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LCRA Permit Update ~~ Next Steps

 

 

 

 

 

The "Contested Case Process ~~ To Protest or Not to Protest (with apologies to Shakespeare)" ~~ Community Meetings, September 13, 2018 ~~ Come talk to us at Bastrop American Legion, 4:30 or 7 p.m

Every mega-permit is an opportunity we can't pass up. You can say "this is too much water" in different ways, but they all help - come talk to us on September 13 and plan to attend the September 26 Lost Pines hearing --- you can make a difference.

Below is a sample form, based on Lost Pines District FAQ's and Rules, to request contested case/party status re Lower Colorado River Authority pending permit application, Permit # 58-55-4 -- download this form at:

https://www.friendsofbastropwater.com/form-to-contest-the-permit

FILING DEADLINE: September 21, 2018, no exceptions!

REQUEST FOR CONTESTED CASE

File with Lost Pines Groundwater Conservation District by mail, hand delivery, email or fax, to be delivered no later than close of business, 5 calendar days prior to public hearing date as announced by District – no exceptions, file early! The District will set another hearing on your eligibility or your organization’s qualifications to file this Request*. See lpgcd@lostpineswater.org for FAQs and copy of District Rules. See bottom of form for sections marked with *.

Lost Pines Groundwater Conservation District

Attn: General Manager

P. O. Box 1027

908 Loop 230

Smithville, TX 78957

PHONE: 512-361-5088

FAX: 512-361-5488

E-mail: lpgcd@lostpineswater.org

Call the District prior to sending fax or email, and request confirmation of receipt. Assume business hours end at 5 p.m. – if your fax or email submission may arrive after 5 p.m., leave VM and call next day to confirm. Make sure mailed or hand delivered request arrives 5 days prior to hearing.

I HEREBY REQUEST A CONTESTED CASE* (INCLUDING PARTY STATUS IN ANY CONTESTED CASE HEARING HELD BY THE DISTRICT) ON LOWER COLORADO RIVER AUTHORITY PERMIT APPLICATION; PERMIT #58-55-4.

*My name is ________________________________________________

My address is ______________________________________________

______________________________________________

The location of my home, business or property that will be impacted by the proposed permit is ______________________________________________

______________________________________________________________

[If applicable*] I am requesting a contested case and party status on behalf of [include Name of Group or Organization]: ______________________________________________________________

[If requesting for group/organization, as applicable*] The following individuals have standing to request a contested case [include name/address for members who can establish individual standing*– attach additional page if necessary]: ____________________________________________________________________________________________________________________________

*By law, any person who requests a contested case must demonstrate “standing” related to a “justiciable interest” --- a personal justiciable interest that is related to a legal right, duty, privilege, power, or economic interest that is within the District's regulatory authority and that is affected by the Board’s action on the Application, not including persons who have an interest common to members of the public. Usually, an organization’s standing is established through its members’ individual standing, as long as protecting the members’ interests are germane to the organization’s purposes. It is possible that an organization is itself able to establish standing, for example if it is itself a landowner whose interests are affected by the permit. The person who fills out this form for an organization should be authorized to receive official communications.

Consult the District with any questions.

THE CONTENTS OF THIS FORM WERE NOT PREPARED BY LOST PINES GCD OR INTENDED AS LEGAL ADVICE.

YOU ARE ADVISED TO CONSULT AN ATTORNEY.

 

End of Form

Here's a helpful outline of the permitting process:

UPDATED SUMMARY OF PERMITTING AND PERMIT CHALLENGES

AT LOST PINES GROUNDWATER CONSERVATION DISTRICT

(Not intended as legal advice)

SEE Lost Pines’ District Rules (PDF) and FAQs

for information and copies of the Permit Application

Contact the District at: Phone: 512-360-5088 FAX: 512-360-5448 Email: lpgcd@lostpineswater.org

Permit Application Process for LCRA

  • Applicant (LCRA) files application; LCRA filed February 21, 2018.
  • Lost Pines GCD has declared the application “administratively complete” (“AC”) by District GM.
  • District has set PUBLIC HEARING on the permit for September 26, 2018.
  • 20 DAYS PRIOR to hearing, DISTRICT gave public notice, plus mailed, faxed or e-mailed notice to any person who requests advance notice of any Lost Pines hearing*, and LCRA has notified landowners/owners of water rights/registered and permitted well owners [only] within 5,000 feet of well field by certified mail. *
  • LCRA has published newspaper notice (one paper each county) 20 days prior to hearing.
  • *Anyone may ensure receiving notice of these kinds of hearings from the District  by sending, faxing or emailing written request now to the District and renewing your request every January.

How to Challenge the LCRA Permit

  • INFORMAL CHALLENGE at the Public Hearing: You must sign up at the door of the public hearing (“register”) to deliver comments and/or evidence --- no other advance permission or notice is required. (District has the right to put you under oath, but generally does not.).
  • You will have 3 minutes to speak, but others can donate time (up to a maximum set by the District) to a group spokesperson by asking to do so on their registration forms, naming you as the recipient of their time.
  • If District, Applicant or any other person or group does not formally object to the permit (i.e. no contested case is requested – see below), the District may act on the permit at the hearing or may continue the hearing to another date and place.
  •  Be prepared to attend the public hearing even if someone is challenging the permit; the District will still hear public comments even if another hearing has to be scheduled (see below).
  • FORMAL CHALLENGE to the Permit ---Permit can be challenged by LCRA, by the District's General M, if the District Board agrees, or other persons.
  • Individuals or groups/organizations must file a written “Request for Contested Case”, in advance of the public hearing to challenge the permit, no exceptions. SEE SAWDF form above that you can use.
  • By law, any person who requests a contested case must be able to demonstrate a personal justiciable interest that is related to a legal right, duty, privilege, power, or economic interest that is within the District's regulatory authority and that is affected by the Board’s action on the Application, not including persons who have an interest common to members of the publicThis is a complicated standard!  The District will schedule another hearing to determine standing for all those individuals and organizations who must establish their standing to challenge the permit. If you have requested a contested case, you are urged to be advised by an attorney on how to proceed.
  • At the preliminary hearing on Requests for Contested Case filed by anyone other than the GM or Applicant, the District or a state administrative law judge will determine both eligibility (“standing”) of individuals or individual members of organizations and whether they have raised a “justiciable” issue and meet the rest of the tests for "standing" described above.

1. What is a Contested Case Hearing?

A contested case hearing is a formal legal proceeding similar to a District court hearing. Parties involved in a contested case hearing will be able to submit evidence and present testimony of expert witness for evaluation by the hearing examiner.

2. Who conducts a Contested Case Hearing?

A contested case hearing can be conducted either by the Board of Directors of the Lost Pines Groundwater Conservation District or by a hearing examiner appointed by the Board. Additionally, any party in a contested case may request that the hearing be conducted by an administrative law judge from the State Office of Administrative Hearings (SOAH). In the event of a contested case hearing conducted at SOAH the party or parties that requested SOAH will be responsible for paying the costs associated with the hearing.

3. Do I need an attorney to participate in a Contested Case Hearing?

Contested case hearings are legal proceedings so parties to the hearing may want to retain legal representation to ensure their interests are represented but legal representation is not required for participation.

4. How do I request a Contested Case Hearing?

To request a contested case hearing on a permit you must submit a written request to the District at least five days prior to the scheduled hearing. The written request must include:

1) Your name and address

2) The permit number and applicants name

3) A statement clearly requesting a contested case hearing

4) The location of your home, business or property that will be impacted by the proposed permit

If the request is being made on behalf of a group or organization then the request must identify one or more members of the group who have standing to request a contested case.

5. Is this legal advice?

No.

[End of District FAQs.]

____________________________________________

  • Remember!  Unless their water rights have been sold or otherwise severed from their property, landowners own the groundwater in place under their land as real property.  SAWDF believes --- and local Bastrop State District Court Judge Carson Campbell agreed in January 2018 --- that landowners should be able to formally challenge a permit (have “standing” to present a “justiciable issue”) if pumping under that permit will impact the groundwater you own, whether or not you have a well or are pumping water from any formation of the Carrizo-Wilcox Aquifer.
  • Any landowner should be concerned about these mega-permits, including those who are concerned about their existing domestic wells; about later accessing the water under them even if they have no well currently; and/or who want to keep their water in place for conservation purposes.
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