DeHart dismisses subpoenas, removes himself
By Tom Shuford
Subpoenas issued to an Alpine city council member and two city staff members were dismissed by 394th District Judge Kenneth DeHart at a pretrial hearing Friday (April 8) in the open meetings case against Alpine city council members Katie Elms-Lawrence and Avinash Rangra.
DeHart removed himself as judge in the case against Rangra and took under advisement a motion by District Attorney Frank Brown to have Alpine attorney Rod Ponton disqualified as attorney for Elms-Lawrence. DeHart said that his court coordinator’s husband and Rangra are involved in long-standing litigation that remains unresolved.
Senior District Judge Peter Peca of El Paso was assigned on Monday to hear the Rangra case in Alpine.
Other defense motions – a motion to consolidate the two cases and a motion for a change of venue – await DeHart’s determination of whether Ponton can serve as attorney for Elms-Lawrence.
Brown said a ruling on the motion to disqualify Ponton could come as early as this week or next. The next pre-trial hearing in the Elms-Lawrence case is set for 9 a.m. May 13 in DeHart’s court.
The courtroom was almost full Friday when the two Alpine city council members appeared with their attorneys. In a provocative and bizarre move, Rangra stood before the court wearing a black T shirt - actually a Batman T shirt by MoonAtMidnight.com. The presiding judge commented to Rangara regarding his super hero attire, causing the defendant to smile broadly. Although the court could not hear the exact words it was unlikely to help his case.
Outside the courthouse, Hugh Garrett, a services assistant planner with the Rio Grande Council of Governments, carried a sign calling for the dismissal of the open meetings case.
After removing himself from the Rangra case, DeHart heard arguments on Brown’s motion to dismiss subpoenas issued to Alpine city council member Nancy DeWitt, City Manager Karen Philippi and her assistant, Debra Cutting.
The subpoenas had ordered them to bring extensive materials with them to the hearing, including the following:
– All personal and business e-mails from Jan. 1, 2004, to the present.
– Any personal or business correspondence regarding the open meetings law, the use of e-mails, investigations of the Alpine city council or its members.
– Personal and business computers, hard drives and saved disks.
– Any material saved from their personal computers from 2004 to present.
Ponton, the attorney for Elms-Lawrence, argued that the materials subpoenaed were needed in order to prepare for trial. He also argued that Brown as district attorney lacked standing to file a motion to quash on behalf of the three witnesses. Brown argued the defense lacked the right to subpoena documents during the pretrial hearing. He said he had no problem with the three officials being being subpoenaed as witnesses.
DeHart dismissed the subpoenas and told the three that they were free to leave the courtroom. He then took up the motion by Brown to disqualify Ponton as attorney for Elms-Lawrence.
Brown cited the fact that Ponton had served as attorney for council members Anna Monclova and Manuel Payne when they were called to testify before the grand jury that indicted Elms-Lawrence and Rangra.
Ponton argued that waivers of conflict signed by Elms-Lawrence, Monclova and Payne should overcome any theoretical conflict of interest problem that would be posed by his questioning them as witnesses during the trial.
Brown questioned both Monclova and Payne as to their understanding of the waiver they signed in March. Payne testified that he still considered Ponton to be representing his interests.
Elms-Lawrence, when called as a witness by Ponton, said she understood that he had represented Monclova and Payne when she hired him to represent her.
68 million gals of unbilled water in seven months
By Tom Shuford
About one-third of the water that passes through Alpine’s pump stations each month is unbilled – a fact that City Manager Karen Philippi is seeking to address.
From September through March, according to figures provided by the city, that has meant nearly 68.8 million gallons have passed through the system unbilled. A large amount, Philippi said, can be attributed to old water meters that seriously underreport the number of gallons used by consumers.
“We have plenty of meters that are 30 to 50 years old,” Philippi said. Philippi said that she can find no record of any systematic replacement of meters in Alpine. But the water infrastructure upgrade project proposed by Naismith Engineering of Austin and approved by the council includes plans to replace 1,081 water meters – nearly one-half of Alpine’s meters.
In the current city budget, funds were also allocated to begin a routine replacement policy on meters.
“I’d like to see us change out about 8 to 9 percent each year,” Philippi said.
The difference between the number of actual gallons used by a household versus gallons registered – and, therefore, billed – is lost revenue, Philippi said.
“The minute a meter is placed in the ground,” Philippi said, “mineral deposits begin building up on the gears.”
Water passing through the meters turns the gears to register the number of gallons being used by the household or business. As the meter ages, the gears still turn – but at an increasingly slower rate because of mineral deposits, Philippi said. Most manufacturers warrant their meters for 15 years or one million gallons, whichever comes first. The first two numbers of the serial numbers used by many meter manufacturers give the year of manufacture. The majority of Alpine’s 2,450 meters are past the 15 years guaranteed by the manufacturer.
One reaction to meter replacement may be citizen unhappiness, as the new meters record usage more accurately and bills rise accordingly, Philippi said. When a similar meter replacement program was instituted in Houston several years ago, Philippi said, many citizen complaints were received as bills went out.
“They complained that they had been given a ‘bad’ meter,” Philippi said. “They’d compare their new bill with previous bills and assume something was wrong with the meter.”
Philippi said the council may want to give some sort of one-time temporary break on a bill where there is a large increase.
Last September, the audit of city finances called for “aggressive procedures to be installed” to reconcile the difference in number of gallons pumped and gallons sold.
Philippi said the following policies are being instituted to reduce the percentage of unaccounted for water:
– Routine replacement of aged and faulty water meters to reduce underreporting of gallons used.
– Keeping records of usage on metered, but unbilled usage, such as city buildings.
– Metering previously authorized, but unmetered uses, such as watering city parks.
– Tracking estimated usage on previously untracked usages, such as testing of fire hydrants, filling of tanker trucks.
– Tracking estimated loss on main breaks, spillages from storage tanks and flushing of lines in routine maintenance, repairs and line extensions.
Other loss can still occur through slow leaks underground that go undetected for long periods of time.
Officials express guarded optimism on legislation
By Andrew Stuart
Tom Beard, chair of the Brewster County groundwater district and the Far West Texas Regional Water Planning Group, said this week that the modification of the rule of capture proposed in a Senate water policy bill was a welcome step.
“It has the beginning of a new look at the rule of capture,” Beard said. “It doesn’t go far enough, but it’s a start.”
The century-old rule of capture has traditionally allowed landowners or lessees to pump water from beneath their land without liability for the impact on their neighbors. The Senate bill, however, would make high-volume, non-domestic users such as water marketers liable for damages to domestic and agricultural water users.
The Senate bill could significantly transform water policy in the state. Hearings are underway this week in Austin, and the bill could be up for a vote in the Senate within two weeks. Beard also praised the bill for recognizing land stewardship as an integral part of improving groundwater supplies. The bill could provide funding to landowners for rangeland improvement practices – such as prescribed burns or brush management – that facilitate the percolation of rainwater down into aquifers.
“Healthy grassland is the best way we can ‘create’ new water,” Beard said. “For the first time, we’re writing into Texas law that sound rangeland is connected to water. That’s pretty positive.”
Senate Bill 3, introduced by State Sen. Ken Armbrister, proposes a number of changes to water policy in the state. In addition to modifying the rule of capture, the bill calls for adding a fee for residential and business water use and creating regional bodies that would oversee local groundwater districts.
“There have been meetings ever since we filed the bill,” Armbrister spokesperson Mike Sizemore said Tuesday (April 12). “More than 150 people have participated – pretty much everybody who’s a stakeholder.”
Sizemore said he did not anticipate any “major or substantive” changes would be made to the bill as a result of the hearings. After a Senate vote, the House would take up the bill, probably by early May, Sizemore said. Environmental groups and others across the state have responded positively to the bill.
Janet Adams, general manager for the Presidio and Jeff Davis County groundwater districts, said, however, that the speed with which the bill is set to move to adoption could create problems in the future.
“I haven’t quite seen anything like this before,” Adams said. “There are too many people in the state that will be affected by this to move this quickly. There are going to be adverse effects on people we don’t know about.”
Adams noted that while the bill would require rural water supply corporations, such as those that provide water in Fort Davis and South Brewster County, to charge the new water fee, the water supply corporations would not be eligible to receive funds generated by the tax because they are not a “political subdivision.”
According to the bill’s current language, only cities and other political subdivisions would be eligible to receive funding generated by the tax for water infrastructure improvement projects.
The bill calls for the formation of regional groundwater councils that would assist local groundwater districts and also make sure that groundwater districts within a region managed resources “consistently.”
Adams said she was concerned that the current language of the bill might allow the regional councils to overrule the decisions of local groundwater districts about how to manage aquifers.
Bee swarms reported in the Big Bend area
By Roy Hamric
Dozens of bee swarms have been reported to area authorities in recent weeks. Residents are warned to be alert to bees and to exercise extreme caution.
A dog died after being attacked by a bee swarm about 6 p.m. Monday (April 11) in the Nine Point Mesa area of South Brewster County, Brewster County Sheriff Ronny Dodson said.
He said his office has had eight reports of bee swarms this week.
A man and woman, the owners of the dog, were stung by bees and treated by Terlingua EMS medics.
“People need to be very aware and alert,” Dodson said. “The best advice is to walk away slowly and not to wave your arms about if you find yourself in a swarm.”
Dodson said the swarms of small bees are very aggressive. Some of the bees may be from Mexico. They are on the move with their queen bee looking for places to establish hives.
Fort Davis Fire Chief Kelly Bryan said eight to 10 bee incidents have been reported in the Fort Davis area. No injuries were reported.
“It’s impossible to tell if the swarms are tame Americanized bees or Brazilian killer bees,” Bryan said. “The best thing to do is leave them alone.”
Dodson said caution should be taken whenever one is approaching abandoned buildings or RVs. His office has found bee swarms in abandoned structures, especially in the South Brewster County area and around Marathon.
The Alpine and Terlingua fire departments and the Brewster County Sheriff’s Office have been trained to deal with bee swarms. The fire departments have protective bee suits. Dodson said his office has ordered the protective suits.