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Lost Pines GCD grants City of Bastrop permit, rejects landowner protest

Gangnes delivers letter to District asking for due process review of permitting process for benefit of all landowners

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Go to “Concerned Landowner Letter to Lost Pines GCD" under the "NEWS" tab for Lee County landowner Michele Gangnes's letter.

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At a special called meeting on October 12, 2016, the Lost Pines Groundwater Conservation District responded to a state administrative law judge's (ALJ) Proposal for Decision in a contested case hearing between the City of Bastrop and several Bastrop County landowners. The contested case resulted from Bastrop's application for an operating permit for one production well on the XS Ranch development in Bastrop's extra-territorial jurisdiction. The well is intended to deliver 2,000 acre-feet per year of Simsboro Aquifer water for local use.

The District granted Bastrop's permit as recommended by the ALJ, over the objections of landowners adjacent to or near the proposed well.The landowner protest began early in the application process when the McCall Ranch, which is surrounded on three sides by the XS development, asked the District to address its hydrological and procedural concerns with the proposed permit. Additional landowners in the area joined the protest.

Lynn Sherman, counsel for McCall Ranch and other landowners who challenged the permit, appeared on October 12 to argue that issues with the permit needed to be addressed before the permit was considered by the Lost Pines Board. Lost Pines District counsel David Lein, and the City of Bastrop's counsel Paul Terrill both argued that no viable procedural or due process issues were deserving of further consideration, having been resolved in the contested case.

After an executive session for the Board to meet with its counsel Greg Ellis, the Board voted unanimously 8-0 to adopt the ALJ's Proposal for Decision and grant the permit. (Retiring Board member Alice Darnell, Lee County, was absent, as was Board President Mike Talbot, who would have recused himself anyway, since he was formerly employed as the Bastrop City Manager.)

One of the special conditions the Board attached to the permit concerned some of the issues raised by landowners. The Board essentially adopted the ALJ's approach to resolving two issues. One issue was the fact that, while District rules would have required a test well be drilled and subjected to a 36-hour pump test before the permit application was deemed complete enough for the District's Board to act on the application, or "administratively complete", the City's test well had in fact collapsed prior to the test being conducted and no test has ever been done. The District had, in effect, decided to waive the pump test until after the new well was drilled and the permit granted.

That issue played into the District’s solution for the second issue, concerning whether the District had properly processed the need for Bastrop to obtain a variance if other wells are located within 5,000 feet of the Bastrop well. Landowners’ objected to the fact no actual notice of the need for a variance was ever published prior to the contested case hearing and prior to the Board’s consideration of the permit. Bastrop and the District’s counsel, in effect, argued no other wells within that distance had come to light until just prior to the contested case hearing, and that the question of a variance, like the 36-hour pump test, could be handled after the permit was approved, in the way proposed by the ALJ. The fact some landowners in the area have never registered their wells with the District was cited as a major cause of the confusion and delay in identifying affected wells.

The purpose of requiring a proposed well to obtain a variance is rooted in assuring no unreasonable interference with nearby wells if pumping of 1,500 gallons per minute, as is proposed by Bastrop, is allowed. The Board adopted the ALJ’s recommendation that wells within 5,000 feet be allowed to have their wells monitored by Bastrop, in real time, for effects on those wells when the 36-hour pump test is conducted. The District’s general manager would then require modifications in the rate of production of the Bastrop well if he determines the pump test data shows unreasonable interference. Either the City or any monitored landowner would be able to appeal the general manager’s decision.

It is expected that the City of Bastrop will publish notice in the local newspapers for landowners with wells within 5,000 feet of Bastrop’s proposed well, to come forward if they want to be monitored during the pump test. If you think you may be affected, watch for this published notice or call the District at 512-360-5088.

SAWDF NOTE: It has become clear to those of us who have followed the groundwater District’s proceedings for the last fifteen years that, on balance, the reasons why any landowner in Lee or Bastrop counties would decide to register the existence of their well(s) with the District far outweigh any concerns that registration is an unwarranted governmental intrusion into private property matters. The Bastrop well proceeding points out one critical reason: so you will be in a position to have notice from the District of matters that will affect you, and that will allow you to get involved before it is too late to defend your interests – if they don’t know you’re out there, chances are you might not have a meaningful opportunity to protect your interests.

We urge any landowner with an unregistered well to get in touch with the District’s General Manager, Jim Totten, at lpgcd@lostpineswater.org or 512-360-5088 for more information.

Here is what the District says on its website, www.lostpineswater.org about recording wells with the District:

Well Watch Program:

One of the District's most important programs, the Well Watch Program allows well owners to have their wells recorded with the district. At the well owner's request, District staff will personally visit a well to determine its exact location and measure its water level. Measurements gathered through the Well Watch Program enable the District to monitor changes , detect declines in the aquifer, and take action as needed to protect our aquifer from over pumping.

It's easy, it's free, and it's fast (it takes about 20 minutes). If you own a well in Bastrop or Lee Counties, please contact the District to get your well recorded. It's something every well owner can do to protect our groundwater.

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