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Austin Court of Appeals Rules

on Lost Pines/End Op vs. Landowners

The Landowner Team

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P.O. Box 690

Elgin, Texas 78621-0690

August 31, 2018

For Immediate Release

Contacts: Michele Gangnes 512-461-3179

Travis Brown 512-560-0341

Appeals Court Rules Against Landowners,

Says Judge Campbell Lacked Jurisdiction

BASTROP – A state Court of Appeals in Austin ruled this week that Bastrop State District Judge Carson Campbell lacked authority when he ruled in favor of four local landowners earlier this year in a lawsuit against the Lost Pines Groundwater Conservation District (Lost Pines).

The landowners claimed the groundwater district wrongfully prevented them from participating in a contested case hearing on a 2007 permit application filed by End Op LP, a company now called “Recharge”. In 2016, Lost Pines issued a permit to End Op to export 15 billion gallons of groundwater per year to Hays, Travis and Williamson counties from the Simsboro Aquifer under Lee and Bastrop counties. End Op has never publicly identified any customer for the water.

In January 2018, Judge Campbell ruled against Lost Pines’ exclusion of the landowners from the hearing and ordered the permit be withdrawn pending a new hearing.

“In effect, the judge ruled against arguments by Lost Pines and End Op that landowners who are not pumping water from the Simsboro should be barred from challenging any Simsboro permit,” said Michele Gangnes, a director of the Simsboro Aquifer Water Defense Fund (SAWDF).

The groundwater district and End Op both appealed Campbell’s decision. End Op claimed landowners failed to properly invoke Judge Campbell’s authority to rule on their lawsuits, due in part to a 2015 change in state law, Gangnes said. That change bars appeals of groundwater permitting decisions resulting from contested case hearings, by anyone who was not a party to the hearing, she said.

“Local aquifer conservation groups believe the Legislature intended to assist End Op and other water marketers in 2015,” said Gangnes. “We also believe the new law does not override the important constitutional issues raised when landowners are denied equal protection of their property rights.”

This week the Court of Appeals did not address the substance of Judge Campbell’s ruling on the landowners’ right to challenge permits. Instead, the court adopted End Op’s argument that Judge Campbell lacked authority to make any ruling at all.

Attorneys for the four landowners said they are currently reviewing the decision, which essentially reinstates End Op’s permit, but does not address important constitutional issues, Gangnes said. Options for the landowners include appealing the decision to the Texas Supreme Court.

The landowners intended to present evidence in the contested case that End Op’s pumping would permanently damage the Simsboro formation and their private property.

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

Bogart said the next opportunity to air those issues is the pending LPGCD permit for the Lower Colorado River Authority (LCRA). LCRA wants the right to export 8.1 billion gallons a year from Bastrop County without specifying a specific destination for the water.

The LCRA permit application is set for hearing at 7 p.m. on September 26, at the Bastrop Convention Center.

SAWDF was formed in 2016 as a qualified 501(c)(3) organization by veterans of several local groups who have battled to protect Texas aquifers for two decades. See, for more information on SAWDF’s support of the four landowners.