Letter asking for due process review delivered prior to grant of City of Bastrop permit by Lost Pines GCD
LAW OFFICE OF MICHELE G. GANGNES
1290 CR B Lexington, TX 78947
Admitted: Washington and Texas
October 12, 2016
Via email to General Manager, with request to forward to Board and Counsel
Mike Talbot, Lost Pines GCD Board President and Members
James Totten, General Manager
District and Board Counsel
RE: City of Bastrop’s application for an Operating Permit to pump 2,000 ac-ft/yr of groundwater in the District
Dear President Talbot, Board Members, General Manager Totten and Counsel,
I write this letter as a concerned citizen, landowner and loyal constituent of the District. I am aware that the District’s Board is convening a special called meeting October 12, 2016, for the purpose of considering the pending application of the City of Bastrop (Bastrop) for an operating permit for 2,000 acre-feet/year of added water supply for Bastrop.
The District’s agenda for the meeting states that the Board’s consideration is limited to the record developed in a contested case hearing (Hearing) held before a state administrative law judge (ALJ) at the request of numerous landowners (Landowners) who are affected by the proposed permit.
I have followed Bastrop’s water planning efforts, including its efforts to identify and secure the long-term water supply needs of the city. I have also attempted to follow the progress of the pending permit application and have read the ALJ’s Proposal for Decision (PFD), as well as some of the papers filed with him by the parties and certain notices published by the District.
I am not passing judgment on whether the permit should be granted or denied from a hydrological standpoint. (This is not to say that I approve of all of the ALJ’s conclusions, based on his summary of the evidence presented at the contested case hearing; I simply don’t have enough information to make a judgment.)
I do have concerns about the administrative handling of the application by the District that I believe should be brought to your constituents’ attention and addressed by the Board. My interest in conserving and protecting the water supply of Bastrop and Lee counties is matched only by my desire to see “my” groundwater district get it right in their permitting decisions.
When the District’s permitting process is called to question by any landowner’s claim that his or her due process rights have been violated, it gets my attention. I have become aware of and have attempted to research what were reported to me or my colleagues as “irregularities” in how the Bastrop application was processed.
Because the ALJ’s PFD does not totally control the disposition of due process issues in a contested case hearing (by the ALJ’s own admission), I believe the Board is in a position, now, to revisit these issues prior to making a permit decision. Doing so would assure the public that the District plays fair with all of its constituents and strives to avoid even the appearance of impropriety or favoritism.
Specifically, I am concerned whether there was adequate prior notice under the District’s own duly adopted rules (Rules), to the proper affected landowners advising their interests might be affected by granting the permit and setting out the requirements for timely challenges to the permit (including without limitation landowners with exempt existing wells within a properly specified distance of the proposed Bastrop well, whether registered with the District or not). I am also concerned whether the District has fully complied with, and abided by, its Rules in processing the application. Consequently, I request that the Board consider delaying any action on the application to allow it to determine whether there has been strict compliance with the District’s Rules.
The questions I have boil down in laymen’s terms to two questions that are important to all constituents of the District:
· Do landowners in the District have a right to rely on the District and its Board, without prompting from outside the District, to abide by and enforce the District’s Rules (including in this case proper adjudication of variances from spacing rules, advance pump tests to demonstrate administrative completeness of applications, and adequate required notices to all potentially affected landowners)?
· Or, in the alternative, may the District make ad hoc decisions on what constitutes compliance with and enforcement of its Rules, leaving affected landowners simply in peril of losing their rights if they are not constantly vigilant, knowledgeable and proactive to identify and protect their own interests, without the ability to count on timely and substantive notice from the District or compliance by the District with its Rules?
Specifically, it is my belief that the plain meaning of the Rules required Bastrop to formally and timely seek a variance to the District’s spacing rules and have it adjudicated under the Rules as a condition precedent to proceeding with the application. Affected landowners (landowners with wells, whether registered or not, within 5,000 feet of a well that produces 1,500 gpm), were entitled to effective notice of the pending variance, because it is their interests the spacing rules are intended to protect.
The requirement to request and have adjudicated in accordance with the Rules, a variance to allow a 1,500 gpm well within 5,000 feet of other wells appears instead to have been handled in a series of ad hoc decisions by Bastrop and the District. In fact, Bastrop never sought a variance until the eleventh hour before the Hearing and long after all affected landowners could reliably have their protests adjudicated. The District’s position on the variance seems to have “evolved” over time into an argument that the initial notice of the public hearing on the application (which contained no reference to a request for variance, because no variance had been requested and would not be until months later) was sufficient to require landowners to request party status to protect themselves from the potential that a variance eventually would be requested.
It is my understanding that no notice of the pending variance was ever published by the District. However, the District and Bastrop seem to have successfully argued, at least to the ALJ, that the variance be incorporated into and adjudicated as part of the Landowners’ Hearing, even if all potentially affected landowners were never notified of the belated variance request and were not participants in the Hearing. The Hearing seems to have been a handy vehicle to handle the wrinkles introduced by the latecomer variance request.
I am sympathetic with landowners who might feel they were not well served by their public officials under these circumstances. I am even more sympathetic with landowners who may not even know to this day they had rights to protest their proximity to the Bastrop well, because of the absolute failure to notify them by the District. Despite the fact the ALJ went along with this problematic interpretation of the Rules, the District needs to avoid such unfortunate precedents and the accompanying appearance of impropriety.
As far as the required 36-hour pump test for a well the size of the proposed Bastrop well is concerned, similar concerns arise. The fact Bastrop’s test well collapsed and was unavailable for a completed pump test prior to the declaration by the then General Manager that the application was “administratively complete” did not effect a “written waiver” of the pump test by the General Manager. A “written waiver” of the pump test by the General Manager is in fact permitted under the Rules.
However, the failed well appears to have operated to effect a “written waiver” since, some months later, long after the application was declared complete, and then only because the issue was raised by third parties, the General Manager indirectly pronounced the test waived because, in effect, the “tail” --- the pronouncement of “administrative completeness --- had already wagged the “dog”, the requirement that a pump test be conducted to achieve completeness.
The pump test is a condition of initial “administrative completeness,” and the General Manager even testified at the Hearing he would not, in retrospect, waive the pump test. Yet the ALJ has now approved delaying the pump test until after final approval of the permit is granted.
It may be sufficient that the burden of risk is on Bastrop if the new well is not successfully completed or produces unacceptable interference with wells within the variance zone, but does the public have confidence in the way formal rule requirements have been handled? Will the public have confidence the variance for a high volume well close to other wells should have been granted, with no pumping data to support that conclusion? Is there confidence an unfortunate precedent has not been set for any future non-exempt pumper?
As you know, I often speak to the Board about issues of concern that arise, either on my own behalf or on behalf of local grass-roots organizations concerned with water issues, including the League of Independent Voters of Texas (LIV), Neighbors for Neighbors (NFN), and the newly-formed Simsboro Aquifer Water Defense Fund (SAWDF). I have written this letter to speak on my own behalf only. However, I am confident my concerns with the Bastrop permitting process would be of concern to LIV and NFN, and that, given a longer response time to brief them, their respective boards or authorized officers would authorize me to speak on their behalf.
My concerns have led me to decide to present the record of the Bastrop application for review by the Board of Directors of the Simsboro Aquifer Water Defense Fund, of which I am a founding Board member.
My purpose in asking for a review would be to determine whether there is any action SAWDF could and should take to intervene in any further proceedings on this permit. I do not have to wait for that review, however, to state unequivocally that SAWDF does not condone the deprivation of due process to any landowner (i.e. any probable owner of vested rights to the groundwater beneath them) who comes before the District, either to support or to object to any permit application.
SAWDF, whose website may be found at www.simsborowaterdefensefund.org, states its corporate mission as “to take action to protect and conserve the Carrizo-Wilcox Aquifer in central Texas, as well as the rivers, streams and springs that are nurtured by it, and to defend the rights of those who live over the aquifer and who seek to leave a legacy of sustainable water resources for future Texans” (emphasis added).
SAWDF was envisioned by its founders, who themselves are veterans of several organized efforts to protect our aquifers and the rights of those who depend on the aquifer, as an organization with substantial financial resources, ready to take legal and other actions to ensure the public right and our government’s duty to conserve and protect our aquifers in perpetuity, to preserve landowners’ access to their own groundwater, and to take action against abuse of our region’s groundwater resources and landowner rights.
My confidence level in this Board leads me to sincerely believe the Board will at least take the time to review its process and its decisions, and the precedents it may be creating, prior to taking final action on this permit. I also hope it will review its Rules and fix any that are inadequate or ambiguous to get the District’s important work done properly and above board.
Nothing I have raised is fatal to Bastrop’s ability to obtain its permit, and as a local provider and steward of our two counties’ water supply, its leaders should applaud the District acting with care where its constituents are concerned. And I sincerely hope my request for review to the SAWDF board will not be necessary.
As one of my trusted colleagues always says about groundwater districts and their important work, I am “hoping for the best.”
 Proposal for Decision, page 31-21; ALJ O’Malley notes he has limited authority to deal with constitutional issues which are more appropriate for judicial review, without necessity of a preliminary administrative ruling by the ALJ. He also notes that landowners who participate in the contested case do not have standing to raise due process issues on behalf of non-participating landowners.
 I know President Talbot, whose former employer is the City of Bastrop, to be of impeccable integrity, and he has consistently recused himself from actions by the Board on the permit application; however, there is always the need for the remaining Board to demonstrate utmost independence from any favoritism to its Board members who wear other “hats” that pose potential conflicts.
 I understand that, under the PFD, the after-the-fact pump test will require better published notice so that unaware landowners may learn of the need to have their wells monitored during the pump test and thus have their interests “adjudicated”, albeit by the General Manager. I question whether this effects good faith compliance with the District’s Rules.
 I acknowledge the regime the ALJ adopted to allow Bastrop and landowners the right to appeal decisions by the General Manager on the permitted pumping rates of the well after the well is drilled and the pump test is conducted. That process seems to be an unfortunate band-aid to fix the absence of data (due to no pump test) on which to base granting the variance in the first place.
Michele G. Gangnes
cc: Representative John Cyrier, District 17
Judge Paul Pape, Bastrop County
Judge Paul Fischer, Lee County
Ken Kesselus, Mayor, Bastrop
Ernest Bogart, President, SAWDF
Travis Brown, President, NFN
Calvin Tillman, LIV
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