Wednesday, October 16, 2013

BREAKING NEWS: SOAH Judge Denies Party Status

The SOAH Judge has denied Landowners Appeals Requesting Party Status in the
End Op, LP Contested Case Hearing 

The Administrative Law Judge for SOAH just released Order No. 5 denying Landowners' requests for due process in obtaining a hearing before the Lost Pines GCD to get a final decision regarding party status.  This order denies Environmental Stewardship and the Landowners a voice in the contested case hearing between Aqua WSC and End Op.  The order also denies the Lost Pines GCD Board of Directors, who have the ultimate authority to decide this question of law, the opportunity to make a timely decision regarding party status.  Now, a Board decision on the matter cannot be made, if at all, until the contested case hearing is concluded; likely in the April-May, 2014 time-frame.   

The decision to deprive these landowners of the ability to protect and defend their rights to groundwater in place below their property at the local level, a right we believe follows from the Supreme Court Day decision, has broad implications for landowners throughout the state.

Click here for ALJ's Order No. 5 denying Landowners' requests
Click here for District's response to ALJ 
Click here for Aqua WSC's most recent brief
Click here for End Op's most recent brief  
Click here for Landowners' (Protestants') most recent brief 


Landowners in Bastrop and Lee counties who were recently denied the right to be heard in a contested case hearing are appealing the decision. 

The landowners had sought "party status" in the End Op contested case hearing being held before the State Office of Administrative Hearings (SOAH). This administrative decision has broad, significant implications throughout Texas for landowners wanting to protect the groundwater in place beneath their lands. Click here for decision
Four landowners, including Environmental Stewardship, petitioned Lost Pines Groundwater Conservation District for party status (legal standing and the right to legally participate) in a disputed groundwater pumping permit hearing involving End Op (a water marketer), Aqua Water Supply Corp., and the District.  The District asked that SOAH rule on the request.

Coalition Position on Permits

The Texas Supreme Court affirmed the ownership of groundwater
in place as real property in the recently-decided Day decision. This SOAH decision upholds the rule of capture without recourse. Contrary to the Day decision, this decision denies landowners the opportunity to participate in administrative proceedings concerning the depletion of their groundwater, except under the most narrowly defined conditions.

The Administrative Order strips landowners of their rights to protect their property.  The only entity that was given standing was Aqua, a water supply corporation with large well fields and pumping permits. The Administrative Law Judge (ALJ) ruled that a landowner must "demonstrate ownership of wells or have plans to exercise their groundwater rights," AND "must establish a specific injury to a personal justiciable interest" to have standing in a contested
case hearing before a groundwater conservation district.
The action of this administrative order, if left to stand, will establish the conditions for party status in contested case hearings held before groundwater conservation districts throughout the state, and will severely limit the ability of landowners to protect their groundwater property rights by severely limiting their ability to argue the merits of their case.  Click here for an analysis of the decision 
The questions the landowners are posing to the Lost Pines Groundwater Conservation District's Board in their appeal is this (in layman's terms):  Does the ownership of real property above and within an aquifer (groundwater) where drawdown will potentially occur as the result of a groundwater permit allowing the pumping of tens of thousands of acre-feet of water per year constitute a legally protected, ownership interest that a landowner can defend against those who wish to pump away this property?

So we need your financial assistance now more than ever before!

Unfortunately, the fact is, it takes money to be heard.  Environmental Stewardship, along with the landowners, will need to launch an all out effort to make persuasive legal arguments that resonate with the Lost Pines GCD Board of Directors and Administrative Law Judge.  This will require our legal teams to call expert witness to credibly tell our story.  Our legal teams will have to discredit the claims of End Op and its expert witnesses through cross-examination.  To be successful in cross-examination takes a great deal of preparation. 


Just take a look at the draw-down maps in the left side bar below
 to see what water bankruptcy looks like visually on a groundwater map.

Please consider making a generous TAX DEDUCTIBLE contribution today.
 Your ongoing support is needed and appreciated.

Click this link to DONATE NOW

or, as an option, consider making a donation to the newly formed 
Lost Pines Water Defense Fund
P.O. Box 690, Elgin, TX 78621
 For more information call 512-657-2089

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