Bastrop landowner stands out at LCRA hearing
Lost Pines GM and LCRA support big permit
The Times and News has been reporting on the recent six-day hearing about the Lower Colorado River Authority’s pending groundwater permit in the Lost Pines district.
Public water suppliers and a private water marketer joined with the Bastrop-based conservation group, Environmental Stewardship and private well owners to challenge the district general manager’s proposed “laddered” permit.
The permit would allow incremental increases in groundwater pumping by LCRA over a several year period, potentially reaching a maximum eight billion gallons a year.
Arguments against the permit ranged from LCRA’s failure to prove their right to that much water to the unreasonable impacts the pumping will have on other groundwater users and the Colorado River.
GM defends his recommended permit
General Manager Jim Totten and the district’s expert witness defended the district’s methodology in drafting permits for incremental production over a several year period in the case of large commercial permits. Laddered permits have been issued to Forestar Real Estate Group and Recharge Water, formerly known as End Op.
Totten and Dr. William Hutchison testified the permits are designed to assure specified district-wide drawdowns, called “desired future conditions” (DFC) of the aquifer, will not result before 2070.
Other parties criticized the district’s reliance on groundwater availability modeling and regional predictions as too imprecise to predict the localized harm LCRA’s pumping may cause.
The district’s “wait and see” argument that pumping is the only way to get localized data, was parried by the protestants’ concerns they would have no say in the future and that the district’s approach might not prevent irreversible harm.
LCRA demands permit, denies causing damage
LCRA asserted its entitlement to the full benefit of its investment in Bastrop County “water rights”, arguing it has followed all district rules, and should not subjected to the future “unknown requirements” of a laddered permit.
The newest “groundwater availability” computer modeling used by Lost Pines makes clear pumping one aquifer formation may affect other formations in the Carrizo-Wilcox Aquifer. Especially in the case of the Calvert Bluff and Hooper formations, heavy pumping in the Simsboro will induce leakage from and contribute to drawdowns in both formations.
Most domestic wells in the district are drilled in the Calvert Bluff, with fewer wells in the Simsboro and Hooper formations. Environmental Stewardship argued that same heavy pumping will reverse the natural augmentation of flow in the Colorado River system currently provided by the Simsboro.
“Brown Landowners” aligned for efficiency
About thirty Bastrop and Lee County landowner parties are represented by the same attorneys and experts. Dubbed by the judges as the “Brown Landowners” because of Lee County Simsboro well owner Hugh Brown’s alphabetical priority, the group was aligned for efficiency.
Local and regional donors, and the Simsboro Aquifer Water Defense Fund have supported the Brown Landowners since February 2018.
Bastrop landowners Elvis and Roxanne Hernandez, who depend on a Calvert Bluff well, elected to represent themselves.
All parties were required to file their written testimony prior to the hearing, but aligned landowners were not required to submit to live cross-examination as long as they did not testify at the hearing.
One Brown Landowner testifies at hearing
On day four of the hearing, Circle D resident Andy Wier took the stand for all Brown Landowners. According to their attorneys, Wier was selected to put a human face on local concerns about LCRA’s plans.
Wier and his spouse Mary live very close to the proposed well-field and rely on a Simsboro well for their water supply. The Wiers are currently employed at the State School for the Blind but are known in the Giddings community where Andy was previously employed at the Giddings State School.
Those who know him predicted Wier would be both disarming and articulate on the stand. He did not disappoint his supporters and literally took over the hearing during his cross-examination by the City of Elgin.
Other parties might not have wanted the judges to give much credence to the landowners’ case, but Wier seized the opportunity to present a passionate and seemingly well-documented soliloquy without a single objection.
Wier made clear he had instant recall of hundreds of pages of testimony and documents revealed by LCRA and other parties in the “discovery” phase of the case. He interwove his command of that evidence with an emotional personal perspective of what he characterized as behavior that could “kill an aquifer”.
He even partially excused LCRA Executive Vice President of Water, John Hofmann, as the victim of his underlings’ failure to fully inform him about issues with the project. Wier then put Hofmann back on the hook for personally negotiating in questionable faith with the Circle D Home Owners’ Association earlier this year.
He ended with an impassioned plea for LCRA to be a good neighbor and collaborate with those seeking to protect aquifers and rivers.
Because the judges and audience seemed totally caught up in what he had to say, it was as if the litigators sensed there was no opening to interrupt him without irritating the judges.
As a result, he was allowed to say many things all local landowners hope will have great impact on the judges’ future recommendations of the facts and legal principles the district’s board should use to make a decision on the permit.
As soon as Wier stepped off the stand, the SOAH judges asked the other parties if they had considered stopping the hearing to engage in mediation to reach a negotiated settlement of their disputes. Encouragement to consider mediation usually comes before or at the end of a SOAH hearing, if at all.
It seemed obvious Wier had managed to summarize all of the opponents’ arguments that something was amiss with the permit request. Observers took the judges’ spontaneous offer of mediation as a potential signal that LCRA’s right to its permit might not be so clear.
Although all parties indicated a willingness to consider mediation, LCRA made it clear the utility wanted to finish the hearing.
Public will have another chance to comment
After a series of briefs by the parties, the judges will make its recommendations to the district. At the judge’s request, all parties will also submit their versions of the legal framework for a groundwater district’s regulatory authority.
Some of the testimony revolved around how the Lost Pines district applies its policies and uses its discretion, and whether the district properly and consistently applies Texas water law and its own rules.
The public had one opportunity to comment to the board on the permit in 2018. A second public hearing next year will give them another opportunity to comment before the board makes its final decision.