime there's a "cumulative impact" that could adversely affect the lake and the area around it.
"In this hearing today, if nothing else, GBRA has openly admitted that the lake level will go down significantly," he said. "It's just that the water they're going to take out of the lake will benefit other areas of the county and therefore, implying that, is the fact that it's ok sacrifice central Comal County area for the benefit of others. We don't buy that argument. It's robbing Peter to pay Paul."
Wickman added: "This raw water intake facility they're building has three separate intakes at the levels 880, 860 and 810 so that in regardless of the levels of that lake, GBRA can siphon off the best oxygenated water."
Blackburn wasn't available for further comment after the court proceedings.
Construction on Canyon Lake began in 1958, and the water from the Guadalupe River began flowing into the lake area in 1964. the lake was created through the damming of the Guadalupe River, which begins in Kerr County and travels through Kendall, Comal, Guadalupe, Gonzales, DeWitt and Victoria Counties. Before ultimately flowing into San Antonio Bay along the Gulf Coast about 70 miles north of Corpus Christi, it merges with the San Marcos and San Antonio Rivers.