Ruling ‘bad news’ for Bastrop and Lee county landowners

Judge denied landowners party status in contested case

By Erin Green

Austin Community Newspapers Staff

Landowners in Bastrop and Lee counties plan to appeal a decision denying them the right to party status in a contested water case.

The decision against a group of four landowners — including Environmental Stewardship — was issued Sept. 25 in the contested case involving water marketing company End Op’s application for well registration, operating permits and transfer permits in the State Office of Administrative Hearings.

The landowners had petitioned the Lost Pines Groundwater Conservation District for party status — or legal standing and the right to legally participate — in a disputed groundwater pumping permit hearing involving End Op, Aqua Water Supply Corp. and the LPGCD, which asked the SOAH to rule on the request.

According to Environmental Stewardship’s Steve Box, the decision has broad implications throughout Texas for landowners wanting to protect the groundwater in place under their land.

In a news release about the decision, Box noted the Texas Supreme Court affirmed the ownership of groundwater in place as real property and that this decision by the SOAH upholds the rule of capture, saying basically whoever gets the resource first owns it.

“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,” he said in the release.

According to Box, the question the landowners are posing to the LPGCD board in the appeal is whether ownership of real property above and within an aquifer, where the groundwater drawdown will occur as a 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? And, Box added, can a landowner defend that against those who wish to pump away the property?

Box said Environmental Stewardship is currently helping work on legal arguments and finding and preparing expert witnesses to take before the LPGCD and the administrative law judge.