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SAWDF joins other groups in July 2016 written comments

to Board of Directors of Lost Pines Groundwater Conservation District regarding End Op, LP Application for Operating and Transport Permits for 46,000 ac-ft/yr of groundwater from Lee and Bastrop counties

Written by Michele G. Gangnes, Authorized Representative of SAWDF

  1. Simsboro Aquifer Water Defense Fund Inc., Neighbors for *Neighbors Inc. and League of Independent Voters of Texas collectively represent the interests of the intended “donors” of Carrizo-Wilcox Aquifer groundwater for export under the proposed permits and related documents for End Op LP. We submit these comments to adopt and amplify the comments and requests of Environmental Stewardship (as joined in by other individuals) as if such comments and requests were specifically included in this submission. Our constituent landowners own groundwater in place and have a right to conserve and protect their individual fair shares of the water resources associated with the commonly shared aquifers from which End Op seeks to pump 46,000 ac-ft/yr. Likewise, our constituents who are members of the general public are entitled to the protection, preservation and conservation of the aquifers on which they depend. 

Simsboro Aquifer Water Defense Fund (SAWDF) is a Central Texas nonprofit organization whose 501(c)(3) status is pending and whose purposes are to educate and assist citizens and landowners over the Carrizo-Wilcox Aquifer who want to protect, preserve and conserve groundwater and surface water for the benefit of future generations; to support environmentally sound and sustainable use, production and conservation of water; and to protect the legal, equitable and civil rights, and property values, of landowners who seek to conserve and protect their groundwater.

Neighbors for Neighbors (NFN) is a 501(c)(3) Central Texas nonprofit organization working for sustainability of natural resources, clean air and water, and holding those who exploit natural resources accountable.  Neighbors for Neighbors has supported the good work of the Lost Pines Groundwater Conservation District since it first advocated for the District’s formation.

League of Independent Voters of Texas (League) is a Texas 501(c)(4) social welfare, nonprofit organization whose purpose is to research, develop, advocate and educate citizens on legislative, regulatory and program reforms that address issues that cross political party lines, including protection of land, air and water. The League’s members helped author and worked for the passage of HB3163 in the 2015 legislative session.

The constituents of these organizations include the general public as well as landowners of property in Lee and Bastrop counties located over the recharge zones of the formations of the Carrizo-Wilcox Aquifer as well as over the down-dip portions of the aquifer.[1] They also include citizens and landowners who live adjacent to or near the Colorado River or who enjoy the benefits of the Colorado River.  We note the landholdings of the constituents of these three organizations in the two counties of the Lost Pines GCD are considerable.

B. The requests of SAWDF, NFN and the League to the District can be summarized with reference to the cover letter of the ES comments, together with observations by the three organizations as to the propriety of their requests on behalf of their constituents. In particular, we also draw the District’s attention to our further comments on Special Condition (13) on page 8 of these comments, which concerns matters not raised by the ES Comments.

“It is absolutely necessary and essential that the Board retain its right to consider this permit under Section 36.113(d) when better tools and information are available or unreasonable impacts become evident regarding the impact of End Op's pumping on groundwater, surface water and other permits.  (See ES recommendations 1 and 2). 

Under pressure from water marketers', Section 36.113(d) was amended in the 84th legislative session to take away the District’s right (and duty) to consider certain impacts of pumping upon renewal of this permit in five years’ time (See Section D. 1.).  The District, having failed to adequately consider the impact of pumping on surface water, groundwater, and other permits in the initial consideration of this permit, must include a Special Condition to retain its right to consider these impacts in future permit renewals (See ES Section C).  To do otherwise abdicates your duty and responsibility to protect the property rights of landowners like ES and others who want to conserve and preserve their groundwater in place for future use, non-commercial uses, sustainability and environmental considerations (See ES Section A). 

Groundwater Management Area 12 (GMA-12) has recognized and acknowledged deficiencies in the information and modeling tools available to the District and the GMA for evaluating the impacts of pumping on groundwater, surface water and other permits.  As such, the GMA has initiated GAM improvements that should be available during the next round of review related to desired future conditions. This future review should provide better data and information to inform this process. It is essential and necessary that the District be able to apply such new information in future renewals of this End Op permit, as well as other permits.”  (ES cover letter)

The Texas Supreme Court and Legislature have confirmed by decision and statute that 1) landowners own, as real property, the groundwater in place beneath their land[2], 2) the landowner is entitled to produce groundwater without causing waste or malicious drainage of other property or negligently causing subsidence[3], 3) that nothing in the statutes shall deprive or divest that ownership[4], and 4) that groundwater conservation districts are the State's preferred method of regulating groundwater[5].

The three organizations have a common interest in promoting the efforts of landowners to conserve and protect their ownership of groundwater in place, including without limitation, advocating for their right to participate as affected persons in contested case hearings related to groundwater permitting by groundwater conservation districts. In lieu of that opportunity in the case of End Op, but without conceding the point such landowners should be afforded the opportunity to challenge groundwater permit applications in a true contested case hearing[6], we appreciate this opportunity to comment to the District on the proposed End Op settlement.

Opening the proposed End Op settlement to public comment indicates that the District recognizes landowners’ right to so address the District as the state’s preferred regulator of the aquifers in which they have an ownership interest and on which their livelihoods and/or property values depend. The three organizations also take seriously this opportunity to advocate for the benefit of all citizens who are affected by the permitting decisions of the District, essentially the general populations of Lee and Bastrop counties who depend on groundwater. Allowing comment presupposes that the District will actually listen to and carefully consider the comments of its constituents.

As noted above, these comments are offered in support of and to amplify comments submitted by Environmental Stewardship, dated July 13, 2016 (ES Comments). In order to expedite the District’s review of our further comments, we respectfully incorporate by reference the ES Comments and will not attempt to duplicate them, or repeat citations in footnotes, unless absolutely necessary.

C. The proposed permit is premature because the District has not complied with its duty to conserve groundwater resources, to balance conservation and development in its actions, and to consider the impact of pumping on surface water, groundwater, and other permits as required by the Conservation Amendment to the Texas Constitution and the Texas Water Code.

As noted in the ES Comments, the Conservation Amendment to the Texas Constitution provides that the natural resources of the state, including water (both groundwater and surface water) are public rights and duties[7] to be preserved and conserved, and that development of those resources are to be balanced against their conservation[8].

State Senator Ogden stated what the Conservation Amendment requires a little more colorfully, but no less correctly, when he commented in 2001 about why he sponsored Post Oak Savannah Groundwater Conservation District’s enabling legislation at a time when most central Texas counties were organizing into groundwater districts. We believe the following articulates how we believe the vast majority of your constituents view your duty to them and why you must now take the steps urged in the ES cover letter and comments:

"The primary driving force of the groundwater conservation district was a concern that this was the only way we could possibly protect ourselves if someone wanted to come in and drill water wells in the Carrizo-Wilcox Aquifer, and transport large quantities of water to any place under the sun."

Beyond hoping you are listening to your constituents, we cannot emphasize enough our collective view that the Conservation Amendment to the Texas Constitution[9] demands that our groundwater districts defend and protect our aquifers as the public’s right and the district’s duty. Moreover, districts should promote, not foreclose, the public’s right to be heard on, and a landowner’s right to fully participate in, if he or she so chooses, the district’s permitting process[10].

The requirement to achieve balance between development and conservation is likewise affirmed by the Texas Legislature in the Texas Water Code, as is the requirement for groundwater districts to consider whether pumping of groundwater under the permits they issue or the desired future conditions they set, have unreasonable impacts on surface waters, groundwater and other permits. In the context of the balancing of development against conservation, it follows that “unreasonable impacts” means, at least, unreasonable negative implications for the conservation side of that equation.[11]

The standard definition of “consider” is to think carefully about something before making a decision. In order to demonstrate careful thought, it would seem a district must first make a quantitative analysis of the effects on groundwater, surface water and existing permits in order to then actually “consider” whether such effects are unreasonably negative --- essentially, a qualitative analysis of the negative impacts. 

We urge that the plain meaning of what is required is that a groundwater district, as the state’s regulator of groundwater, be actually engaged in promoting the public right and duty to have our natural resources preserved and protected. After all, the Conservation Amendment is the source of their regulatory authority --- the Legislature is commanded under the Conservation Amendment to “pass all such laws as are appropriate to so protect natural resources”, and the Legislature has in turn spoken through the Water Code and authorized groundwater districts to be the state’s preferred regulator of groundwater.

We cannot emphasize enough our view that groundwater conservation districts must actively regulate the production of groundwater, rather than being merely passive issuers of permits with the hope of being allowed, politically and practically, to put their foot down, figuratively speaking, after their decisions begin to harm our aquifers, possibly irreparably.

And we would also argue that reasonable regulation of groundwater by groundwater districts is a recognized exception to the rule of capture, making the grant of a lesser pumping permit than is requested, in circumstances where the district is exercising reasonable regulation, a per se reasonable impact on landowners’ rights to sell the groundwater they own. That is, it is the potential result --- not to be able to pump out and sell as much water as you would like --- of the state’s regime of using groundwater district regulation to protecting natural resources as described in the Conservation Amendment. Stated another way, construing a failure by a groundwater district to reasonably regulate pumping as a failure that violates the public trust is also a reasonable construction of the Conservation Amendment. 

The ES Comments articulate the analogies of groundwater to oil and gas as set out in the Day case, which we adopt without repeating here. In the oil and gas context, it is the Railroad Commission that serves as the expert to equitably balance the interests of different landowners.  In the groundwater context, it is the role of groundwater districts to serve as experts, resolving the conflict of interests between not only landowners who want to produce the groundwater they own “to the limit” versus other landowners who wish to keep their groundwater in the ground, but also non-commercial uses, sustainability, and environmental considerations.  

Accordingly, it is the duty of the Lost Pines District to protect the property rights of landowners like ES and others who want to conserve and preserve their groundwater in place for future use, non-commercial uses, sustainability, and environmental considerations.

As described in detail in the ES Comments starting on page 4, the District’s efforts to “consider” whether impacts of the pumping permits unreasonably impact ground and surface water, and other permits fall very short of the mark. Therefore this permit is premature because the District has not yet complied with the Texas Water Code that is designed to protect surface features and shallow wells, and to guide permit decisions.

Just one example from the ES Comments adequately illustrates this deficiency, although the ES Comments give more exhaustive detail. In reporting to the Board on the three factors that must be “considered” by the District, the District’s hydrologist stated:

"it is not unreasonable to expect that pumpage from the End Op project would result in additional drawdown of hundreds of feet over 50 years in the two existing Aqua permitted wells""it is not unreasonable to expect that pumpage from the End Op project would result in additional drawdown of between 100 and 200 feet in the existing Elgin wells"; and of the Manville wells, "We might expect that these wells may see additional drawdown over 50 years of 100 to 200 feet".  

As noted by ES, no consideration is given to other known registered Simsboro wells, and no consideration is given to known registered wells in the Carrizo, Calvert Bluff, or Hooper aquifers.  Donnelly’s ambiguous sentence construction raises the question of whether he is simply stating that a quantitative analysis of impacts on wells is difficult because of uncertainties with the GAM, and therefore his estimate of drawdowns is not an unreasonable estimate, or whether he is actually implying a further qualitative conclusion that the injury or damage resulting from the drawdowns are not unreasonable to suffer. If the latter, his statement provides absolutely no context or justification for such a conclusion, and does not suffice as being the sort of consideration called for under the Water Code. 

Donnelly’s assessment of impacts on surface water is even more egregious, as described in the ES Comments. We urge that the District cannot let these pronouncements stand as a basis for granting a permit that complies with the Water Code. We recommend that the District fully consider the information in the George Rice reports submitted by ES as far more persuasive than any of the additional examples given of the work by the District’s hydrologists in assisting the District with its review of unreasonable impacts on groundwater, surface water and other permits.

D. The proposed permit is inadequate because 1) it does not contain Special Conditions that allow future adjustments to the permit based on the impacts mentioned above as better information become available, 2) it does not provide for the mitigation fund to include wells in aquifers other than the Simsboro aquifer, and 3) the draft Operating Permit ignores groundwater availability modeling (GAM) predictions.  See ES Comments.

E. The proposed permit jeopardizes the Desired Future Conditions (DFCs) for the aquifers, the District, adjacent Districts, and the region. See ES Comments.

F. The proposed permit is based on the ALJ's Proposal for Decision that resulted from self-serving and unexamined testimony allowed into the record in a sham (uncontested) Contested Case Hearing that was allowed over the General Manager’s protests, and despite settlement between the parties (End Op and Aqua). See ES Comments.

G. CONCLUSIONS/RECOMENDATIONS: Though we would urge the Board to table or deny this permit based on the shortcomings discussed herein and below in our comment to Special Condition (13), should the permit be approved, we urge that the following be included:

WHEREAS

  1. The District has not fulfilled its duty to, prior to permitting, consider the impacts of the requested pumping on the Colorado River and its tributaries.
  2. The District has not fulfilled its duty to, prior to permitting, consider the impacts of the requested pumping on the other groundwater aquifers that hydrologically communicate with the Simsboro Aquifer from which the pumping is requested.  Specifically, the impact on the Colorado River Alluvium, Carrizo, Calvert Bluff, and Hooper aquifers. 
  3. The District has not fulfilled its duty to, prior to permitting, consider the impacts of the requested pumping on other permits (except Aqua Water Supply Corporation, City of Elgin and Manville Water Supply Corporation) including registered domestic wells in hydrologically communicating aquifers referenced above. 
  4. The Contested Case Hearing[12] was not, in fact, a contested hearing.  Based on the settlement agreement reached between the parties to the hearing, Aqua WSC did not challenge or cross-examine evidence or expert witnesses at the initial hearing or the remand hearing.  The General Manager called this matter to the attention of the ALJ and requested that the hearing be cancelled, but the request was denied. 
  5. The ALJ’s order containing the recommendation that End Op, LP be granted a 46,000 ac-ft. per year operating and transport permit was based on erroneous evidence allowed through a sham hearing that was not cross examined.
  6. The District’s inclusion of questionable mitigation for a select few landowners is an ill-considered District foray into the realm of fashioning “remedies” without due process of law.

THEREFORE, SAWDF, NFN and the League Request/Recommend the following to remedy the inadequacies in the permit:

  1. It is necessary and essential to include a Special Condition to reserve the right to consider Section 36.113(d) when better information regarding the impact on groundwater, surface water and other permits becomes available or unreasonable impacts become evident.
  2. The Operating Permit should contain a condition that, once the GMA-12 GAM improvements are completed, the District, working with GMA-12, will conduct studies to predict and consider:
    1. The impact of the permitted pumping on surface waters;
    2. The impact of the permitted pumping on hydrologically connected aquifers;
    3. The impact of the permitted pumping on domestic wells in hydrologically connected aquifers; and
    4. The impact of the permitted pumping on currently adopted DFCs. 
    5. Changes that may be made to the terms and conditions of the Operating Permit.
  3. While we urge the ES Comment on Special Condition (13) is a sine qua non addition to SC (13) if the District persists in its folly of including mitigation in this permit, SC (13) and all references to it should be omitted from any permit. The District cannot with a straight face condone the specific provisions of this so-called mitigation “fund”. But even more reprehensible and insulting to its constituents is the fact the District is actually intending to cooperate in, and formally assist a mitigation component in a groundwater permit that purports to adjust the due process rights of certain select landowners (as the fund’s intended “beneficiaries”) as well as all other landowners-- essentially fashioning a “remedy” for the loss of any landowner’s constitutionally protected rights --- while landowners were foreclosed from participating in any element of the sham “contested” hearing from which such mitigation resulted. Further, we need not tell you because it should be obvious that landowners without expensive lawyers and experts will not get beyond “square one” in seeking mitigation under these terms. This is wrong on every level, invites litigation that will involve the District, and should not be included in this permit at all.
  1. Special Condition (4) calculations should be revised to include a factor that considers future changes in the “rate of change” that are predicted by the groundwater model.
  1. The monitoring well agreement should contain a requirement that groundwater-surface water monitoring wells be included in order to provide real-time data on the impact of pumping on the Colorado River and its tributaries. 

Respectfully submitted,

SIMSBORO AQUIFER WATER DEFENSE FUND INC.

NEIGHBORS FOR NEIGHBORS INC.

LEAGUE OF INDEPENDENT VOTERS OF TEXAS

c/o Michele G. Gangnes

      512-461-3179

cc:  Sen. Lois Kolkhorst

       Sen. Kirk Watson

       Rep. John Cyrier

       Judge Paul Fischer, Lee County

       Judge Paul Pape, Bastrop County

       Steve Box, Environmental Stewardship

[1] The three organizations have not sought standing, but constituents of one or more of the three organizations are seeking to participate as an affected person in the contested case hearing requested by Aqua Water Supply Corporation in relation to the End Op, LP application for operating and transport permits to pump and transport 56,000 ac-ft of groundwater per year from the Simsboro Aquifer in Bastrop and Lee counties

[2] Section 36.002 (a) of the State Water Code.

[3] Section 36.002 (b) of the State Water Code.

[4] Section 36.002 (c) of the State Water Code.

[5] Section 36.0015 of the Texas Water Code.

[6] That is, unlike the free pass we believe End Op received in error from an administrative law judge in the uncontested case hearing that resulted when End Op and Aqua, colluded ---with the assistance of the District’s counsel -- to not only allow End Op free rein to develop an unchallenged record, but also to attempt to fashion a “remedy” for all those whose due process rights were foreclosed, in the form of a totally inadequate “mitigation fund” for a favored few landowners. 

[7] Conservation Amendment of the Texas Constitution:  Section 59, CONSERVATION AND DEVELOPMENT OF NATURAL RESOURCES AND PARKS AND RECREATIONAL FACILITIES;  CONSERVATION AND RECLAMATION DISTRICTS:  (a) The conservation and development of all of the natural resources of this State, … And the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.”

[8] Presumably, “conservation” in this context means “preserved from loss, waste or injury”

[9] The Conservation Amendment is more fully described below and in the ES Comments.

[10] The landowners and citizens that we include as constituents respectfully request that the District reconsider its decision to uphold the administrative law judge’s denial of party status to the four landowners who requested standing in the End Op matter.

[11] We do not argue that the requirement to consider unreasonable impacts precludes consideration of some impacts on development, since the requirements speaks to impacts on “other permits” rather than just ground and surface water.

[12] End OP, LP and Aqua Water Supply Corporation contested case hearing, February 11, 2014.

The Fire Marshall restrained another crowd from entering and held them outside Giddings City Hall in the rain because too many had gathered to protest the End Op Permit Application at yet another Lost Pines GCD hearing.

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