Judge Rejects El Paso Stormwater Lawsuit

County Court-at-Law Judge Javier Alvarez ruled Thursday that the lawsuit brought by Ray Gilbert and two other plaintiffs in May had no merit.

Gilbert said the decision will be appealed to El Paso's Eighth Court of Appeals and may reach the Texas Supreme Court.

Gilbert said he expected the ruling and will now take the case to the court that can actually rule on the law in question.

At issue is not whether the El Paso City Council could establish a stormwater utility but whether the state law allows the city to delegate the authority to operate the utility to the Public Service Board.

El Paso in the rain (Photo by Ceci DiFlores)

The city argues that the Texas Legislature clearly intended for cities to be able to establish stormwater utilities and allowed cities to choose how to do it.

In July 2007, the El Paso City Council created a separate utility to manage stormwater drainage and moved the responsibility for stormwater management and control from the City to the five-member Public Service Board.

The board began managing the new stormwater utility on March 1. Before that date, stormwater management functions were shared by several city departments and funded from the city's general fund.

City residents and businesses have complained bitterly about new stormwater fees imposed in March. Owners of homes in the 2,000 to 3,000 square foot range saw a $4.75 monthly charge added to their water bills.

But the new fee schedule has added more than $1,000 per month to the water bills of some businesses, churches and schools.

In their lawsuit, the plaintiffs argued that because the new stormwater utility is illegal, the charges it has imposed are also illegal. The plaintiffs contend that they paid the "illegal stormwater charges to avoid disruption of water services" to their properties and to avoid financial penalties.

They claim that if the court does not stop the new utility, even higher charges could be imposed.

In a second challenge to the Public Service Board's management of the stormwater utility, a group of citizens has mounted a petition drive to put an initiative before City Council calling on the City to assume control of the utility.

The petition, which requires the signatures of about 2,500 registered voters, could be filed as early as this week.

If City Council rejects the petition, the organizers plan to conduct a second petition drive to add the issue on the ballot this November as a special initiative election.

The City of El Paso in conjunction with the Texas Department of Transportation - El Paso District have in place a Storm Water Management Program that covers pollution prevention measures, pollutant removal techniques, stormwater monitoring, a stormwater ordinance, inspections and enforcement, and other methods to control the quality of stormwater discharged into the Rio Grande, drainage ditches, and arroyos.

This program is being implemented in accordance with a Texas Pollutant Discharge Elimination System Permit that authorizes stormwater discharges from the City of El Paso municipal separate storm sewer system.

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