Judge rules lawsuit against GBRA over aging dams can move ahead
A group of property owners challenging the Guadalupe-blanco River Authority’s failure to maintain or replace a series of dams can proceed with its lawsuit, a judge ruled Thursday.
The 278 plaintiffs suing the GBRA say its decision to let six aging dams deteriorate or collapse amounts to an unconstitutional “taking” of their Guadalupe River waterfront property without compensating them for their loss. Their property values have declined by 28 to 35 percent since the river authority stopped maintaining the dams last year, the lawsuit states.
GBRA has argued that the law doesn’t require it to replace the dams at Lake Dunlap, Lake Mcqueeney, Lake Placid, Meadow Lake, Lake Gonzales and Lake Wood. A spill gate collapsed at Lake Dunlap in May 2019, draining that reservoir, while a similar gate failure four years ago drained Lake Wood. The authority has said the four other dams, each about 90 years old, have reached the end of their life spans.
After hearing several hours of arguments online Thursday, visiting Judge Stephen Ables ruled that the lakefront homeowners have legal standing to pursue their property taking claims. But he agreed with the authority’s defense that it is immune from other aspects of the lawsuit, such as claims against the agency’s individual officials and directors.
Both sides are expected to appeal.
“I think this gives you the opportunity to take this to the court of appeals to see if we can get a bright line on the immunity issue before we take off and get into the trial,” Ables told the attorneys.
The judge also said he believed that the chances of a plan to hold a jury trial in October or November “probably are slim to none” because of the coronavirus pandemic.
Attorneys for the lakefront owners called Thursday’s ruling a win.
“Everybody said we wouldn’t even survive this,” said Houston attorney Doug Sutter, a Lake Mcqueeney property owner and one of two lawyers representing the plaintiffs for free. “We can go after GBRA for our property damages. So we’re very happy with that.”
GBRA officials stressed that most of the plaintiffs’ claims were dismissed, noting in a statement that the appellate process won’t be finished until next year or later.
“Today’s results should encourage the lake residents to work with GBRA to find a sustainable solution in addressing the necessary replacement of the spill gates on the hydroelectric dams,” said Kevin Patteson, GBRA’S CEO and general manager.
In court filings, GBRA said it doesn’t have the money to replace the dams, which it purchased along with the water rights in the 1960s. That would cost around $180 million, it said.
GBRA also argued that the residents living nearby have no ownership or property interest in the man-made lakes, the dams or the water and have never paid any taxes, fees or assessments to repair or replace the dams. The agency doesn’t have authority to levy property taxes.
Because the four remaining dams are in poor condition and deemed unsafe, GBRA announced last year that it would lower their spill gates, predicting a 12-foot drop in the water behind each dam. The lawsuit halted those plans.
“What the plaintiffs are asking this court to do is something unprecedented under Texas law — asking to order a Texas government agency that has no taxing authority to pay approximately $180 million that it does not have to rebuild or replace six man-made lake dams,” said Travis Sales, a Houston-based attorney for the firm Baker Botts who represents GBRA.
“Who pays for the plaintiffs’ continued enjoyment of those man-made lakes adjacent to their properties is a policy and political decision — not a legal decision.”
Nothing in GBRA’S enabling act requires the agency to maintain and repair dams, Sales said. But the river authority has the power to dispose of its own property, he told the judge.
Attorneys for the property owners said the Texas Administrative Code declares GBRA “shall be responsible” for operating and maintaining the dams in a safe manner. But the agency has “intentionally mismanaged” the dams for almost 60 years and allowed them to degrade to where they can no longer be repaired, they argued.
“This was a self-inflicted wound for which GBRA is entirely responsible,” the homeowners’ attorneys wrote in court filings.
They also said the plaintiffs paid permit fees to the GBRA, which contributed to dam maintenance, and that the agency demanded homeowners follow construction requirements “while encouraging them to make hundreds of millions of dollars” in improvements to their waterfront properties.
In court filings, Sutter noted that GBRA can’t dispose of or abandon its dams without decommissioning them as required by state law, which “is not an easy task.” Such a move, he said, requires feasibility studies, hearings before the Texas Commission on Environmental Quality and public notice.
Sutter said the agency has spent millions of dollars on other pursuits and large salaries during the nearly 58 years it has owned the dams. He told the judge the agency prefers to let them fail and is “de facto destroying them” by halting maintenance in a bid to avoid the decommissioning process. Homeowners at Lake Dunlap have created a water control and improvement district that, if approved by voters in November, will impose a tax to pay for that dam’s replacement. GBRA has also reached preliminary agreements for such districts to be established around Lake Mcqueeney and Lake Placid. Those also will go to voters for approval in November.
A separate lawsuit filed against GBRA by five Lake Placid residents and five Lake Mcqueeney residents was recently settled, contingent on voter approval in those respective districts. Those property owners were represented by San Antonio attorney Ricardo Cedillo.