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Appeals court bars Bastrop Co. residents from contesting water permit


Water permit seeks 15 billion gallons per year from Simsboro Aquifer


Reprinted from Austin American-Statesman


Sept 07, 2018

By Brandon Mulder, Austin Community Newspapers Staff

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Linda Curtis (right), of League of Independent Voters, talks to retired rancher and Bastrop County landowner Grover Shade (left) and Lee County Judge Paul Fischer at a groundwater meeting in 2015. FILE PHOTO

A pumping permit to allow water marketing company Recharge Texas to export up to 15 billion gallons of water per year from the Simsboro Aquifer was reinstated last week after a Texas appeals court issued a verdict that blocked landowners in Bastrop and Lee counties from challenging the permit.


In 2016, The Lost Pines Groundwater Conservation District awarded the contentious permit to End Op — a water marketing company that now goes by Recharge Texas — after strong opposition from landowners and environmental groups. The company sought to pump water from the Simsboro Aquifer underneath Lee and Bastrop counties and sell it to potential customers in Hays, Travis and Williamson counties.


The groundwater district denied local landowners the chance to contest End Op’s permit, as they had no pumping permits of their own in the aquifer. The landowners then successfully sued the groundwater district in Bastrop County District Court and won the right to challenge the permit.

The landowners argued that they should be a party in the case because excessive groundwater pumping would hurt the area’s streams and aquifers, drain their own private water wells and diminish their property values.


District Court Judge Carson Campbell sided with the landowners and ordered the groundwater district to withdraw End Op’s permit and allow landowners to contest the permit application in a new case.


“Apparently, Judge Campbell agrees landowners have a right to protest permits that threaten their legally vested property rights in the groundwater under them,” said attorney Ernest Bogart of Elgin, who is representing landowners.


The groundwater district and End Op took Campbell’s decision to the Third Court of Appeals. On Aug. 29, the appeals court overturned the lower court’s decision and found that “the district court had no jurisdiction over these orders,” the memorandum opinion read.


The opinion cited statutory law that says “only the (groundwater conservation) district, the applicant and parties to a contested case hearing may participate in an appeal of a decision.”


The court also wrote that landowners were barred from being parties in the case because they failed to timely file a “petition for review” of the groundwater district’s order that excluded them as a party to the case.


The landowners group said it does not know whether it will further appeal the decision to the state Supreme Court.


‘Water demands increase’

A similar groundwater fight is teeing up over an application the Lower Colorado River Authority has filed with the groundwater district to pump 8 billion gallons of water per year. The application, which was filed in February, is expected to go before the district’s board Sept. 26.


Already, environmental groups and landowners are organizing opposition. The Simsboro Aquifer Water Defense Fund has scheduled two meetings in Bastrop on Sept. 13 “for anyone interested in a further conversation about the permit,” said the defense fund’s director Michele Gangnes.


In an op-ed published this summer, the LCRA said water pumped from the Simsboro Aquifer would serve current and future water customers within its service area, which includes more than 20 counties within the Colorado River watershed.


“As a regional water supplier, it would be irresponsible for us to sit idly by as our state grows and water demands increase, including Bastrop County,” wrote LCRA General Manager Phil Wilson. “It takes years to develop new water supplies, which is why we’re moving forward with this and many other projects today.”