18-TCEQ APPLICATION FOR AMENDMENT TO WATER RIGHTmemo�andum
TO: Mayor & City Council
John Godwin, City Manager
FROM: Kent McIlyar, City Attorney
SUBJECT: TCEQ APPLICATION FOR AMENDMENT TO WATER RIGHT
DATE: June 10, 2013
BACKGROLIND: On December 10, 2012, the City Council approved an Excess Raw Water
Supply Agreement between the NextEra Energy (Lamar Power Partners), Daisy Farms and the
City of Paris whereby Daisy Farms could purchase up to 3 million gallons per day of raw water
off of the unused capacity allocated to Lamar Power Partners (8 MGD).
STATUS OF ISSUE: The City's existing water right permit with the State allows the City to
divert up to 20,000 acre feet of water per year from Lake Pat Mayse to the Sulphur River Basin
for industrial (power plant) purposes. This Application for Amendment of Water Right, will add
"Agricultural" to the permitted purposes for this water in the Sulphur River Basin so that the CiTy
can sell excess raw water to Daisy Farms. This amendment will simply give the City mare
flexibility in the use of its allocated water in the Sulphur River Basin.
BUDGET: N/A
RECOMMENDATION: Approve the Resolution authorizing the TCEQ Application for
Amendment of Water Right.
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Draft
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS,
AUTHORIZING AND APPROVWG AN APPLICATION FOR AMENDMENT TO
ITS CERTIFICATE OF ADJUDICATION NO. 02-4940A WITH THE TEXAS
COMMISSION ON ENVIRONMENTAL QUALITY TO ADD AN
AGRICULTURAL PURPOSE OF USE TO ALLOW THE CITY TO SELL EXCESS
RAW WATER TO DAISY FARMS FOR AGRICULTURAL PURPOSES AT
DAISY FARMS COMMERCIAL DAIRY LOCATED ON SH 19/24 AT FM 2036,
LAMAR COUNTY, TEXAS; AUTHORIZING THE CITY MAIVAGER TO
EXECUTE ALL NECESSARY DOCUMENTS; MAKING OTHER FINDINGS AND
PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, on December 10, 2012, the City Council approved an Excess Raw Water
Supply Agreement between the City of Paris, NextEra Energy (Lamar Power Partners) and
Daisy Farms whereby Daisy Farms could purchase up to 3 million gallons per day of raw
water off of the unused capacity allocated to Lamar Power Partners (8 MGD); and,
WHEREAS, the City's existing water right permit with the State allows the City to
divert up to 20,000 acre feet of water per year from Lake Pat Mayse to the Sulphur River
Basin for industrial (power plant) purposes. This Application for Amendment of Water
Right will add "Agricultural" to the permitted purposes for this water in the Sulphur River
Basin so that the City can sell excess raw water to Daisy Farms; and,
WHEREAS, NextEra does not use all of its contracted supply and desires to allow
Daisy Farms to utilize any of NextEra's reserved raw water not needed by its operations.
NextEra retains the priority right to the raw water and Daisy Farms is not guaranteed a
minimum quantity of raw water; and
WHEREAS, the City Council of the City of Paris hereby finds that it is in the best
interest of the City of Paris and its citizens to approve the filing of the Application for
Amendment of Certificate of Adjudication No. 02-4940A with the Texas Commission
Environmental Quality (TCEQ) as set out in the Application attached hereto and
incorporated herein as Exhibit "A".
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUIVCIL OF THE CITY OF
PARIS, TEXAS, THAT:
Section 1. The findings set out in the preamble to this resolution are hereby in all
things approved.
Section 2. The Application to amend Certificate of Adjudication No. 02-4940A to
add an Agricultural purpose of use to the existing authorization, as set out in the
Application attached hereto as Exhibit "A", is hereby in all things approved.
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Section 3. The City Manager be, and is hereby authorized to execute the
Application and all other documents in connection therewith on behalf of the City of Paris,
Texas substantially according to the terms and conditions set forth in the Application to
Amend Certificate of Adjudication No. 02-4940A, attached hereto as Exhibit "A".
Section 4. This Resolution was passed by City Council at a regular meeting of the
Paris City Council held in compliance with the requirements of the Texas Open Meetings
Act.
Section 5. This resolution shall become effective immediately upon its passage.
DULY PASSED AND APPROVED this 10th day of June, 2013.
ATTEST:
Janice Ellis, City Clerk
APPROVED AS TO FORM:
W. Kent McIlyar, City Attorney
__ �s
A.J. Hashmi, M.D., Mayor
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TCEC�
Texas Commission on Environmental Qualitv
PO Box 13087, MC-160, Austin, Texas 78711-3087
Telephone (512) 239-4691, FAX (512) 239-4770
APPLICATION FOR AMENDMENT TO A WATER RIGHT
Notice: This form will not be processed until all delinquent fees and/or penalties owed to the TCEQ or the Office
of the Attorney General on behalf of the TCEQ are paid in accordance with the Delinquent Fee and Penalty
Protocol.
Customer Reference Number (if issued): CN
Note: If you do not have a Customer Reference Number, complete Section II of the Core Data Form (TCEQ-10400) and submit it with this application.
Name: Citv of Paris. Texas
Address: P.O. Box 9037
Paris, Texas 75461-9037
Phone Number: 903-784-9201
Email Address: iaodwin(a�paristexas.qov
2. Applicant owes fees or penalties?
r� Yes r� No
Fax Number: 903-785-8519
If yes, provide the amount and the nature of the fee or penalty as well as any identifying number:
3. rl Permit No. r Certificate of Adjudication No. 02-4940A
Stream: Sanders Creek Tributarv of Red River Watershed: Red River Basin and Sulqhur River Basin
Reservoir (present condition, if one exists): Pat Mavse Reservoir (qood)
County: Lamar
4. Proposed Changes To Water Right Authorizations:
This application seeks to amend Certificate of Adiudication No. 02-4940A to add an aqricultural
purpose of use to the existinq authorization in that appropriation.
(Attach additional page as necessary, attach map/plat depicting project location, diversion point, place of use, and other pertinent data).
5. I understand the Agency may require additional information in regard to the requested amendment before
considering this application.
Name (sign)
Name (print)
Name (sign)
John Godwin, City Manaqer
Name (print)
Subscribed and sworn to me as being true and correct before me this day of
20
Notary Public, State of Texas
Form TCEQ-10201 (revised 2/2010) �� � �
Error! Unknown document property name. EX H� B I T v�,
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Page 1
Supplemental Diversion Point Information Sheet N/A
Diversion Point No.
1) Watercourse:
Location of point of diversion at Latitude °N, Longitude °W, also,
bearing ° feet (distance) from the corner of the
Original Survey No. , Abstract No. , in
COUflty, T2xaS. (Provide the latitude and longitude coordinates in decimal degrees, to at
least six decimal places. Indicate the method used to calculate the diversion point location).
3) Location from County Seat: miles in a direction from ,
County, Texas.
Location from nearby town (if other than County Seat): miles in a
direction from , a nearby town shown on county highway map.
4) Zip Code:
5) The diversion will be (check (�) all appropriate boxes and if applicable, indicate whether existing or proposed):
Directly from stream Existing Proposed
From an on-channel reservoir
From a stream to an off-channel reservoir
From a stream to an on-channel reservoir
From an off-channel reservoir
Other method (explain fully, use additional sheets if necessary)
6) Rate of Diversion (Check (�) applicable provision):
_1. Diversion Facility:
A. Maximum gpm (gallons per minute)
1) Number of pumps
2) Type of pump
3) gpm, Pump capacity of each pump
4) Portable pump Yes or No
_2. If by gravity:
A. Headgate Diversion Dam Maximum gpm
B. Other method (explain fully - use additional sheets if necessary)
7) The drainage area above the diversion point is acres or square miles.
Form TCEQ-10201 (revised 2/2010) Page 2
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Supplemental Dam/Reservoir Information Sheet
Dam (structure), Reservoir and Watercourse Data
A. Type of Storage Reservoir (indicate by checking (�l) all applicable)
r on-channel Ii off-channel f existing structure r proposed structure� r exempt structure""
N/A
Applicant shall provide a copy of the notice that was mailed to each member of the governing body of each county and municipality in which
the reservoir, or any part of the reservoir, will be located as well as copies of the certified mailing cards.
��TWC Section 11.143 for uses of water for other than domestic, livestock, or fish and wildlife from an existing, exempt reservoir with a capacity
of 200 acre-feet or less. Please complete Paragraph 6 below if proceeding under TWC 11.143.
Date of Construction
B. Location of Structure No
1) Watercourse:
2) Location from County Seat: miles in a direction from ,
County, Texas.
Location from nearby town (if other than County Seat): miles in a direction from
, a nearby town shown on county highway map.
3) Zip Code:
4) The dam wilf be/is located in the
No. , Abstract No. in _
5) Station on the centerline of the dam is °
Original Survey
County, Texas.
(bearing), feet
(distance) from the corner of Original
Survey No. , Abstract No. , in County, Texas, also
being at Latitude °N, Longitude °W. (Provide the latitude and longitude
coordinates in decimal degrees, to at least six decimal places. Indicate the method used to calculate the diversion point location).
C. Reservoir:
1) Acre-feet of water impounded by structure at normal maximum operating level: _
2) Surface area in acres of reservoir at normal maximum operating level:
D. The drainage area above the dam is acres or square miles.
E. Other:
1) If this is a U.S. Natural Resources Conservation Service (NRCS) (formerly Soil Conservation
Service (SCS)) floodwater-retarding structure, provide the Site No. and watershed
project name
2) Do you request authorization to close the "ports" or "windows" in the service spillway?
r� Yes r� No
Form TCEQ-10201 (revised 2/2010) Page 3
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Supplemental Discharge Point Information Sheet N/A
Discharge Point No. or Name:
1) Select the appropriate box for the source of water being discharged:
i Treated effluent
i Groundwater
i Other
2) Location of discharge point will be/is at Latitude ° N, Longitude °W,
also bearing ° feet from the corner of the
Original Survey No. , Abstract No. , in County, Texas.
Provide the latitude and longitude coordinates in decimal degrees, to at least six decimal places, and indicate the
method used to calculate the diversion point location. (i.e., GPS Unit, USGS 7.5 Topographic Map, etc.)
3) Location from County Seat: miles in a direction from ,
County, Texas.
Location from nearby town (if other than County Seat): miles in a
direction from , a nearby town shown on county highway map.
4) Zip Code:
5) Water will be discharged into stream/reservoir,
(tributaries
Basin.
6) Water will be discharged at a maximum rate of cfs ( gpm).
7) The amount of water that will be discharged is acre-feet per year.
8) The purpose of use for the water being discharged will be
9) Additional information required:
For groundwater
1. Provide water quality analysis and 24 hour pump test for the well if one has been conducted.
2. Locate and label the groundwater well(s) on a USGS 7.5 Minute Topographic Map
3. Provide a copy of the groundwater well permit if it is located in a Groundwater Conservation District.
4. What aquifer the water is being pumped from?
For treated effluent
1. What is the TPDES Permit Number? Provide a copy of the permit.
2. Provide the monthly discharge data for the past 5 years.
3. What % of treated water was groundwater, surface water?
4. If any original water is surface water, provide the base water right number.
Form TCEQ-10201 (revised 2/2010) Page 4
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SUPPLEMENT TO
APPLICATION TO AMEND
CERTIFICATE OF ADJUDICATION NO. 02-4940A
CITY OF PARIS, TEXAS
I. Introduction
In addition to the TCEQ Application Form (Form 10201) for the City of Paris'
application to amend its Certificate of Adjudication No. 02-4940A (the "Application"), a
narrative description of the permit sought by the Application is found below. This supplement to
the Application also includes, attached hereto, the following documents:
A. Certificate of Adjudication No. 02-4940
B. Certificate of Adjudication No. 02-4940A
C. TCEQ Letter Approving City's Water Conservation and Drought Contingency
Plans
D. Minutes of Region D Planning Group Meeting on May 16, 2012
E. Paris City Council Authorization to File Application to Amend COA 02-4940A
II. Background
The City of Paris, Texas (the "City") is a Home-Rule Municipal Corporation located in
Lamar County, Texas. The City is the owner of Certificate of Adjudication No. 02-4940
authorizing it to impound up to 124,500 acre-feet of water within the Pat Mayse Reservoir in
Lamar County for municipal and industrial purposes. A copy of COA 02-4940 is included
herewith as Attachment A. In 2000, the City applied for and received an amendment to
Certificate No. 02-4940, No. 02-4940A, authorizing the use of up to 20,000 acre-feet of water
per annum for industrial purposes in the Sulphur River Basin in Lamar County. This
amendment was issued without notice or opportunity for hearing pursuant to Water Code Sec.
11.085 (v)(4). A copy of COA 02-4940A is included herewith as Attachment B. Pursuant to its
authorization, the City entered into an agreement with Panda Paris Power, L.P. (subsequently,
Lamar Power Partners and now NextEra Energy Resources) to provide up to eight million
gallons per day of raw water for industrial use in the Sulphur River Basin in Lamar County,
Texas.
The City has been approached by Daisy Farms, LLC ("Daisy Farms") to enter into an
excess raw water supply agreement for that amount of unused or excess raw water out of
NextEra's eight million gallons per day allotment for use at its commercial dairy operation in
Lamar County. Daisy Farms is in need of a raw water supply for agricultural use at its facilities,
which are located within that portion of Lamar County in the Sulphur River Basin. Because the
City's COA 02-4940A authorizes use of water within the Sulphur River Basin for industrial
purposes only, the City requests an amendment to its COA 02-4940A to add an agricultural
purpose of use to provide water to Daisy Farms pursuant to Texas Water Code Section 11.122.
3752525.1 g 1
Pursuant to the Texas Supreme Court's decision in City ofMarshall v. City of Uncertain,�
for a water right amendment that does not seek to increase the amount or rate of diversion,
TCEQ must assess several "limited public interest criteria" in determining whether to issue
notice on an application to amend a water right filed under Texas Water Code § 11.122(b).
These criteria are addressed below. Based upon the full-use assumption and the information
provided below, the City believes the Commission can issue the City's proposed amendment to
add an agricultural purpose of use to COA 02-4940A without notice pursuant to TCEQ
regulations at 30 TAC § 295.158(c) and in compliance with the direction of the Texas Supreme
Court.
III. Aqplicant Information
Name of Applicant: City of Paris, Texas
Address: P.O. Box 9037, Paris, Texas 75461-9037
Principal Contact: John Godwin, City Manager
Telephone: (903) 784-9201
Fax: (903) 785-8519
IV. Administrative Requirements and Fees
This Application provides relevant information to address the administrative
requirements in 30 TAC § 295, Subchapter A, and the requirements of Texas Water Code
Chapter 1l.
In accordance with 30 TAC § 295.131 and other TCEQ rules relating to fees, the City is
submitting payment of $100.00 with this Application. With filing this Application, the City
requests a determination of any additional fees that may be required. Upon receipt of such
determination, the City will forward such fees to the TCEQ.
V. Beneficial Use
Texas Water Code § 11.134(b)(3)(A) requires that proposed appropriations of water be
intended for a beneficial use. The "beneficial use" of water is defined in Texas Water Code §
11.002(4) and 30 TAC § 297.1(8) as the use of water "which is economically necessary for a
purpose authorized by [Chapter 11 of the Texas Water Code]." An agricultural purpose of use is
defined in Texas Water Code § 11.023 as a purpose for which water may be diverted and
beneficially used and is defined in 30 TAC § 297.1(2) to include "any use or activity involving
agriculture, including irrigation."
This amendment to COA 02-4940A will allow the City to provide water for agricultural
purposes to Daisy Farms, a 25,000 cow dairy facility that is being constructed by Daisy Brand
LLC, a manufacturer and retailer of sour cream and cottage cheese products throughout the
United States. This permit amendment will allow the City to provide water to an industry in
Lamar County that will bring economic development to the area while promoting agri-tourism.
' See City ofMarshall v. City of Uncertain, 206 S.W. 3d 97 (Tex. 2006).
3752525.1 � � 2
VI. Water Conservation, Drought Contingencv, and Avoidance of Waste
The City has adopted and implemented a Water Conservation and Drought Contingency
Plan that has been submitted to and approved by TCEQ pursuant to the requirements of 30 TAC
Chapter 288. A copy of the TCEQ letter approving the City's Water Conservation and Drought
Contingency Plan is included herewith as Attachment C. These plans include provisions that
allow the City to enforce conservation of supplies on customers, thereby reducing the
consumption of water, and the loss or waste of water, so that a water supply is made available for
future or alternative uses.
As defined in both 30 TAC § 295.9 and Texas Water Code § 11.002(8), "conservation"
means those practices that will "reduce the consumption of water, reduce the loss or waste of
water, impYOVe the efficiency in the use of water, or increase the recycling and reuse of water so
that a water supply is made available for future or alternative uses." [Emphasis Added].
Allowing the City to serve customers within Lamar County for agricultural purposes will
maximize the efficient use of existing surface water supplies. Such efficiency, along with the
City's water conservation and drought contingency plans, will allow the City to avoid waste and
achieve water conservation in the provision of water to customers within Lamar County.
VII. Impacts on Other Water Rights Holders or the On-Stream Environment
A. The Full-Use Assumption
The City's proposed amendment to add an agricultural purpose of use to COA 02-4940A
will not have any impact on other water rights holders or the on-stream environment on Sanders
Creek tributary. The City is currently authorized to divert and fully consume up to 20,000 acre-
feet of water per annum for industrial use purposes within the Sulphur River Basin pursuant to
COA 02-4940A, and pursuant to Texas Water Code § 11.046(c), which provides that water
authorized for diversion can be "beneficially used and reused" without limit. Unless provided
otherwise in a water right, there is no restriction against full consumption of water properly
authorized for diversion by the state. Pursuant to the "full use assumption" of Texas Water Code
§ 11.122(b), the City's use of a portion of its 20,000 acre-feet of water rights for agricultural
purposes within the Sulphur Basin will not cause an adverse impact on other water rights holders
or the on-stream environment of a greater magnitude than if the City fully exercised its rights as
currently authorized in COA 02-4940A. By employing the Water Code's "full use assumption,"
there is no circumstance under which downstream water rights or the environment will be
harmed by the City's proposed amendment. The City does not seek to move or add a diversion
point, increase the rate at which it diverts water, or increase the amount of water the City is
currently authorized to divert and fully consume. The City merely asks to add an agricultural
purpose of use to its existing COA 02-4940A so that the City will have the ability to provide
water to customers for agricultural use within the Sulphur Basin in Lamar County.
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B. Impacts "Beyond or Irrespective" of the Full-Use Assumption
In its decision in the City of Marshall case, the Texas Supreme Court suggests that the
Commission must evaluate whether a proposed amendment will affect other water rights holders
or the on-stream environment "beyond or irrespective" of the full-use assumption. The Court
provides that such an effect may occur with applications seeking to move the point of diversion
"upstream above a senior right holder," or seeking to change the purpose of use from a
"nonconsumptive use to a consumptive one." The City's Application seeks neither of these
types of amendments, nor any amendment that will harm other water right holders or the
environment beyond the legislatively mandated full-use assumption. The City's COA 02-4940A
currently includes an authorization to divert, without any limitation or condition on consumption,
up to 20,000 acre-feet of water per annum for industrial purposes within the Sulphur River Basin
in Lamar County. The City's proposed amendment seeks only to add an agricultural purpose of
use to this existing authorization, and does not in any way alter the amount of water the City may
ultimately consume under its water right. With its Application, the City merely seeks the ability
to more efficiently utilize its water supply within the current parameters of COA 02-4940A to
serve customers that look to the City for existing surface water supplies.
VIIL Public Welfare
The proposed amendment will allow the City to provide water to customers within Lamar
County for beneficial use purposes, as defined in the Texas Water Code. Such action is
consistent with the City's intent to protect the public welfare, and will certainly not be
detrimental to the public welfare, as is addressed in Texas Water Code § 11.134(b)(3)(C).
Indeed, the proposed amendment will benefit the public welfare as it will allow the City to
maximize the efficient use of existing supplies to provide raw water to customers within Lamar
County that would otherwise require greater use and appropriation of unappropriated water. By
maximizing the efficient use of its supplies to serve customers within Lamar County, and
managing the use of that water pursuant to its TCEQ-approved water conservation and drought
contingency plans, the City can ensure the best use of its surface water supplies and protect the
public welfare.
IX. Consistency with State and Re�ional Water Plans
The City's proposed amendment is consistent with demands identified by the Region D
Regional Water Planning Group. While irrigation and livestock demands for Lamar County
included in the 2011 Region D Water Plan do not show significant increases, such demands do
not include demands created for agricultural use by the Daisy Farms project currently being
constructed and permitted. Included herewith as Attachment D is a copy of the Minutes of the
Northeast Texas (Region D) Regional Water Planning Group Meeting held on May 16, 2012,
during which meeting the Region D Water Planning Group approved a motion to modify the
water planning demand projections in Lamar County to include the Daisy Farms project. The
City's proposed amendment to COA 02-4940A will allow it to provide water to meet a future
demand within Lamar County, and thus this proposed amendment is consistent with state and
regional water plans. Furthermore, the proposed amendment is certainly not inconsistent with
the state and regional water plans.
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X. Groundwater Assessment
Adding an agricultural purpose of use to the City's COA 02-4940A will have no effect on
groundwater resources or groundwater recharge to any greater degree than would the City's
existing diversion and use of water for industrial use purposes. Thus, groundwater resources and
groundwater recharge are not implicated by this Application. Further, according to the Region D
Northeast Texas Regional Water Planning Group, groundwater resources are limited within
Lamar County. As such, allowing the City to serve agricultural use customers will diminish the
potential for the depletion of existing groundwater resources by making existing surface water
supplies available for beneficial use.
XI. Authority to File Application
On , 2013, the City Council of the City of Paris Texas authorized the filing
of this Application. A copy of the City's action authorizing the filing and prosecution of the
Application is included herewith as Attachment E.
XII. AdditionalInformation
To the extent that additional information regarding the City's proposed amendment to
COA 02-4940A is required, please contact the attorneys working with the City in this matter,
Martin Rochelle (512-322-5810) or Tina Ramage (512-322-5887).
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