More than a year after the collapse of the Lake Dunlap dam, plaintiffs’ attorney Douglas Sutter and lawyers for the Guadalupe-Blanco River Authority (GBRA) are set to meet in June ahead of an October trial. The trial will decide the future of four Texas lakes.
GBRA officials want to partially drain them out of fear that another dam collapse could cause loss of life and property damage.
GBRA experienced a spillgate failure Tuesday morning, May 14. This video shows the precise moment the middle gate collapsed resulting in the dewatering of Lake Dunlap. GBRA will provide periodic updates regarding recreational, safety or water supply issues. pic.twitter.com/xqRTlTNgg9
— GBRA (@GBRATX) May 15, 2019
But area landowners question the true gravity of the safety threat, and they fear the drainings could devastate local economies. They also say GBRA is responsible for dam maintenance and shouldn’t have allowed its infrastructure to deteriorate.
Before then, a hearing is scheduled for Tuesday. It will center around motions filed by Sutter on behalf of more than 300 plaintiffs, as well as a motion from GBRA lawyers.
One of Sutter’s motions asks the court to skip over any required mediation between GBRA and the plaintiffs because of alleged interaction between the governor's office and the GBRA.
Area residents have called for the governor's office to intervene and encourage GBRA to repair the dams. Based on depositional testimony by deputy general manager Jonathan Stinson, that is unlikely.
Stinson testified that Gov. Greg Abbott’s office recognized the organization was not responsible for replacing or repairing any of its dams.
According to the testimony, the communication with staff from the governor’s office predated the collapse of a spill gate at Lake Dunlap Dam in mid-May 2019.
The lawsuit centers on this issue — whether or not the organization is responsible for maintenance of its dams.
Sutter told Texas Public Radio the testimony calls into question the governor’s stance.
“The governor has always been ‘neutral’ with regard to the duties and obligations of the parties in this case,” he said. “But Stinson was pushed during the deposition, and testified that the governor told GBRA — through his spokeswoman — that he doesn't believe that GBRA has a statutory duty to repair, replace and maintain the dams.”
In the deposition, Sutter asked “...has the governor, through any intermediary, said that he believes GBRA does not have to replace the dams? ‘Yes’ or ‘no.’”
After a brief back-and-forth to clarify the question, Stinson answered, “They recognize that we do not have to replace the dams.”
Stinson testified that he only spoke with intermediaries, never with the governor.
“There have been conversations about how this situation can be funded and what tools and resources are available, through State government and local entities, to raise revenue, recognizing that GBRA can’t and doesn’t have to continue the dams,” he testified.
The communication came from a former policy advisor to the governor’s office.
In a written statement to TPR, GBRA said, “For the past four years, the Guadalupe-Blanco River Authority has been working to educate state and local officials, stakeholders, and property owners of the failing infrastructure of the 90-year-old Guadalupe Valley Lakes hydroelectric dam system. State law does not require the river authority to maintain its infrastructure in perpetuity.”
The governor’s office didn’t respond to TPR’s requests for comment.
“We're saying, ‘Look, the governor has interjected himself in this proceeding, and told GBRA what he thinks, which will affect whether or not they're going to come and deal with us in good faith,’” Sutter said.
The interaction between the governor’s office and GBRA officials predated the legal action.
Two other motions will be discussed. In one, Sutter asks the court to waive GBRA’s request for attorneys’ fees — fees he described as unreasonable and unnecessary.
GBRA will also ask the court to compel a few unresponsive plaintiffs to produce documents and show up for depositions.
Regardless of the court’s ruling on the motions, the October trial will decide the outcome of the lawsuit.
As the litigation trickles forward, water-side property owners — some of whom live in other cities, like Houston — have begun the process of forming small taxing districts to pay for the repairs themselves. Residents who live in the Lake Dunlap and Lake McQueeny districts will vote for or against the proposed districts in November.
GBRA has encouraged this approach.
In a written statement, a spokesperson said, “GBRA’s revenue from the sole hydro customer is insufficient to sustain the system or replace the aging spill gates. Since the Lake Wood spill gate failure in 2016, GBRA has been working with stakeholders to develop a sustainable funding solution for the GV Lakes system.”
GBRA declined to make any official available for an interview.
Based on its interpretation of the law, GBRA is unable to use any revenue stream not derived from the hydroelectric infrastructure to pay for the repairs of the dams, and the annual hydroelectric-related revenue is much less than the cost of repairs.
Jim Blackburn is an environmental lawyer and an environmental law professor with Rice University’s civil engineering department.
He is also the attorney for the Aransas Project, which sued GBRA in 2011 over the deaths of 23 coastal whooping cranes. The Aransas Project lost the lawsuit at the 5th Circuit Court of Appeals, and GBRA and the group now collaborate to protect the cranes.
He said cases around water rights and infrastructure are complicated.
“They're very political. They're very charged,” he said. “They're very difficult cases for both the government and for the plaintiffs.”
According to Blackburn, the GBRA lawsuit is largely unprecedented.
“In my opinion, it is a grey area,” he said. “It is an area that we've really probably not ever had much litigation about, nor much law developed.”
Blackburn said the primary question will center on GBRA’s obligation to maintain dams originally intended to generate hydroelectric power.
“Again, I think the question becomes ‘Is there any obligation to maintain?’” he said. “‘Do the private landowners have the right to force a government agency to spend money they don’t have?’”
Blackburn said the GBRA case could set a precedent. “And I think the precedent is: ‘At what point does a court gain jurisdiction to order a government entity — or even a corporate entity — to pursue a function that no longer has economic value?’” he said. “Not sure that the courts will be very comfortable with that.”
Dominic Anthony Walsh can be reached at Dominic@TPR.org and on Twitter at @_DominicAnthony.
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