Water: Conservation or growth? Application by development company could lead to lawsuit

By Erin Green

Austin Community Newspapers Staff

Link to article

Water conservation versus growth and the future of water usage throughout Central Texas may be the focus of possible litigation within the next few months.
And Bastrop County is potentially right in the middle.

The county’s involvement comes after Forestar USA Real Estate Inc., a real estate development company, approached Lost Pines Groundwater Conservation District, asking for a permit to draw 45,000 acre-feet of water from the areas the LPGCD covers, including Bastrop and Lee counties.

Linda Curtis, of Independent Texans, another group active in water rights, calls it potentially “the next big test case on water,” which could involve not only Bastrop and Lee counties, but also Hays County, where Curtis said residents and other water-rights advocates, such as Wimberley Valley Watershed Association member Malcolm Harris, and other groups, are keeping a close eye on events.

“Hays County residents are at odds with their own commissioners court and agree (with us) that it’s a matter of conservation,” Curtis said. “This is a situation where one area can’t control its growth, so we have this backward policy on water.”

Harris said he and other Wimberley Valley Watershed Association members and Hays County residents, are “very concerned” by water-rights events there.“There are many of us in Hays County who are very concerned about the excessive pumping of the Trinity Aquifer and the damage its done to the watershed and to the area,” Harris said. “So we are very concerned and sympathetic to the Lost Pines Groundwater Conservation District and its aims to protect the watershed down there.”

Because of that and because of Prop 6 — a water funding amendment which would establish a state water implementation fund, if passed — being on the ballot Nov. 5, and with something like 90 percent of Texas residents living in areas considered urban rather than rural, Curtis said the issue is drawing much attention and any litigation that results will be watched closely, indeed.“There are big interests pushing the issue ever closer to the edge of the cliff,” she said.
12,000 acre-feet

In a hearing on Forestar’s water request, the LPGCD permitted the development group to take 12,000 acre-feet of water from the Bastrop and Lee county areas, ultimately coming from the Simsboro portion of the Carrizo-Wilcox Aquifer.

In the meantime, according to Steve Box of Environmental Stewardship, Hays County wants to establish an agreement to purchase water — the groundwater Forestar wants to pump from Bastrop and Lee counties — from Forestar. Environmental Stewardship’s mission statement says it is dedicated to protecting natural resources in the Lost Pines region.

The Hays County Commissioners Court has a Sept. 30 deadline set for a contract to be signed, Box said. “It’s a specific action we know is taking place,” Box said. “We know Hays County has been in cahoots with Forestar on this.”

The issue then becomes, Box said, whether the growth of the urban and suburban areas of Texas outweigh the interests of nearby rural areas. It is also, he said, a matter of whether Bastrop County “has a seat at the table” on the issue and of whether, in a time of historic drought across the state, the growth currently underway throughout Central Texas can be sustained.

In the meantime, he noted, Forestar has asked LPGCD for a rehearing on its petition to pump the full 45,000 acre-feet of water it has requested. The district has until mid-November, or 91 days from the time Forestar asked for a rehearing in mid-August, to decide whether to grant the rehearing.

If the board denies the rehearing or takes no action on whether to grant it, Forestar could then file a civil suit, probably in a Bastrop County district court, to get its full application request, Box said.
“We think that if Hays County has a contract for more than the 12,000 acre-feet, then they’re trying to set up a hostile action against Bastrop County,” Box said.

It comes down to what amount of growth — especially along the I-35 corridor — is sustainable and how much water can be reasonably pumped from the aquifer without harming the future water needs of Bastrop and Lee counties, he said.

To that end, Box and his group, sent a letter stating its position to Hays County Judge Bert Cobb, along with copies to Bastrop County Judge Paul Pape and Lee County Judge Paul Fisher, as well as to Joe Cooper, general manager of LPGCD and to Mike Talbot, president of the board of LPGCD.

No harm
Pape, for his part, noted the Bastrop County Commissioners Court issued a resolution in support of the LPGCD, stating its “belief that prudent planning for groundwater is based upon sound science and that sound groundwater management practices must be utilized in order to maintain the availability of water for future generations and assure sustainability of the aquifer.”

Pape noted he understands LPGCD has always been conservative in granting groundwater pumping requests and that he stands by LPGCD.

“I wouldn’t want to interfere with that or promote anything that would harm Bastrop County,” Pape said.
A spokeswoman for Forestar issued a statement regarding its position on the matter.

“Forestar was granted 10 well permits for withdrawal of up to 12,000 acre-feet annually,” the statement reads. “In response, Forestar is currently pursuing several alternatives available under the Texas Water Code to uphold the rights of both area land owners and Forestar. Central Texas faces a significant water crisis and Forestar remains committed to being a part of a responsible and economic water solution.”

Hays County Judge Bert Cobb did not respond to a request for an interview.