Facts about the Phillips Ditch case explained
May 6, 2011 at 12:06 a.m.
Now that District Judge Kemper Stephen Williams has ordered Keith Redburn to remove the "cement plug" illegally installed in the storm drain, here are some important facts left out of the media coverage about this case:
The "Phillips Ditch" is a naturally occurring waterway that drains rainfall from more than 120 acres of the city. In 1931, the city council approved $250,000 in bond money for street construction and to pipe the Phillips Ditch where it followed North Street down to where the Ditch turned south, away from the roadway (this is where Redburn installed the cement plug).
At the city council meeting of Feb. 10, 1941, the prior owner of this property, D. Bramann, agreed to assume any damage from the ditch to his property in exchange for the city council allowing him to fence that property, including the drainage ditch.
Because of this 1941 agreement, any damage from the ditch to that property was assumed by the prior landowner, and has not been a problem for more than 60 years. Redburn, the current landowner, purchased the property in 2004, and his deed says he took the property AS IS. When purchasing this property, Redburn was bound by that agreement between Bramann and the city council.
There have been eight letters exchanged between the city and Redburn and his attorneys on this issue since 2006. In a letter from then City Attorney David Smith on Sept. 5, 2007, Smith wrote that the Phillips Ditch was a natural, open water course that had been there for many years, and that if Redburn were to dam the water course, there would be substantial damage to many residents. The letter also stated that the city would like to come to "reasonable terms with your client and clean out the waterway on his property." Neither Redburn nor his attorney responded to this offer.
Redburn has proposed three options to the city, none of which are realistic and several of which are illegal.
There is a legal difference between maintaining the waterway so that it drains effectively - which the city has offered to do - and cleaning up refuse for purely cosmetic purposes, which the city cannot do.
The Federal Environmental Protection Agency and the Texas Commission on Environmental Quality each require that storm water drainage systems be protected and controlled by the local governing unit.
Our local ordinance, called the "MS4" ordinance, states in part that:
"Every person owning property through which a watercourse passes, or that person's lessee, shall keep and maintain all parts of the watercourse within that property reasonably free of trash, debris, excessive vegetation and other obstacles that would pollute, contaminate or significantly retard the flow of water through the watercourse."
The city will continue to uphold its legal obligations to protect the natural waterway as mandated by the state and federal government.
In this case, the protection of this waterway also protects the residents of the city from potential flooding.
For more information about this case, please visit the city's website at www.victoriatx.org, and click on the link to "FACTS about the illegal 'cement plug' installed in a storm drain."
O.C. Garza is the communications director for the city of Victoria.