Groundwater District votes to appeal court ruling in favor of landowners

 

Attorney and landowner Michele Gangnes on Jan. 17 urges the Lost Pines Groundwater Conservation District board not to appeal a court decision allowing a group of Bastrop County landowners to challenge a permit for Recharge Water to withdraw 15 billion gallons of groundwater annually from the Simsboro formation of the Carrizo-Wilcox Aquifer. MARY HUBER/BASTROP ADVERTISER Photo: Mary Huber
 

The Lost Pines GCD Board voted last week to appeal a recent ruling by a local state district judge in favor of four local landowners. Eight of the ten Board members were present, and only six members of the Board voted at the February 1 meeting.

Judge Carson Campbell ruled against the District last month. The District had argued that the landowners had no right to protest a permit issued in 2016 to water marketer End Op LP, now known as “Recharge”. After a 2014 hearing, the District issued export permits to End Op for up to 15 billion gallons annually from 14 Simsboro wells. J. Campbell reversed the permits and called on the District to hold a new hearing with the landowners as parties.

End Op backed the District against the landowners in J. Campbell’s court and is also appealing his ruling. At Thursday’s meeting, the District’s attorney stated End Op’s appeal would prevent the District from having a new hearing with landowners.

The landowners have argued the District erred in denying them a seat at the permitting table, based on Texas law that gives all landowners ownership rights in the groundwater under their land. One landowner, Bastrop-based Environmental Stewardship, also argued the District had failed to account for the potential negative impacts of End Op’s pumping on Colorado River flow in Bastrop County. Steve Box, that organization’s leader, reminded the Board in public comment that attorneys for both the District and End Op very aggressively argued against the landowners in court.

Board members engaged in uncharacteristic public dialogue with their lawyers and the audience prior to any voting. The District’s attorney indicated End Op wants to mediate the dispute, although she admitted the appellate court would not force the landowners to mediate. Some of the Board’s discussion centered around the necessity of appealing if the District wants to play a part in any appellate briefing or mediation.

Landowners present at the meeting termed “confusing” and “disturbing” some statements by the District’s counsel to the effect the District would be protecting “the public interest” by appealing.

President Talbot acknowledged that the Board had received, and were taking seriously, at least 50 written messages of support for the landowners. “We all know more permits will be sought to export our groundwater” said Michele Gangnes, a Lee County attorney and director of the Simsboro Aquifer Water Defense Fund. “I read many of those letters and heard the public’s comments. The message was pretty clear that the Board should not appeal as a strong signal the District agrees landowner property rights are part of the ‘public interest’ that must be protected by the District. Obviously, four Board members did not agree.”

The Board conducted two lengthy executive sessions before publicly entertaining any motions. A motion not to appeal was defeated 4-2. That vote included Lee County Director Herb Cook and Bastrop Director Clifton Seidel voting not to appeal. Lee County Director Mike Simmang then motioned in favor of appealing, which passed in the same 4-2 split vote. Lee County directors Larry Schatte and Billie Sherrill were not at the meeting, one Bastrop County director recused himself, and Board President Mike Talbot only votes to break a tie.

The Lost Pines GCD Board voted last week to appeal a recent ruling by a local state district judge in favor of four local landowners. Eight of the ten Board members were present, and only six members of the Board voted at the February 1 meeting.

Judge Carson Campbell ruled against the District last month. The District had argued that the landowners had no right to protest a permit issued in 2016 to water marketer End Op LP, now known as “Recharge”. After a 2014 hearing, the District issued export permits to End Op for up to 15 billion gallons annually from 14 Simsboro wells. J. Campbell reversed the permits and called on the District to hold a new hearing with the landowners as parties.

End Op backed the District against the landowners in J. Campbell’s court and is also appealing his ruling. At Thursday’s meeting, the District’s attorney stated End Op’s appeal would prevent the District from having a new hearing with landowners.

The landowners have argued the District erred in denying them a seat at the permitting table, based on Texas law that gives all landowners ownership rights in the groundwater under their land. One landowner, Bastrop-based Environmental Stewardship, also argued the District had failed to account for the potential negative impacts of End Op’s pumping on Colorado River flow in Bastrop County. Steve Box, that organization’s leader, reminded the Board in public comment that attorneys for both the District and End Op very aggressively argued against the landowners in court.

Board members engaged in uncharacteristic public dialogue with their lawyers and the audience prior to any voting. The District’s attorney indicated End Op wants to mediate the dispute, although she admitted the appellate court would not force the landowners to mediate. Some of the Board’s discussion centered around the necessity of appealing if the District wants to play a part in any appellate briefing or mediation.

Landowners present at the meeting termed “confusing” and “disturbing” some statements by the District’s counsel to the effect the District would be protecting “the public interest” by appealing.

President Talbot acknowledged that the Board had received, and were taking seriously, at least 50 written messages of support for the landowners.“We all know more permits will be sought to export our groundwater” said Michele Gangnes, a Lee County attorney and director of the Simsboro Aquifer Water Defense Fund.“I read many of those letters and heard the public’s comments. The message was pretty clear that the Board should not appeal as a strong signal the District agrees landowner property rights are part of the ‘public interest’ that must be protected by the District.Obviously, four Board members did not agree.”

The Board conducted two lengthy executive sessions before publicly entertaining any motions. A motion not to appeal was defeated 4-2. That vote included Lee County Director Herb Cook and Bastrop Director Clifton Seidel voting not to appeal.Lee County Director Mike Simmang then motioned in favor of appealing, which passed in the same 4-2 split vote. Lee County directors Larry Schatte and Billie Sherrill were not at the meeting, one Bastrop County director recused himself, and Board President Mike Talbot only votes to break a tie.