Vista Ridge: Don't California Our Water!

1
Sydney Zgabay
8710 W St. Hwy 21
Caldwell, TX 77836
 

September 26, 2019

VIA HAND DELIVERY and EMAIL
Post Oak Savannah Groundwater Conservation District
c/o Gary Westbrook, General Manager
310 East Avenue C
Milano, Texas 76556
Re: Request by Sidney Zgabay for Contested Case and for Party Status in any contested case hearing (Request) with regard to Application to Amend Vista Ridge Drilling and Operating Permit No. POS-D&O/A&M-001d (Operating Permit) and Transport Permit No. POS-T-0001d (Transport Permit) (collectively, Application) by Blue Water Vista Ridge LLC, acting as permit administrator for Vista Ridge, LLC (collectively, Vista Ridge or Applicant).
Dear Mr. Westbrook:
I am submitting this Request for Contested Case and Party Status in accordance with Post Oak Savannah Groundwater Conservation District (District) Rules, including without limitation Rules 7.5.3, 14.2.3., 14.4.1 and 14.5.3(b).
Procedural compliance of this Request
I am complying with the notice and delivery requirements of the Rules by delivering this Request to the District’s General Manager by hand delivery and by email, and to the Applicant’s attorney, Mr. Paul Terrill of Terrill Waldrop, by email, on September 26, 2019, which is five (5) business days prior to October 3, the date set for a public hearing on the Application.
Substantive requirements of this Request
This Request also complies with Texas Water Code (Code) Section 36.415 and with District’s Rule 14.5.3(b), by providing evidence establishing my standing as an affected person, defined by the District’s Rules as:
2
"Affected person" means, for any application, a person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application. An interest common to members of the general public does not qualify as a justiciable interest. Determination of relevant factors of a personal justiciable interest shall be considered and shall include but not be limited to, the following:
(1) whether the interest claimed is one protected by the law under which the application will be considered;
(2) distance restrictions or other limitations imposed by law on the affected interest, including proximity to well locations, facilities, activities or groundwater resources affected by or related to the application;
(3) whether a reasonable relationship exists between the interest claimed and the activity regulated;
(4) likely impact of the regulated activity on the health, safety, and use of property of the person;
(5) likely impact of the regulated activity on use of the impacted natural resource by the person; and
(6) for governmental entities, their statutory authority over or interest in the issues relevant to the application. [Amended July 2, 2019]
For reasons that will be established in this Request, I am a person affected by this Application.
Code Section 36.415 provides:
Sec. 36.415. RULES; ADDITIONAL PROCEDURES. (a) A district by rule shall adopt procedural rules to implement this subchapter and may adopt notice and hearing procedures in addition to those provided by this subchapter.
(b) In adopting the rules, a district shall:
(1) define under what circumstances an application is considered contested;
(2) limit participation in a hearing on a contested application to persons who have a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest that is within a district's regulatory authority and affected by a permit or permit amendment application, not including persons who have an interest common to members of the public; and
(3) establish the deadline for a person who may participate under Subdivision (2) to file in the manner required by the district a protest and request for a contested case hearing. (emphasis added)
For reasons that will be established in this Request, I have a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest that is within a district's regulatory authority and affected by a permit or permit amendment application, not including persons who have an interest common to members of the public.
3
Rule 14.5.3 and specifically 14.5.3(b) of the District’s Rules provides:
3. Preliminary Hearing.
b. A request for a contested case hearing must substantially comply with the following: (1) give the name, address, and daytime telephone number of the person who files the request. If the request is made by a group or association, the request must identify one person by name, address, daytime telephone number, email, and, where possible, fax number, who shall be responsible for receiving all official communications and documents for the group;
(2) identify the person's or entity’s personal justiciable interest affected by the application, including a brief, but specific, written statement explaining in plain language the requestor’s location and distance relative to the activity that is the subject of the application and how and why the requestor believes he/she/it will be affected by the activity which is the subject of the hearing in a manner not common to members of the general public owning land with an actual well in compliance with the District’s rules and within the District’s boundaries of Milam and Burleson counties; and (3) provide documentation, including any scientific
studies or reports, that supports or shows how the explanation set out in (2) above
demonstrates a personal justiciable interest that will be resolved by participation in the contested case. [Added July 2, 2019] (emphasis added)
To the extent Rule 14.5.3(b) complies with Code Section 36.415 and for the reasons to be established in this Request, my Request substantially complies with this Rule.
Request for preliminary hearing to hear contested case hearing Request and scheduling coordination
I also bring to the District’s attention the requirements of Rule Section 14.5.3, which provides:
3. Preliminary Hearing.
a. The Board shall schedule a preliminary hearing to hear a request for a contested case hearing filed in accordance with rules adopted under Section 36.415, Texas Water Code. The preliminary hearing may be conducted by:
(i) a quorum of the Board;
(ii) an individual to whom the Board has delegated in writing the responsibility to
preside as a hearing examiner over the hearing or matters related to the hearing;
or
(iii) the State Office of Administrative Hearings under Section 36.416. (emphasis added)
This Request constitutes, on its face, “a request for a contested case hearing filed in accordance with rules adopted under Section 36.415, Texas Water Code”, and I respectfully request that the Board of the District continue the October 3rd hearing and schedule a preliminary hearing at a
4
date to be determined to hear my request for a contested case hearing. I further request that the preliminary hearing be conducted by a quorum of the Board.
Any other action by the Board would create a violation of my rights that has no appropriate remedy. Were the Board to move ahead with the Applicant’s permit during the October 3rd hearing, it would essentially be allowing Applicant to “ambush” my Request for Contested Case without providing any notice to me of the Applicant’s basis for contesting my Request for party status or allowing me to present expert testimony and legal arguments to rebut such contentions by Applicant. Presumably, this is why Rule 14.5.3 – like Water Code Section 36.4051 -- requires a preliminary hearing, rather than proceeding with the formal hearing on the permit without opportunity for the protestant to meaningfully counter arguments of the Applicant.
I further request that the scheduling of the preliminary hearing be made with consideration for the schedule of the hydrologist whom I have engaged to represent me. He is unable to attend the October 3rd hearing and his availability through the remainder of October is limited because he is involved in a contested case hearing at the State Office of Administrative Hearings in the weeks prior to and during the weeks of October 14 and October 21. He is prepared to work on this matter with all due diligence.
Summary of my right to a contested case and party status
As a landowner with protected interests, I have the right, under the Texas Water Code, Texas Supreme Court opinions, and the District’s Rules, to be a "party" to any administrative or judicial hearing or action that may impact the groundwater that I own in place and/or the land that is associated with that groundwater. The pending Application and the existing permits to which it relates will impact me personally, my land, and my groundwater. In acting on the Application, Post Oak Savannah Groundwater Conservation District has just as much legal responsibility to protect my private property rights, my legal rights, and my economic interests as it does the Applicant’s rights.
Specific facts establishing standing of Sidney Zgabay
I submit this Request in connection with the Application for myself, Sidney Zgabay, as the owner of real property in Burleson County, the physical address of which is 8710 W Hwy 21, Caldwell, Texas 77836, with a portion of the improvements on that property having the address of 8716 W Hwy 21, Caldwell, Texas 77836 (collectively, the Zgabay Property). The legal descriptions for my properties as they appear in the records of the Burleson County Appraisal District are A0082 COX, E. M. IMPROVEMENTS SIT ON R13618, and A0082 COX, E. M., respectively, with the Property IDs 38608 and 13618.
(Copies of the deeds are available if needed; the Zgabay Well, defined herein, is located on the 8716 W Hwy 21 property.)
My daytime phone number is listed above. I am not requesting party status on behalf of any other individual or organization.
5
The Zgabay Property is approximately 3 miles from the nearest well of the Applicant, to the best of my information and belief. To the best of my knowledge, the relocation of PW-18 well will result in the well being closer to my property than previously.
We are the owners of an exempt groundwater well (Zgabay Well) on the Zgabay Property that is registered with the District. We depend on this well for domestic and household purposes and believe it to be in compliance with all District Rules. (A copy of the well registration is available at the District.)
To the best of my information, the Zgabay Well is completed at a depth between 450 and 500 feet in a formation of the Carrizo-Wilcox Aquifer (Aquifer), either the Simsboro or another formation that communicates with the Simsboro.
The Zgabay Well is approximately 3 miles from the nearest well of the Applicant, to the best of my information and belief. I reserve the right to supplement the information for the Zgabay Property and the Zgabay Well for distance from the nearest Applicant well; I found the information in the Application difficult to use to make this determination since I am not expert in working with latitude/longitude methods of determining distance.
“Distance” issues
Applicant’s massive well field will have impacts on landowners and groundwater throughout the majority of the District.
While distance is relevant in assessing impacts, there is no legal requirement that the protestant’s property or well be within a specific distance from Applicant’s wells. Rather, in deciding whether to grant a permit of not, District Rule 7.6 does not provide any distance limitation, but rather requires the District to consider the impacts on other landowners and well owners:
RULE 7.6. CONSIDERATIONS FOR GRANTING PERMITS. In deciding whether or not to issue a … permit amendment, 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, … (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; … (5) if the applicant has existing production permits that are underutilized and fails to document a substantial need for additional permits to increase production.
My property rights in my groundwater have NOT been leased for the purpose of water exportation out of Burleson County. I have not consented to water leaving beneath my property. Increased production from the Simsboro well field will increase drawdowns in each formation of the Aquifer under my land, including without limitation the formation in which my well is producing; and I should
6
not be precluded from exercising my property rights as any other landowner who has not severed her property rights.
Questions as to the Application’s administrative completeness
On information and belief, Applicant has not utilized any of its groundwater since the permit was originally issued, and now has agreed to deliver 50,000 AFY to San Antonio for thirty years, thus apparently underutilizing its current permit amount of 50,993 AFY. The impacts of such pumping on landowners such as myself is not certain at this time, since the pumping has yet to begin, but the best available modeling indicates that wells such as mine will be significantly drawn down. Yet Applicant gives no reason for increasing the amount of water to be pumped.
The Application should thus be scrutinized by the District under Rule 7.6(5) because the Applicant, if its permit is underutilized, has failed to “document a substantial need for additional permits to increase production.” Further, the Application does not meet the requirements of Rule 7.8 because the “applicant must demonstrate that the originally authorized amount is inadequate and the need to increase the withdrawals” – and this rule requires such demonstration without reference to whether the existing permit is “underutilized” or not (emphasis added).
The Application’s failure to comply with Rule 7.6(5) and especially Rule 7.8 raises questions as to whether the Application is “administratively complete.” This issue should be considered by the Board before it decides on my (or anyone else’s) request for a contested case hearing, since it goes to whether the Application is even ripe for review and consideration by the Board (or affected persons for that matter).
Pumping impacts have been predicted since 2015
Assuming for the sake of argument that the Application is ripe for review, Applicant’s existing permit has already been projected to cause significant negative impacts to the Aquifer by San Antonio hydrologist and former Board member of the Edwards Aquifer Authority, George Rice.
In a September 22, 2015, report entitled Effects of Vista Ridge Pumping on Groundwater and Surface Water in the Lost Pines and Post Oak Savannah Groundwater Conservation Districts, Mr. Rice applied the then state-approved Groundwater Availability Model (GAM) to predict the impacts of Vista Ridge pumping of 50,993 AFY.
The model predicted the pumping would have significant and negative impacts on wells in at least two groundwater conservation districts, including the Post Oak District, as well as effects on both Districts’ ability to achieve each of their then existing Desired Future Conditions for the Simsboro Aquifer. The 2015 Report demonstrates the impacts on my well, which will be affected by drawdowns directly related to the Vista Ridge project.
I have engaged Mr. Rice to update his 2015 report, using the most recent GAM and the Application’s requests, for introduction into evidence in the preliminary hearing on my Request; in the meantime,
7
Mr. Rice has explicitly authorized me to rely on his 2015 Report. (The 2015 Report is attached to this Request as Exhibit A.)
The 2015 Report’s conclusions, although not yet updated for an additional 4,345 AFY and for the newer GAM, are still valid. Rice concluded that pumping 50,993 AFY would:
• Reduce hydraulic heads in the Hooper, Simsboro, Calvert Bluff, Carrizo, and Queen City aquifers.
• Where these aquifers are confined, the reduced heads would cause water levels in wells to decline.
• Where these aquifers are unconfined (recharge areas), the reduced heads would cause dewatering of portions of the aquifers.
• Result in the POSGCD exceeding its adopted Simsboro Aquifer desired future conditions by 2060.
• Reduce groundwater discharge to the Colorado and Brazos rivers, thereby reducing the amount of water flowing in these streams.
Under Water Code Section 36.1132, these impacts on the Aquifer, landowners and wells in this area, and my property in particular, must be considered by the District.
Sec. 36.1132. PERMITS BASED ON MODELED AVAILABLE GROUNDWATER. (a) A district, to the extent possible, shall issue permits up to the point that the total volume of exempt and permitted groundwater production will achieve an applicable desired future condition under Section 36.108.
(b) In issuing permits, the district shall manage total groundwater production on a long-term basis to achieve an applicable desired future condition and consider:
(1) the modeled available groundwater determined by the executive administrator; …(emphasis added)
If the District must manage total groundwater production on a long-term basis to achieve an applicable desired future condition (DFC), considering, among other things, the modeled available groundwater (MAG), but an existing permit itself “uses up” the MAG as is the case with the original Vista Ridge permit as soon as pumping begins as planned in 2020, the District is in a position to at least prevent further damage to my property from allowing increased pumping under that permit.
I am clearly a person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest that is within a district's regulatory authority and affected by a permit or permit amendment application, the test for standing under Code Section 36.415.
Application of “affected person” definition in District Rules
In relation to the Application, I am an “affected person” as defined in the District Rules, including clauses (1) through (5), with (6) being not applicable in my case.
8
I own a unique parcel of real estate, which has not had its water rights severed. I am also the owner of a producing well in the Aquifer.
My groundwater ownership rights in all formations of the Aquifer have not been severed from the surface estate by conveyance or reservation and as such are an element of the surface estate under Texas law. I have an existing well that will be impacted by the Vista Ridge pumping, and my unsevered groundwater rights in each formation of the Aquifer will also be impacted.
As shown in Figure 2 on page 3 of the 2015 Report, which I have reproduced as Exhibit B to this Request, the pumping of 50,000 AFY from the Carrizo and Simsboro aquifers to be withdrawn from 33 permitted wells located as requested in the existing permit, will lower water levels in the Simsboro Aquifer beneath the Zgabay Property. (I have approximately marked the location of the Zgabay Property on the Figure 2 map.) This reduction of groundwater levels beneath the Zgabay Property renders it affected in a manner not common to the general public. If I read Rule 14.5.3(b) to say I also must distinguish myself from every other well owner in the District, my real property is unique, and the drawdown under my property is unique or at least common only to other well owners with similar drawdowns.
Most recent precedent favors landowners
Recent precedent on standing supports my position as an affected person. There is currently an ongoing contested case hearing before an Administrative Law Judge (ALJ) in the State Office of Administrative Hearings on a permit application by the Lower Colorado River Authority (LCRA Case).1 In that case, the ALJ2 admitted not only landowners with Simsboro wells, but also landowners with dependence on natural surface water systems, landowners with current plans to drill a producing water well in a formation of the Carrizo-Wilcox Aquifer (with certain limitations not here relevant), and landowners with wells in any formation of the Aquifer or in minor aquifers. The ALJ noted that the weight of their testimony may vary based on the distance from the applicant’s wells, but that they were all affected persons who had standing to be parties in the contested case hearing.
The ALJ stated the “mandatory standing test” is set out in Water Code Section 36.415(b)(2) (quoted above). (SOAH Docket Number 952-19-0705, Order No. 5 RULING ON PARTY STATUS may be found here.) Any provisions of the Post Oak District’s rules that restrict party status more than is provided under the Water Code are improper and should not be applied in this case.
It should be noted that in the LCRA Case, the subject groundwater district rule on party status mirrored Water Code Section 36.415, rather than as in the Post Oak District where Rule 14.5.3(b) attempts to enlarge, restrict or omit some provisions of Section 36.415, apparently in part as an attempt to eliminate certain applications of Section 36.415 that would bestow party status, rather than admit
1 SOAH DOCKET NO. 952-19-0705, Application of Lower Colorado River Authority for Operating and Transport Permits for Eight Wells in Bastrop County
2 SOAH DOCKET NO. 952-19-0705, Order No. 5 RULING ON PARTY STATUS
9
those with a justiciable interest as parties and then leave the ultimate decision of actual damages to the trier of fact and law.
The ALJ cited In City of Waco v. Tex.Com’n on Environmental Quality where the Court of Appeals in Austin determined “an affected person” must meet the following requirements to have standing to request a contested case hearing before Texas Commission on Environmental Quality:
(1) an “injury in fact” from the issuance of the permit as proposed—an invasion of a “legally protected interest” that is (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical”;
(2) the injury must be “fairly traceable” to the issuance of the permit as proposed, as opposed to the independent actions of third parties or other alternative causes unrelated to the permit; and
(3) it must be likely, and not merely speculative, that the injury will be redressed by a favorable decision on its complaints regarding the proposed permit (i.e., refusing to grant the permit or imposing additional conditions).3
The ALJ went on to say, to prevail on a request for party status, landowners must show a concrete, particularized injury-in-fact that must be more than speculative, and there must be some evidence that would tend to show that the legally protected interests will be affected by the action, citing City of Waco at 305, and End OP., L.P. v. Meyer, No. 03.13.00049—cv, 2018WL 4102013 at *3 (Tex. App. - Austin 2018, no pet.)
In rendering his opinion in the LCRA Case, the ALJ essentially spoke to the provisions of Rule 14.5.3(b). Although he recognized that their roles and impact on the case may differ, he included as parties those landowners whose status was challenged by the permit applicant with arguments such as: individuals with wells that draw water from minor aquifers were unlikely to be impacted by the applicant’s pumping in the Simsboro; landowners whose wells were not shown to be producing from the Simsboro, because an assertion that aquifers are connected is too tenuous to show that any drawdown in other aquifers will cause harm; that a mere assertion that wells in other formations of the Carrizo-Wilcox Aquifer communicate with the Simsboro is too speculative to show standing; and a landowner with a Simsboro well fifteen miles away from the applicant’s wells will likely incur zero drawdown. In other words, the ALJ did not find merit in any of these contentions, and neither should this Board.
Consequently, based on the ALJ’s ruling on party status in the LCRA Case, I have a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application, that is within the District’s regulatory authority to address.
Under Water Code Section 36.002, I own any groundwater in place under my land, as a real property interest. My unique real property interest in my groundwater on my unique piece of real property, and my unique Zgabay Well’s production of water from either the Simsboro formation of the Carrizo-Wilcox Aquifer or another formation that communicates with the Simsboro (including without
3City of Waco v. Texas Com ‘n on Environmental Quality, 346 S.W,3d 781, 802 (Tex App-Austin 2011, pet. denied), rev 'd on other grounds, 113 S W 3d 409 (Tex 2013)
10
limitation, the Calvert Bluff and the Hooper in the Wilcox Group, and the Carrizo aquifer), are not interests in common with members of the general public.
Additionally, the Texas Supreme Court held in Edwards Aquifer Authority v. Day that, “land ownership includes an interest in groundwater in place.” These interests will be adversely impacted by the pumping for which Applicant seeks authorization in the proposed permit at issue. The drainage caused by that pumping will result in the diminution and potential elimination of groundwater that is a valuable asset I hold as a landowner.
My private property interest in groundwater is a vested right of ownership (a legal interest) protected by the U.S. Constitution and Texas laws from a “taking” --- a taking is confiscation of my property without compensation (a legal right). The Texas Legislature has recognized groundwater as a “vested interest”, and the District has the legal responsibility to protect my private property rights.
My standing to request a contested case and to be a party to the contested case hearing is also supported by the underlying decision of 21st State District Judge Carson Campbell (whose district includes Burleson County) in the original appeal of a groundwater district’s denial of party status. Judge Campbell’s decision gave rise to the appeal in End Op v. Meyer, which the ALJ in the LCRA Case cited in his party status decision.
In the End Op case, the district had denied multiple landowners’ requests for party status and moved ahead with a contested case hearing without their involvement because they did not have wells in the aquifer from which the applicant would be pumping. After the contested case hearing, the landowners appealed. Judge Campbell reversed the district’s order granting permits to Recharge Water, LP (formerly End Op, LP), and granted party status to the landowners. (Judge Campbell’s Final Judgment is attached to this Request as Exhibit C.)
This final judgment was appealed and reversed on procedural grounds by the Third Court of Appeals, without reaching the merits of Judge Campbell’s decision. The Bastrop County District Court’s conclusion that landowners have a justiciable interest in the water beneath their land, whether or not they are accessing that water, still stands.
My interest in my groundwater is a property interest protected by the law under which the application will be considered, as acknowledged by the District’s Rules and the District’s Management Plan, and as succinctly put in District Rule 1.24:
RULE 1.2. PURPOSES OF RULES. These rules are adopted to aide [sic] in compliance with the
4 The provisions of Rule 1.2 should be taken to heart not only by the District’s constituents but by the District itself. The Board is urged to consider on how many levels the pending Application offends the laudable aspirations of this District, and to also consider contesting this permit itself, as is its right. See, District Rule 7.6, which provides in pertinent part, “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.
11
provisions of the District Act, to provide regulations necessary and useful to accomplish the
purposes set forth in the District Act, and to provide standards and requirements that may be
enforced to accomplish such purposes, that include, but are not limited to, protecting and
conserving the aquifers, and providing for sustainable groundwater management, recognition of property rights, economic and environmental benefits consistent with the Act, to protect private property rights, balance the conservation and development of groundwater to meet the needs of this state, use the best available science in the conservation and development of groundwater and to achieve the following objectives: to provide for conserving, preserving, protecting, and recharging of the groundwater or of a groundwater reservoir or its subdivisions in order to control subsidence, prevent degradation of water quality, or prevent waste of groundwater. The District’s Orders, Rules, regulation, requirements, resolutions, policies, guidelines, or similar measures have been implemented to fulfill these objectives. [Amended July 12, 2016] (emphasis added)
.
In summary, as a landowner with protected interests, I have the right, under the Water Code, Texas Supreme Court opinions and the District’s Rules to be a "party" to any administrative or judicial hearing or action that might have an impact on the groundwater that I own in place and/or the land that is associated with that groundwater. The pending Application and the existing permits to which it relates, is one such administrative action of the District that will impact me personally, my economic interests, my land and my groundwater. Post Oak Savannah Groundwater Conservation District has the legal responsibility to protect my private property rights, my legal rights and my economic interests in connection with its action on the Application.
I am:
o protesting the application for an amended permit that is pending before the District to relocate Well PW-18, in that if the well is moving closer to my property, my property and my well would suffer additional particularized impacts, in addition to being impacted by all 33 wells;
o protesting any additional permission to the Applicant to pump additional water from the Simsboro formation without an adequate showing to achieve administrative completeness;
o notwithstanding any decision on administrative completeness, protesting that such additional pumping will be shown to have significant negative impacts on wells in the District, including the Zgabay Well, and achievement of the District’s Desired Future Conditions;
o requesting a contested case hearing be held on the Application; and
o requesting party status in that contested case hearing.
The District has a responsibility to protect my private property rights and should therefore grant me "party status" and hold a contested case hearing to hear and act on my concerns.
I am also requesting that the Board continue the initial hearing set for October 3; schedule a preliminary hearing with reasonable deference to the schedules of my attorney and expert; and set a schedule for a contested case that allows me reasonable time to prepare my case and make other provisions for the conduct of a contested hearing in accordance with the District’s Rules Section 14;
12
and that the Board itself conduct the contested case hearing and not rely on an Administrative Law Judge from the State Office of Administrative Hearings (SOAH).
Additional concerns with the Application and with Applicant’s permits as proposed to be amended, for Board consideration under its Rules ( (not intended to be an exhaustive discussion of all of the issues associated with the Application or the project):
No beneficial use
Article 16, section 59 of the Texas Constitution (the Conservation Amendment) states, “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.” Groundwater Conservation Districts in Texas have a constitutional duty to balance the conservation and development of groundwater.
In furtherance of that duty, under Water Code Section 36.113(d)(3), before granting or denying a permit, a groundwater conservation district must consider whether the proposed use of water is dedicated to any beneficial use. District Rules require this same consideration. If a use is not beneficial, the Water Code and District Rules consider it to be waste. Waste can be defined as “the flowing or producing of wells from a groundwater reservoir if the water produced is not for a beneficial purpose.”
It is impossible for Vista Ridge/SAWS to claim need for any of the water sought to be pumped under these proposed amended permits for decades if ever. This raises an of “beneficial use” of the amount of water requested, either under the existing permits or as amended., There is no demonstrated water shortage in San Antonio and no demand for additional water for many decades, if ever, for 50,000 acre-feet at the end of the proposed 142-mile pipeline. In order to absorb the Vista Ridge water into its system, a significant portion of the City’s annual complement of Edwards Aquifer water is rendered surplus. The Governor recently vetoed San Antonio’s efforts to sell that surplus (that would not be surplus absent Vista Ridge) outside the jurisdiction of the Edwards Aquifer Authority.
Where there is a permit to pump and export 50,000 acre-feet of groundwater per year, starting as early as 2020, but there is no demonstrated demand (and therefore no demonstrated need) for the development of that water, the District is not performing its duty to balance conservation against development. Movement of water for the generation of revenue for profit companies does not equate to development for a beneficial use; it does contribute mightily to the depletion of our aquifers.
SAWS has tacitly admitted it does not need at least 15,000 acre-feet of the 50,000 acre-feet that is scheduled to flow to SAWS for purchase ever. SAWS said in 2014 when the water supply contract was executed, that SAWS would look for temporary buyers of a quantity of water until SAWS needed it (thus admitting there was no demand or need for at least part of the water in San Antonio from the inception of the project). Then SAWS unsuccessfully attempted to sell the 15,000 AFY permanently. In fact, SAWS has Edwards Aquifer water and enough capacity in its brackish desalination facility to avoid any demand for the Vista Ridge water for many years. The District has never investigated this situation
13
and must now do so, in order to perform its duty to balance conservation against development and carry out its explicit duties under District Rule 7.6 when it deliberates the pending Application.
At a minimum, the District should determine that Vista Ridge’s request for additional water from Burleson County must be refused, because there is no demonstrated need for the extra water and it constitutes Waste under the Water Code.
Violation of Desired Future Conditions
The Vista Ridge existing permits will likely cause the Desired Future Conditions (DFC) currently adopted by the District (and will exceed the Modeled Available Groundwater [MAG]). The Rice 2015 report concluded the former DFC would not be achieved by 2060 as a result of Vista Ridge plus baseline pumping alone. The strategy for preservation of the DFC set forth in the District’s previous analysis of the existing permits, to the best of my information (and IF the strategy is even allowed to be exercised at all), will theoretically cause the District to reduce permitted withdrawals later, after the DFC has been violated. The District may be well-intentioned but this is entirely unrealistic; the District’s analysis of the Application under District Rule 7.6 should address this deficiency in its review of the pending Application. The pending Amendments must be denied.
Vista Ridge has entered into binding contracts for the supply of water to San Antonio. Vista Ridge and SAWS have been crystal clear in their expectation that it will be extremely difficult for the District to reduce the permitted water as necessary to preserve the DFC because their water supply project will be so entrenched and investment expectations will be paramount. Furthermore, the Texas Legislature has over time indicated a willingness to consider legislation that would wholly remove the District's ability to effectively manage permits and groundwater production at all, let alone make such reductions in the future. It is unwise for the District to adopt a management strategy that will at best be exceedingly difficult to implement, and relies upon a management tool that the Legislature may remove entirely.
Drawdowns:
I am further concerned that the District's analysis does not fully consider the drawdowns that will result from the proposed applications. The Zgabay Property will be affected by these drawdowns. There are sound scientific reasons why modeling should employ conservative assumptions and approaches that led to the depiction of drawdowns affecting properties in the region in Exhibits A and B, which were based on modeling using the state’s formerly approved Groundwater Availability Model. All available information should be carefully considered in evaluating the anticipated impacts of the applications on groundwater resources, even if that information is imperfect. I am asking for the opportunity to participate in that necessary inquiry about the permits as proposed to be amended, because my property right and economic interests are at risk of being damaged, and my property confiscated without compensation.

 

I believe that a contested case hearing with regard to the Application to amend the existing permits will allow the District to develop a more robust understanding of the facts involved, and enable the District to make a more informed decision on the Application. Accordingly, I request a contested case hearing and party status in such contested case hearing or any other contested case with respect to the above-referenced Application.
Please feel free to contact me if you have any questions.
Thank you in advance for exercising your authority to protect our aquifers and all private property rights related to groundwater.
Respectfully submitted,
SIDNEY ZGABAY