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One landowner's perspective on a landmark water decision

Bastrop Advertiser, Commentary, January 13, 2018

by SAWDF board member, Michele Gangnes

An unlikely partnership began 18 years ago. Efforts to export Lee and Bastrop counties’ groundwater, especially from the Simsboro aquifer, began in earnest and bound us together. Our Lost Pines Groundwater Conservation District was formed with the hope of avoiding exploitation of local aquifers and communities.

Local opposition was fierce when the Alcoa/SAWS mega-water supply contract was announced on New Year’s Eve, 1998. Their project for almost 18 billion gallons of Simsboro water per year (18B gal/yr) was the catalyst for forming Lost Pines.

The project was abandoned a few years later, but it started us all thinking about what it means to “dewater” or “mine” our aquifers and take the water somewhere else, never to return.

In a landmark decision (here), our local 21st Judicial District Judge Carson Campbell (Bastrop, Lee, Burleson and Washington counties) acted last week to protect landowner private property rights in groundwater permitting.

We hope Lost Pines will breathe his fresh air and not appeal his ruling. After all, the District is charged with protecting private property rights in a high stakes game.

Since 1999, mega-permits to export water from Lee, Bastrop, Burleson and Milam counties have grown to over 62B gal/yr (189,500 acre-feet/yr). Alcoa is marketing 18.9B gal/yr of permitted and unpermitted water rights, and SAWS says it controls another unpermitted 4.9B gal/yr locally.

California, here we come!

Only a fraction of that 62B gal/yr is being pumped, although the Vista Ridge/SAWS project near the Burleson/Lee County line plans to start exporting 16B gal/yr in 2020. The rest needs customers.

Judge Campbell agreed with four local landowners that Lost Pines mistakenly excluded them from protesting a permit requested by water marketer Recharge (formerly, End Op) in a 2014 “contested case hearing”.

He also revoked Recharge’s 2016 permit, pending a return to the contested hearing with those four as parties --- three individuals and Environmental Stewardship, an organization dedicated to protecting the Colorado River from groundwater over-pumping. The permit allowed the export of up to 15B gal/yr from 14 Simsboro wells in Lee and Bastrop counties.

 

The actual scope of the ruling remains to be seen. It at least confirms landowners should have a “seat at the table”, rather than three minutes of meaningless public comment in Lost Pines permit hearings.

The four landowners were excluded largely because they were not pumping water from the Simsboro and had no plans to do so. But the Texas Water Code confirms landowners own the groundwater underneath them as real property, and may not be divested of their ownership and rights under the Code.

I read that to say I don’t have to pump groundwater or sell water to own it in place, and nothing prevents me from being a steward of the aquifer and future generations by keeping it in place. And I should have a say when others want to pump “my” groundwater. I believe Judge Campbell would welcome me to the table.

Texas law also says our groundwater district, as the state's preferred method of groundwater management, is charged with protecting property rights, using the best available science in the conservation and development of groundwater, balancing conservation and development of groundwater to meet the state's needs, and complying with the Water Code.

I believe world history teaches us we had better concentrate on the “conserve and protect” side of that balance. Sustainability of our aquifer, and the rivers and streams that rely on aquifers, is the only goal that will also sustain our state’s land, communities and economies.

 

On its website, Lost Pines proclaims its “sole mission” is to protect the water supply for the residents of Bastrop and Lee counties. It says water districts are the “only tool available to protect our groundwater supply” from over pumping, and to assure enough water for everyone, now and in the future. I see nothing in state law that negates those statements nor the public trust they imply. The proof of that public trust is in the pudding, to paraphrase my grandmother.

 

How will Lost Pines go forward from here? For starters, I am not the only landowner who hopes our ten good and true neighbors on the Board will re-read their own mission statement before meeting on January 17. That’s when they will go behind closed doors, after hearing the public’s “three minutes”, to decide whether to appeal the Judge’s decision.

 

They must decide how best to be “the tool that protects our groundwater supply”.  

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