Vista Ridge Revisited --- "We can't make enough money if we don't get more water..."

Audience at Post Oak Savannah Groundwater Conservation District at Vista Ridge permit hearing on October 3. The hearing resumes on February 13 at 5:30 p.m. at the District's Milano headquarters.

Vista Ridge seeks more water from Simsboro

The Post Oak Savannah Groundwater Conservation District will hold a specially-called public hearing on February 13 at 5:30 p.m. at its offices at 310 West Avenue C in Milano. The hearing is a continuation of a hearing the District started last October 3 on several proposed amendments to the so-called “Vista Ridge” permits, including increased pumping in the Simsboro.

The Vista Ridge permits are held by Blue Water Vista Ridge LLP, the private partners in a public-private partnership which includes the San Antonio Water System (SAWS) as the public partner.

Vista Ridge is currently permitted to pump and export 50,993 acre-feet per year (AFY), or about 16.6 billion gallons (16.6 BGY), of Burleson County groundwater.

At least 50,000 AFY of that water will be sold to San Antonio via a 140-mile pipeline that is now operational.

The groundwater under the current permit will be pumped from two aquifers, with 37,500 AFY coming from the Simsboro and the remainder from the Carrizo.

Blue Water Vista Ridge’s requested amendments, among other changes, seeks an extra 4,842 AFY (1.58 BGY) from the Simsboro in Burleson County.

Pipeline being tested

According to recent San Antonio news accounts, testing of the pipeline has commenced with deliveries of water to the city being discharged by SAWS to a local creek during the testing.

Once official deliveries begin, the San Antonio Water System (SAWS) reportedly expects to use the full 50,000 AFY in its supply system. Critics of the 30-year supply contract fear the very expensive water will unduly burden ratepayers.

Draws critical audience

The Post Oak District headquarters was filled at the October hearing by landowners and others who uniformly spoke against the proposed amendments, primarily the pumping increase. Lee County Judge Paul Fischer spoke to the Board about the need to protect our mutual groundwater resources.

Prior to the hearing, Burleson County landowner Sidney Zgabay filed a formal protest and requested a contested case hearing. Zgabay cited concerns the well his family depends on will be damaged from increased pumping.

Zgabay later dismissed his protest due to personal and family reasons in advance of a State Office of Administrative Hearings decision on whether his protest would be allowed.

Another formal protest was filed by Dr. Curtis Chubb, a Milam County rancher and retired professor. Dr. Chubb often publishes articles and reports about the need to protect aquifers in the Post Oak District.

Chubb dismissed his own protest at the October 3 hearing, after expressing public frustration with the operations of the District.

Increased permit

A detailed letter protesting the permit for increased pumping in the Simsboro was reportedly delivered to District board members last Friday. Post Oak Board President Sidney Youngblood had previously ruled that no additional public comment would be received at the Thursday hearing.

Last week’s letter was delivered by Milam County landowner and attorney, Judith McGeary, on her own behalf and on behalf of Milam County members of the Farm and Ranch Freedom Alliance (FARFA). McGeary serves as the Executive Director of Cameron-based FARFA.

FARFA’s website lists its work as helping independent family farmers as well as protecting a healthy and productive food supply for consumers. McGeary is a frequent speaker at Post Oak meetings and has been involved in its rulemaking and permitting programs.

Letter covers concerns

McGeary’s full letter is posted on the FARFA website at http://farmandranchfreedom.org/category/water-2/.

In the letter’s summary of her concerns, McGeary noted several deficiencies in the amendment application, which form the basis for the District to refuse granting the amended permits. In addition to alleged failures to comply with District Rules, Vista Ridge has not publicly revealed why it needs more water.

McGeary’s letter essentially concludes the extra water will be wasted and not used beneficially, as is required under the Texas Water Code.

The additional water may be needed either because of evaporative losses in the cooling system that precedes the piping of water to San Antonio, or the pipeline incurs leakage, or both. A hydrologist’s report buried in the Vista Ridge application offers both explanations, according to McGeary.

She offered as a third possibility Vista Ridge may be attempting to add water to its permit to avoid permit cutbacks in future. Post Oak Rules allow such cutbacks under certain circumstances, but a SAWS’ representative has been public quoted that SAWS will not be bound by any cutbacks.

McGeary makes the case that SAWS has also already publicly stated it has no “need” for at least 15,000 AFY of the original 50,000 AFY it agreed to buy. SAWS has tried to sell to third parties either this surplus Vista Ridge water or Edwards Aquifer water that is rendered surplus to SAWS because of the Vista Ridge supply.

Raised similar concerns

Several representatives of the central Texas-based Simsboro Aquifer Water Defense Fund spoke against the Vista Ridge amendments at the October hearing. Written comments by the group’s director, Lee County landowner Michele Gangnes, are published on the SAWDF website at https://simsborowaterdefensefund.org, and raised some of the same concerns that McGeary’s letter addressed in detail. The website also includes Mr. Zgabay’s original protest of the amendments.

SIMSBORO AQUIFER WATER
DEFENSE FUND
(SAWDF)
P.O. Box 931
Elgin, Texas 78621-0931
www.simsborowaterdefensefund.org

Michele G. Gangnes, Esq.
Director
512-461-3179

October 3, 2019

Board of Directors
Post Oak Savannah Groundwater Conservation District
310 East Avenue C
Milano, Texas 76556
 

Dear Board Members:
These comments may be longer than my spoken comments, depending on time allotment. I would appreciate your attention to their entirety. We believe we are raising important issues for your consideration, after much study of your Rules and your Management Plan.
_____________________
Good evening, President Youngblood and Directors, thank you for the opportunity to speak to you.

My name for the record is Michele G. Gangnes. I am a Lee County landowner and attorney, and I am a founding board member of the Simsboro Aquifer Water Defense Fund, a 501c3 organization based in Bastrop County and usually known as “SAWDF”.
I am speaking tonight for both myself and SAWDF, because, like the other founders of SAWDF, I have been committed to the protection of our local aquifers under Burleson, Milam, Lee and Bastrop counties for two decades.

We focus especially on the Simsboro because it is a unique water resource, just as surely as unique and worthy of protection as the Edwards Aquifer or any other water resource in Texas. Frankly, it may be the most endangered natural resource we have, given the amount of over-permitting that has happened in just our four counties.

2
SAWDF also works to protect the property rights of landowners, including their groundwater.

Your constituent landowners and other district residents rightfully expect their groundwater district to act proactively when necessary to protect their aquifers and their rights to what’s under their property, no matter what formation that water is in.
You have that opportunity tonight to use the tools available to you--- your own Management Plan and Rules, and your authority under the Texas Water Code ---to let your constituents know that the crisis of over-permitting is not lost on you.

You have the ultimate authority to grant or deny a permit or, as here, a substantial permit amendment that requests additional water before even one drop of water is produced under a permit for 50,000 acre-feet/year, no matter whether you ultimately declare the permit “contested”, and order a contested case hearing, or you declare it “uncontested”.
You are the state’s preferred regulator of groundwater in these two counties, including groundwater production, and you have the ability to address --- and you have the confidence of your constituents that you will address, both procedurally and substantively --- the issues we raise and that others have raised.

Further, your General Manager has the authority --- and should exercise it --- to find that the Application is not administratively complete. More importantly, because of the gravity of issues raised by two protestants and in public comment at your last board meeting, he had the opportunity to exercise, but did not exercise, his authority to contest the Application under Rule 14.4.1 of the District by giving notice to the Applicant, not later than last Tuesday night, October 1.

Irrespective of what the General Manager did or did not do, however, this Board has broad authority under its own Rules and under the Water Code, culminating in its authority under Rule 7.6:

RULE 7.6. CONSIDERATIONS FOR GRANTING PERMITS. In deciding whether or not to
issue a well, drilling, transport, permit amendment or operating permit, and in setting the terms of the permit, the Board will consider Chapter 36, Texas Water Code, the District Act and rules, the application, and all other relevant factors, including, but not limited to, (1) the management plan; (2) the quality, quantity, and availability of alternative water supplies; (3) the impact on other landowners and well owners from a grant or denial of the permit, or the terms prescribed by the permit including whether the well will interfere with the production of water from exempt, existing or previously permitted wells and surface water resources; (4) whether the permit will result in a beneficial use and not cause or contribute to waste; and (5) if the applicant has existing production permits that are underutilized and fails to document a substantial need for additional permits to increase production. If no person notifies the general manager of their intent to contest the application, and if the general manager does not contest the application, the application will be presented directly to the Board for a final decision. The Board may grant or deny the application, in whole or in part, table or continue the application to hear additional evidence, or refer the application to the hearings examiner for a complete hearing. Applications will not be considered administratively complete until all applicable fees are paid to the District. [Amended June 12, 2012](emphasis added)
3
__________________
Specifically, we urge that your Rules authorize you or your General Manager to require that Vista Ridge comply with RULE 7.4. APPLICATION REQUIREMENTS FOR ALL PERMITS. RULE 7.8. AMENDMENT OF A PERMIT and RULE 7.6. CONSIDERATIONS FOR GRANTING PERMITS in order to achieve administrative completeness, under your Rules and under the Water Code, Sections 36.113 through 35.1146. Vista Ridge’s Application is deficient under those Rules.

Mr. Terrill’s letter for the Applicant cites your Rule 7.6.5 and declares:
“Blue Water affirms that the Vista Ridge project does not currently hold underutilized permits and has a substantial need for the relocation of PW-18, the increase in aggregate Simsboro well field production, and the increase in instantaneous production of PW-12, PW-13 and PW-16. (Rule 7.6(5)).”

Whether or not such affirmation, without any further discussion, should have been enough for the General Manager to accept the statement as fact for purposes of administrative completeness, your Rule 7.8.1 actually requires more for administrative completeness, let alone permit amendment approval by the Board. (Rule 7.8.2 makes clear increased annual withdrawals constitutes a substantial change to a permit)
Vista Ridge needs to substantiate why 50,993 afy is inadequate and the need for an increase under Rule 7.8:

RULE 7.8. AMENDMENT OF A PERMIT.
1. A substantial change to a permit may be made only after application to amend the permit has been filed with the District and approved by the Board. It is a violation of these rules to pump any amount of water over the amount authorized, or to exceed the maximum withdrawal rate authorized, by an operating permit. A written, sworn application for a permit amendment to increase the authorized withdrawal or the withdrawal rate must be filed and an amendment ranted before any additional production occurs. The applicant must demonstrate that the originally authorized amount is inadequate and the need to increase the withdrawals. (emphasis added)
I have not reproduced here your clear authority under the Water Code, specifically in Sections 36.113 through 36.1146, to require a substantial amendment application to include certain things before it is declared administratively complete.

I think your counsel will tell you that your Rule 7.8 complies with the Water Code and is adequate for your general manager to have declared the Application not administratively complete until need for additional water is established to the satisfaction of this Board.
I would suggest that you might even revisit “under-utilization” under Rule 7.6 for a permit for 50,993 AFY that has not yet produced one drop of water under a water supply contract that will not require 50,993 AFY but instead requires only up to 50,000 AFY.

4
The extra 993 --- or 323.6 million gal/yr --- are apparently superfluous in Vista Ridge’s estimation. You might even want to inquire into the San Antonio Water System’s admission over the course of the last 5 years, that there is no “need”, on a permanent basis, for up to 15,000 AFY of what Vista Ridge will supply.

You might even see, as SAWDF does, a question as to whether this water is being put to a “beneficial use” rather than being pumped for mere speculation by either the Applicant or the end user. We believe there is a question whether water under this permit or under the Amendment is being “wasted” under your Rules and under the Water Code.

In short, as far as an “under-utilized” permit, the extra 15,993 AFY seems worthy of inquiry, at least as far as the extent to which additional explanation of these issues by the Applicant might make your record more robust and more clear. Your inquiry into the purpose of an amendment to increase production allows you to consider under-utilization of an existing permit.

In any event, the Application needs more work before it is even ready to be considered at a permit hearing.
__________________
We also urge that if you have received timely requests for a contested case hearing and party status in such hearing, such requests should result in a continuance of this permit hearing, in favor of setting a “preliminary” hearing to hear evidence and determine whether a contested case should be held and who has standing to participate. That is, those decisions should not be made this evening.

We of course recommend that you carefully review both requests for contested cases, in the light of day and in a way that is accountable to your constituents and that does not allow for, for lack of a better word, “ambushes” by the Applicant that I recall seeing in this District once before.

We also once again remind this Board of its ultimate authority over this permit amendment under the penultimate sentence of Rule 7.6, quoted and emphasized above, and which I will further address below, whether or not the permit is the subject of a contested case hearing due to protests by the two landowners.

__________________
As a final matter, SAWDF also understands that public comment at your last board meeting and possibly written comments or oral comments to be delivered to you tonight, raise important issues with respect to a fundamental element of the existing permit, as well as the Application for its amendment, that being issues with the compliance of the claimed water rights of the Applicant with your Rules.

In fact, we urge this Board that the issues surrounding the groundwater leases that support this permit are uniquely suited to an inquiry by the Board (as opposed to relying on affected
5
landowners or third parties like myself to raise the issue, and also due to the fact that your General Manager seems not to have raised any of these issues to your attention).
The leases go to the fundamental question of whether the Applicant even has the right to seek the permit (in whole or in part) under your Rules, regardless of the impact on other landowners or any other factors.

We urge you to take this issue of legality very seriously, again both procedurally and substantively. By procedurally, I not only mean in accordance with your Rules but in the spirit of accountability and transparency to your constituents and to the elected officials who appointed you, no matter what substantive result you reach.

Again, the Board has broad rights under your Rule 7.6 as described below, specifically whether or not you convene a contested case with landowners as parties. You as the Board have the authority under Rule 7.6 to grant or deny permit amendments, whether or not the permit is contested by either the General Manager or third parties, on the basis of the considerations you must make under that Rule. Specifically, the Board may “grant or deny the application, in whole or in part, table or continue the application to hear additional evidence, or refer the application to the hearings examiner for a complete hearing” under Rule 7.6.
___________________
I would like to share with you a quote I read just yesterday --- I’m a big fan of Roadrunner Cartoons but this is a pretty serious quote by Jason Morrison, president of the Pacific Institute, commenting about a new study of the disastrous impacts over-pumping of aquifers is having on natural surface water systems:

“Our overuse of groundwater resources is one of those quiet, under-appreciated challenges. The impacts are more profound than we understood. We’re kind of in this Wile E. Coyote moment where we’re over the cliff and we’re running still.”

Thank you for your attention, and thank you for your service on this Board. I am the first to admit it’s a difficult job you are tasked with --- managing groundwater levels in a way that protects the rights of all property owners when some owners seek to pump very large amounts. But I also know you are up to the task.

Sincerely,
Michele G. Gangnes