Wednesday, September 10, 2014

End Op BULLETIN: Appeal of Party Status LOCATION CHANGE

ES, Landowners' appeal of party status to be DECIDED
 by Lost Pines GCD Board of Directors 
September 10, 2014, 7:00 p.m. 
American Legion York Post 276
1502 US Hwy 77, Giddings, TX 78942 
Lawyers for Environmental Stewardship and Landowners will made oral arguments before the Lost  Pines Groundwater Conservation District Board of Directors on August 13, 7:00 p.m. at the Bastrop Convention Center.  ES and Landowners are requesting that the decision by the ALJ to deny party status be reversed and remanded back to SOAH for contested case hearing. The Lost Pines Board continued the hearing until September 10, 2014.  

The public is encouraged to attend.  Though public comments will not be heard, the face of the people needs to be seen.   This is a very important hearing about your rights to defend your interests in the groundwater beneath your land. 

Since our filing on August 1st, End Op has filed a reply to our request to reverse the decision to deny ES and Landowners party status in the contested case hearing.  Counsel for the Landowners has also filed an amicus brief regarding the Landowner's request. 

Environmental Stewardship (ES) and Landowners (Andrew Meyer, Bette Brown, and Darwyn Hanna) have filed an appeal of the decision by the Administrative Law Judge (ALJ) to deny party status in the End Op contested case hearing.  The request was filed with the Lost Pines Groundwater Conservation District Board of Directors on August 1, 2014 and will be heard at a special meeting on August 13, 2014 in Bastrop, TX. The time and location of the meeting has not yet been established. 

ES and Landowners (collectively "Requesters") have asked that the Board reverse the ALJ's decision that they are not affected persons, and remand End Op's application back to the State Office of Administrative Hearings (SOAH) for a contested case hearing including Requesters as parties. 

The ALJ denied Requesters' petition for party status on the basis that a requester must demonstrate an actual or intended use of groundwater owned before the person can assert an interest in the groundwater.  ES and Landowners argue that ownership of land, with the accompanying vested interest in groundwater, constitutes a legally protected interest within the framework of the Texas Water Code (36.002) and the Texas Supreme Court decision in the Edwards Aquifer Authority v. Day case. 

The Supreme Court held that a landowner is regarded as having absolute title to the water in place beneath his or her land, and that each owner of land owns separately, distinctly and exclusively all of the water beneath his or her land, subject to the rule of capture and state regulation.  The court went on to conclude that landowners have a constitutionally compensable interest in groundwater, and that "one purpose of groundwater regulation is to afford each owner of water in a common, subsurface reservoir a fair share." 

The Supreme Court further noted, in quoting the United States Supreme Court, "to deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody ... where a harm is concrete, though widely shared, the Court has found injury in fact." 

IF the ALJ's reasoning is allowed to stand, then the District will create an incentive for every landowner to drill a well and pump groundwater in order to protect their interest in that groundwater.   Importantly, the ALJ's decision punishes landowners who may choose to conserve groundwater, since the ALJ has effectively held that a landowner who wishes to use or waste his or her groundwater has a protected interest, while a landowner who opts to limit his or her use of groundwater has no right to protect his or her groundwater interests.  The District should not adopt the ALJ's approach that rewards needless or wasteful pumping. 

Subsequent to the ALJ's decision on party status, AQUA announced a partial settlement with End Op that would establish a mitigation fund for Aqua of up to $15 million over 20 years. In exchange, AQUA agreed to limited arguments and limited cross-examination, including refraining from arguing on behalf of any landowner other than AQUA at the hearing. The settlement also resulted in a reduction of End Op's request for a permit to 46,000 AFY instead of 56,000 AFY, and a reduction of pumping in Bastrop County. The AQUA mitigation fund is controlled by AQUA and may be used at AQUA's sole discretion, with no showing of fault by End Op.  AQUA and End Op also agreed that End Op would set up a mitigation fund of up to $3.75 million to be held by a third-party trustee to pay claims of landowners who are not Aqua customers, as long as they have wells either in the Simsboro Aquifer or within one mile of an End Op well. No details of the landowner fund have been offered by either AQUA or End Op, including whether these landowners will have the burden of proving End Op caused damage to their wells. Click here for a link to AQUA's frequently asked questions.  The ALJ's decision recommended the landowner mitigation fund be included in any End Op permit --- clearly, End Op, AQUA and the ALJ have attempted to settle issues affecting private landowners and their property rights, while denying the landowners themselves their rights of due process and equal protection.   

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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
Steve Box
Executive Director
Environmental Stewardship
P.O. Box 1423
Bastrop, TX 78602   
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Lost Pines Groundwater Conservation District Hearings

DrawdownWATER BANKRUPTCY:  A Visual Perspective
What does "draw-down" and "water bankruptcy" resulting from groundwater pumping look like on a groundwater map?  As you may know, the Desired Future Conditions are established in terms of the draw-down, in feet, of aquifers in Bastrop and Lee counties and throughout the District. 

Recently, Environmental Stewardship obtained visual images based on the Groundwater Availability Model (GAM) used by the Lost Pines Groundwater Conservation District to evaluate the impact of proposed pumping from current permit applications on the Simsboro Aquifer.  Draw-down, measured in feet, is indicated on the contour lines of the maps below.  Click on Maps below to Enlarge

NOTICE:  Please keep in mind that the images below (except for Image 1) are for the PROPOSED permits ONLY (124,226 acre-feet/year) and DO NOT include EXISTING permits (45,365 acre-feet/year). 


Image 1.  PERMIT THIS - The draw-down, in feet, expected when the Adopted Desired Future Conditions (DFC) are met in Bastrop and Lee counties. The dark area in Burleson County is from Post Oak Savannah GCD pumping.  The Lost Pines GCD Board of Directors used the legal constraints of the adopted DFC to limit the Forestar permit.  Click on Map to Enlarge
Image 2.  NOT WATER BANKRUPTCY - The draw-down map above, expressed in feet, demonstrates what is expected if ALL current applications are approved and pumped to the maximum requested. The Forestar permit has been reduced from 45,000 to 12,000 acre-feet per year.  However,  Forestar is expected to appeal to District Court in an attempt to overturn this Board decision.  Notice the red area in Lee county where draw-down is 1000 ft, and orange area in Bastrop County where draw-down is 750 ft.  Click on Map to Enlarge
 Image 3.  WATER BANKRUPTCY - The majority of draw-down, in feet, in Lee County is from the proposed Forestar well field.  Fortunately, the Forestar permit has been reduced from 45,000 to 12,000 acre-feet per year.  However,  Forestar is expected to appeal to District Court in an attempt to overturn this Board decision. Click on Map to Enlarge

Image 4.  WATER BANKRUPTCY - The majority of draw-down, in feet, in Bastrop County is from the proposed End Op well field, which is directly below Houston Toad habitat.  The End OP application has been contested by Aqua Water Supply Corporation and a hearing on the merits is being scheduled.  Click on Map to Enlarge
If permitted at all, individual permits should first be reduced to levels actually supported by the application and then all permits reduced overall as necessary to an aggregate level that, including existing permits, protects the Adopted Desired Future Conditions.  In summary, if permitted at all, Forestar and End Op qualify for less than 5% of the water they are seeking.  In addition, the district needs to factor in the impact of existing permits before issuing any new permits. This has not been done. (See Image 1). 
Image 5. Permit This!  This image depicts Forestar pumping reduced to 25% of requested pumping volume but DOES NOT include existing permits. The Board reduced Forestar's permit to 26% of the requested amount.  Click on Map to Enlarge
Image 6.  Permit This! This image depicts End Op pumping reduced to 25% of requested pumping volume but DOES NOT include existing permits.  Click on Map to Enlarge

Lost Pines Groundwater Statistics
Region K
Below are some statistics about current applications, existing permits and facts from the Lost Pines Management Plan. 

Current Simsboro Aquifer Applications Pending:
-  45,000 acre-feet/yr          Forestar Group      Approved at 12,000 ac-ft/yr
-  10,000 acre-feet/yr          LCRA                    Approved at 5,000 ac-ft/yr
-  56,000 acre-feet/yr          End Op                 Contested
-    3,226 acre-feet/yr          Manville WSC        Approved
-    3,360 acre-feet/yr          Heart of Texas      Withdrawn
-    1,613 acre-feet/yr          City of Bastrop      Approved

Currently Permits in the Simsboro Aquifer 
-  23,627 acre-feet/yr            Aqua WSC
-    6,653 acre-feet/yr            Manville WSC 
-  11,023 acre-feet/yr            Lee Co. WSC 
-       100 acre-feet/yr            Lee Co. FWSD 
-         67 acre-feet/yr            Hunters Crossing 
-    3,850 acre-feet/yr            Alcoa (currently pumping 6201 acre-feet/yr)
45,365 acre-feet/yr        TOTAL PERMITS FOR SIMSBORO WELLS

  4.4 times the Available Water (2060 MAG) for the Simsboro Aquifer
  5.6 times the Available Water (2010 MAG) for the Simsboro Aquifer
A FEW FACTS From the Lost Pines Management Plan
-  Total Available Groundwater (MAG) in the District by 2060 is 58,888 acre-feet/yr.
-  Bastrop County projected water demand by 2060 is 65,266 acre-feet/yr.
-  Lee County projected water demand by 2060 is 6,603 acre-feet/yr.   
-  Current discharge to surface waters from all aquifers is 78,612 acre-feet/yr.  
-  Net recharge to all aquifers (recharge - discharge) is 7,249 acre-feet/yr.   
-  Current pumping for all aquifers in the District is 47,811 acre-feet/yr (website)
-  Current permits for all aquifers 73,000 acre-feet/yr (Austin-American Statesman) 

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