06-25-09-2g - Resolution - 06/25/2009RESOLUTION NO. 06- 25 - 09 -2g
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS,
APPROVING AND RATIFYING A MEDIATED SETTLEMENT AGREEMENT AND A JOINT
UNDERSTANDING OF MEDIATED SETTLEMENT AGREEMENT REGARDING C.A. SKILES
FAMILY PARTNERSHIP LTD. AND CLIFF SKILES, JR., D.V.M. CONTESTED PERMITS
'BEFORE THE BRAZOS VALLEY GROUNDWATER CONSERVATION DISTRICT.
WHEREAS, the City of College Station, City of Bryan and Optim Energy jointly contested two existing and
one new application for groundwater permits submitted by Dr. Cliff A. Skiles, Jr. D.V.M. and C.A. Skiles
Family Partnership, Ltd. considered before the Brazos Valley Groundwater Conservation District; and
WHEREAS, all parties in the above - described matters entered into mediations on or about June 5, 2009; and
WHEREAS, a proposed mediated settlement agreement was reached subject to approval by the governing
bodies of the parties involved, including the City of College Station; and
WHEREAS, the City Council of the City of College Station has determined it to be in the best interests of the
citizens of the City of College Station to enter into and approve such mediated settlement agreement; now
therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS:
PART 1: That the facts and recitations set forth in the preamble of this resolution are hereby declared
true and correct.
PART 2: That the City Council of the City of College Station hereby approves and ratifies a Mediated
Settlement Agreement and the Joint Understanding Mediated Settlement Agreement for the
following matter: In re: Applications and Permits of Dr. Cliff A. Skiles, Jr. D.V.M. and C.A.
Skiles Family Partnership, Ltd. for Groundwater Withdrawal in Robertson County, Texas
before the Brazos Valley Groundwater District. A copy of such Mediated Settlement
Agreement and such Joint Understanding of Mediated Settlement Agreement are attached
hereto and made a part hereof as Exhibit "A."
PART'): That this resolution shall take effect immediately from and after its passage.
ADOPTED this 25th day of June , A.D. 2009.
ATTEST:
APPROVED:
MAYOR
Resolution No. 06- 25 -09 -2g
EXHIBIT A -1
Mediated Settlement Agreement
The parties to the Skiles interests' contested case have reached agreement as follows:
1. The Skiles Family Partnership's historic use permit shall be for 20,481 acre -
feet of water per year from the Simsboro Formation, calculated on a four -year
rolling average.
2. The General Manager will dismissed with prejudice his request that the Family
Partnership's historic use permit should be amended or revoked; provided,
however, an aquifer -wide change may apply to Skiles interests' historic use
permits.
3. The Protestant Parties shall withdraw their intervention in the contested case
on the General Manager's request that the Family Partnership's historic use
permit be amended or revoked.
4. The Skiles Family Partnership will dismiss its request for an operating permit.
5. Dr. Skiles' historic use permit for Brazos River Alluvium water shall be
amended to authorize withdrawal of no more than 10,000 acre -feet of water per
year.
6. The four new wells on the Brazos River Farms, which are in the Simsboro
Formation, may be used for production of water under the Skiles Family
Partnership's historic use permit, as set forth in paragraph 1.
7. The annual amount of groundwater that the may be withdrawn from the
Simsboro aquifer under the Family Partnership's historic use permit referenced
in paragraph 1 shall not exceed 30,000 acre -feet in any given calendar year.
8. The provisions in paragraphs 1-7 above are contingent on approval by the
District Board and the city councils of Bryan and College Station. Such
approvals by the cities shall occur before action by the Board and no later than
July 8, 2009.
9. The provisions in paragraphs 1 -7, above, are contingent on dismissal with
prejudice of the defamation action in Deaf Smith County and the Open
Meetings Act action in Robertson County, as well as on the Relators formal
withdrawal from the quo warranto action in Robertson County, coupled with a
letter delivered to the Robertson County Attorney, which letter shall be in the
form and words of the attached draft letter. The actions described herein shall
be filed no later than five days after the last of the approvals identified in
paragraph 8.
10. In the interim between now and the actions described in paragraph 8, above, all
proceedings, including discovery and other deadlines, are abated, and the
Resolution No. 06- 25 -09 -2g
EXHIBIT A -1
parties agree that, in the event the approvals in paragraph 8 do not occur, the
parties will jointly participate in developing a new scheduling order to propose
to the Hearing Examiner.
11. Also, in the interim between now and the actions described in paragraph 8,
above, the parties agree that any and all discovery deadlines in any litigation
described in paragraph 9, above, are tolled, and any settings and depositions
are withdrawn.
12. In any year in which pumping under the Family Partnership's historic use
permit exceeds 20,481 acre -feet, the District may require the Skiles Family
Partnership to pay the mitigation costs, at an amount not exceeding 50% of
such costs, for the adverse effects on currently permitted wells within a five -
mile radius from any permitted well on the Brazos River Farm, which effects
must be primarily due to the Family Partnership's pumping. Any
determination of whether the adverse effects which are to be mitigated are
primarily due to the Family Partnership's pumping shall be based on data and
information from independent third - parties. Any mitigation under the
provisions of this paragraph shall be enforceable only through formal Board
action, from which the Family Partnership shall have the right to a contested
case appeal before a SOAH Administrative Law Judge.
13. The District agrees that, if the provisions in paragraphs I -11, above, are
satisfied, it will not attempt to amend the Family Partnership's historic use
permit on the grounds set out in District Rule 8.3(g).
14. The District further agrees that, if the provisions in paragraphs 1 -11, above, are
satisfied, the Family Partnership's historic use permit may not be applied to
prohibit the Family Partnership from applying water produced under such
permit to any other land owned by the Skiles interests in Robertson County;
provided, however, that the Family Partnership shall submit in advance of use
a supplement to its application indicating the location of this other land.
15. The Skiles interests agrees to take no action opposing the City of College
Station's pending application for 8,200 acre -feet of Simsboro groundwater.
16. The Skiles interests agrees to withdraw with prejudice their pending motion for
leave to file a counterclaim against the City of Bryan, and to take no action
seeking review or reconsideration of historic use permits issued by the District
to the City of Bryan, City of College Station, or Optim Energy.
17. The City of Bryan, the City of College Station, and Optim Energy agree to take
no action opposing Skiles Family Partnership's application for Simsboro rights
on the Cobb Farm.
Resolution No. 06- 25 -09 -2g
EXHIBIT A -1
18. Subject to the approvals in paragraph 8, above, the signatories below agree on
behall'ofthe parties to be bound by this agreement.
David Neely, City of College Station
George FaLilkner, Optim Energy. "Twin Oaks Plant
William Riley. Brazos Valley
!rvation District
C.A. Skiles. President of Skiles Operating Inc.. General Partner. Skiles Family
Partnership, LTD
C.A. Skiles. Individually
Resolution No. 06- 25 -09 -2g
EXHIBIT A -1
Quo Warranto
Mr. John C. Paschall
County and District Attorney
Robertson County, Texas
P. O. Box 409
Franklin, Texas 77856
The C. A. Skiles Family Partnership, Ltd. and Dr. Cliff Skiles has reached a settlement
in the contested case with the general manager of the Brazos Valley Groundwater
Conservation District and the representatives of the two cities and the power plant. If the
settlement is approved by the District Board and the two cities, the C. A. Skiles Family
Partnership, L.P. can no longer justify the cost of continued litigation including the
discovery matters and hearings that will occur.
Under these circumstances, and of course recognizing that the decision is within your
sole discretion, C. A. Skiles Family Partnership, Ltd. asks that the proceeding be
dismissed. In any event, if the settlement is approved C. A Family Partnership, Ltd will
no longer be able to fund participation by its lawyers in the quo warranto proceedings and
will withdraw as relator.
I have been requested to inquire as to your plans regarding the quo warranto proceeding
and report to all of the parties. Please let me know so that I can inform the parties.
Resolution No. 06- 25 -09 -2g
EXHIBIT A -2
Joint Understanding of Mediated Settlement Agreement
The parties to the Skiles interests' contested case state their mutual understanding of the Mediated
Settlement Agreement in the following particulars:
1. The Mediated Settlement Agreement was signed June 5, 2009, and is referred to here as the
June 5' Agreement.
2. The rolling average in paragraph 1 begins January 1, 2009.
3. The operating permit in paragraph 4 is to be dismissed with prejudice, but without prejudice to
filing subsequent operating permit applications based on changed circumstances.
4. The action by the Board in paragraph 8 means final, effective approval by the Board.
5. All parties are to bear their own attorney fees and costs in the contested case and other
litigation subject to the June 5th Agreement.
6. The June 5ch Agreement binds all the parties, their successors, and assigns.
a;
Renea Hicks
For, the General Manager
Doug Caro#A
For the Skiles interests
Wyiie Mathews
For the Protestant Parties
June 17, 2009