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Tceq Docket No. 2020-1415-Wr Application by Rr 417, Llc

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TCEQ DOCKET NO. 2020-1415-WR APPLICATION BY § BEFORE THE RR 417, LLC FOR § TCEQ WATER RIGHTS PERMIT § TEXAS COMMISSION ON No. WRPERM 13631 § IN BANDERA COUNTY, TEXAS § ENVIRONMENTAL QUALITY APPLICANT RR 417, LLC’S RESPONSE TO HEARING REQUESTS Applicant RR 417, LLC (“RR 417”) respectfully submits this response to hearing requests regarding RR 417’s application (the “Application”) for Texas Commission on Environmental Quality (“TCEQ”) Water Right Permit No. 13631 (the “Permit”). All of the hearing requests on the Application except for two have been withdrawn.1 For the reasons explained below, the two remaining hearing requests should be denied and the Permit should be issued. I. BACKGROUND RR 417 is establishing a summer camp on approximately 700 acres of property located near Tarpley, in Bandera County, Texas. RR 417’s Permit would authorize the maintenance and use of two existing impoundments (“Impoundments”) on the property, which are located on Commissioners Creek, but the Permit would not authorize appropriation or use of any state surface water. The Impoundments would have a combined normal operating capacity of 29 acre-feet. Commissioners Creek is a tributary of Hondo Creek, which is a tributary of the Frio River in the Nueces River Basin. The Permit would also authorize the use of the bed and banks of Commissioners Creek to convey 40 acre-feet of groundwater per year for subsequent diversion of 10 acre-feet of groundwater for agricultural and recreational purposes and to maintain the 1 One Request for Reconsideration was submitted, which has also been withdrawn. See Friends of Hondo Canyon et al. Withdrawal of Comments, Requests for Contested Case Hearing, and Requests for Reconsideration of the Application of RR 417, LLC for Permit No. WRPERM 13631 (October 27, 2020). Applicant RR 417’s Response to Hearing Requests WRPERM 13631, TCEQ Docket No. 2020-1415-WR Page 1 Impoundments. RR 417 obtained permits from the Bandera County River Authority and Groundwater District to produce and beneficially use the groundwater produced from two wells for public water supply, for maintaining the water level in the two Impoundments, and for irrigation. II. PROCEDURAL HISTORY The Application was received September 5, 2019, and was declared administratively complete and filed with the TCEQ’s Office of the Chief Clerk on October 8, 2019. After completion of the technical review, the Executive Director prepared a draft permit. Notice of the Application was mailed on February 26, 2020 and published on March 4, 2020. A public meeting was held September 3, 2020 via webinar, after which the comment period closed, and the deadline to submit a request for a contested case hearing (“Hearing Request”) elapsed. According to the TCEQ Commissioners’ Integrated Database as of the time of this filing, 116 Hearing Requests and 109 comments were received by the TCEQ Chief Clerk.2 III. LEGAL AUTHORITY Whether a person submitting a Hearing Request on RR 417’s Application is entitled to a contested case hearing is determined by several requirements. First, TCEQ rules in 30 Tex. Admin. Code § 55.251(a) only allow a valid Hearing Request to be submitted by: (1) the Commission; (2) the Executive Director; (3) the applicant; and 2 The dates and times cited herein relating to filing of Hearing Requests and withdrawals are the dates and times indicated in the TCEQ Commissioners’ Integrated Database. Applicant RR 417’s Response to Hearing Requests WRPERM 13631, TCEQ Docket No. 2020-1415-WR Page 2 (4) affected persons (“Affected Persons”), when authorized by law.3 Second, TCEQ rules in 30 Tex. Admin. Code § 55.251(b) require a Hearing Request to be in writing and be submitted by the end of the comment period as defined by TCEQ rules in 30 Tex. Admin. Code § 55.251(d). The deadline to submit a Hearing Request on RR 417’s Application was the end of the comment period at the end of the public meeting on September 3, 2020. As of the time of this filing, only two written Hearing Requests submitted by the deadline have not already been withdrawn. Third, TCEQ rules in 30 Tex. Admin. Code § 55.251(c) require a Hearing Request to substantially comply with the following: (1) give the name, address, and daytime telephone number of the person who files the request; (2) identify the person's personal justiciable interest affected by the application including a brief, but specific, written statement explaining in plain language the requestor's location and distance relative to the activity that is the subject of the application and how and why the requestor believes he or she will be affected by the activity in a manner not common to members of the general public (“Personal Justiciable Interest”); (3) request a contested case hearing; and (4) provide any other information specified in the public notice of application. Fourth, pursuant to TCEQ rules in 30 Tex. Admin. Code § 55.255(b), the Commission is only required to grant a contested case hearing if the Hearing Request is made by: 3 See Tex. Water Code §11.123(a) (“The commission, on the motion of a commissioner or on the request of the executive director or any affected person, shall hold a public hearing on the application.”). Applicant RR 417’s Response to Hearing Requests WRPERM 13631, TCEQ Docket No. 2020-1415-WR Page 3 (1) the applicant or the Executive Director; or (2) an Affected Person, if the Hearing Request: (i) complies with the requirements of TCEQ’s rules in 30 Tex. Admin. Code § 55.251; (ii) is timely filed; and (iii) is pursuant to a right to hearing authorized by law.4 Pursuant to TCEQ rules in 30 Tex. Admin. Code § 55.256(a), an Affected Person is one who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application; however, an interest common to the general public does not constitute a justiciable interest. Pursuant to TCEQ rules in 30 Tex. Admin. Code § 55.256(c), to determine whether a person is an Affected Person, all relevant factors must be considered, including but not limited to: (1) whether the interest claimed is one protected by the law under which the application will be considered; (2) distance restrictions or other limitations imposed by law on the affected interest; (3) whether a reasonable relationship exists between the interest claimed and the activity regulated; (4) the likely impact of the regulated activity on the health, safety, and use of property of the person; (5) the likely impact of the regulated activity on the use of the impacted natural resource by the person; and (6) for governmental entities, their statutory authority over or interest in the issues relevant to the application. 4 See Tex. Water Code § 11.132(a) (“The commission, on the motion of a commissioner or on the request of the executive director or any affected person, shall hold a public hearing on the application.”). Applicant RR 417’s Response to Hearing Requests WRPERM 13631, TCEQ Docket No. 2020-1415-WR Page 4 IV. HEARING REQUESTS The only two Hearing Requests on RR 417’s Application which were submitted by the deadline and which have not been expressly withdrawn by the hearing requester do not comply or substantially comply with TCEQ’s rules and were not submitted by an Affected Person.5 A. JOSEPH WESLEY HUESSER, III Joseph Wesley Huesser, III submitted a Hearing Request on March 23, 2020 at 7:57 pm. In his Hearing Request, he states that his family owns a ranch very close to Tarpley that Hondo Creek traverses. His Hearing Request raises concerns about construction of RR 417’s lower impoundment reducing flow in the creek for 7 months, regarding water quality relating to RR 417’s release of water from the Impoundments, regarding the use of groundwater, and the mechanisms for returning state surface water to the creek.6 First, records and mapping electronically available from the Bandera Central Appraisal District (“BCAD”) and from the Medina County Appraisal District (“MCAD”) do not indicate that Joseph Wesley Huesser, III owns property along Hondo Creek near Tarpley (which is below the confluence with Commissioners Creek near Tarpley).7 Thus, even if Mr. Huesser’s family members own property as described in the Hearing Request, property not owned by a hearing 5 See TCEQ’s rules in 30 Tex. Admin. Code § 55.251(b)(“A request for a contested case hearing by an affected person must be in writing and be filed by United States mail, facsimile, or hand delivery with the chief clerk within the time provided by subsection (d) of this section.”) (emphasis added). 6 At the outset, Joseph Wesley Huesser, II submitted a Hearing Request on March 27, 2020 at 5:15 pm, which is virtually identical to the hearing request submitted by Joseph Wesley Huesser, III, and the address provided in both Hearing Requests (although not the e-mail address) is the same. Joseph Wesley Huesser, II also submitted another Hearing Request on August 17, 2020 at 4:10 pm, but he withdrew that Hearing Requests on October 26, 2020 at 4:05 pm. 7 Although BCAD records indicate that JoAnn Fasone Huesser owns 22.13 acres (Property ID No. 161235) and Thomas G. Fasone, Jr. owns an adjacent 46.33 tract (Property ID No. 165990), both of which Hondo Creek traverses below the confluence with Commissioners Creek, neither BCAD nor MCAD records indicate that Joseph Wesley Huesser, III owns property in Bandera County or in Medina County. JoAnn Fasone Huesser withdrew her Hearing Request on October 26, 2020 at 3:51 pm, and Thomas G.
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