LCRA Permit Hearing Moves to Next Stage
Lost Pines GCD still grappling with LCRA permit
In a September 2018 public hearing, the directors of the Lost Pines Groundwater Conservation District heard uniformly negative public comments on the Lower Colorado River Authority’s application for a mega-groundwater project in Bastrop County. LCRA wants to drill eight closely-spaced Simsboro wells on the historic Griffith League Boy Scout Ranch in Bastrop County.
The utility was then seeking to augment supply in its multi-county water service area.
The District’s General Manager Jim Totten presented draft operating and export permits to the board that granted LCRA’s full request to pump and export up to 8 billion gallons per year (25,000 acre-feet per year) from the Simsboro. The export permit prohibits use of the Colorado River to transport and deliver the water.
The GM’s draft permit allows pumping in three phases of incremental production after LCRA first pays to install monitor wells for the District’s monitor well network.
Production would gradually increase to the full 25,000 AFY when LCRA satisfies “special conditions” for moving to the next phase.
Over 125 landowners who filed formal written protests of the permit were joined by Aqua Water Supply Corporation; the City of Elgin; Bastrop-based Environmental Stewardship, a Colorado River watchdog group; and private water marketer Recharge Water LP (formerly known as End Op).
Because LCRA objected to several of his special permit conditions, GM Totten joined the protestants in asking for a formal administrative process resembling a trial, to resolve objections to the permit.
The District referred the case to the State Office of Administrative Hearings (SOAH), where administrative law judges (ALJs) decided who would be parties to the hearing. Over thirty of the initial landowner protestants were admitted as parties, along with the organizational parties and Totten.
Six-day hearing is held
Thirteen months later, all protestants and LCRA vigorously presented their evidence at the SOAH hearing through lawyers and expert witnesses, except for landowners Elvis and Roxanne Hernandez who represented themselves.
The other landowners were represented by the same team of Austin attorneys, and have received support from many local donors and the Simsboro Aquifer Water Defense Fund.
The presiding ALJs took the case under advisement on October 22, 2019, after six full days of trial that included testimony of seven expert witnesses, LCRA’s EVP of Water, Totten and various party representatives, including Bastrop landowner Andrew Wier who represented the landowner group.
2020 decision expected
The judges will determine relevant facts and legal principles, and make formal recommendations to the District’s board as the final decision makers on the permit.
The ALJs’ “Proposal for Decision” is not expected until sometime in the spring of 2020, after several rounds of briefing by the fourteen lawyers who participated in the hearing.
Although they are not bound by the ALJs’ recommendations, the District’s board has to have a good reason to deviate from SOAH’s proposed decision.
In the second of this series of articles next week, the Giddings Times and News will explore what happened in this precedent-setting contested case hearing, which could very well end up on appeal in the State Supreme Court.
Phased permit history
Much of the evidence presented by the parties in the LCRA hearings centered around issues raised by the District’s draft permit for “phased-in production” of groundwater.
Phased or “laddered” permits are an innovation for mega-projects that the Lost Pines District pioneered, starting with water marketer Forestar (USA) Real Estate Group, Inc.’s permit.
In early 2014, Forestar sued the District after the District reduced Forestar’s application to pump in north Lee County from 45,000 to 12,500 AFY in May, 2013.
The out of court settlement of that lawsuit gave Forestar a revised permit for 28,500 AFY, using three phases of gradual increases in production. Permit conditions that must be met for increased production are similar to those imposed in Recharge Water’s 2018 laddered permit for 46,000 AFY.
Recharge was called End Op LP when it settled a contested case at SOAH with Aqua Water Supply in 2016.
The judge in the End Op contested case first denied party status to Environmental Stewardship and three other landowners, and then allowed the contested case to proceed even though Aqua and End Op had settled their differences.
He relied on the settlement with Aqua to recommend to the District a reduction in End Op’s permit from 56,000 to 46,000 AFY. He also recommended the settlement terms that reduced total pumping in Bastrop County to no more than 35% of total pumping, and that required End Op to fund mitigation for its impacts on Aqua and other qualifying Simsboro wells in the District.
The Districts’ board accepted the 46,000 AFY permit amount but continued negotiations of other terms of the permit. In 2018, at the end of appeals of the denial of party status to the four landowners, the District issued another laddered, three-phase permit to Recharge/End Op for fourteen wells.
The permit includes the two mitigation funds, and also required End Op to drill and produce from four of seven Lee County wells before drilling any of seven Bastrop wells, apparently in lieu of including the 35% production limit.
3 phases of pumping
The phased-in production in LCRA’s draft permit is similar but not identical to the three phases in the Forestar and Recharge permits. The first phase of all three permits requires the permittee to contribute new monitor wells to the District before pumping any water.
Calculations embedded in each permit theoretically allow the District to trigger reductions in overall permitted pumping. Essentially, monitoring data collected during the phases is intended to help anticipate unreasonable impacts of pumping on the aquifer.
Forestar permit may end up being sold
Neither Forestar nor Recharge have found customers for their water, and no monitor wells or production have resulted under either permit. Forestar is known to be looking for a buyer for its permit.
The District’s most recent meeting agenda indicated Forestar may have found a buyer, but no further information was revealed at the October board meeting.
LCRA existing permit is not laddered
LCRA currently has another Lost Pines permit that is not laddered. The utility may pump up to 6,500 AFY on a rolling average basis, with up to 10,000 acre-feet available in drought conditions, from five Simsboro wells on the premises of its Bastrop Lost Pines Power Plant.
The District’s board did limit LCRA from using the water anywhere but in its cooling pond at the plant.
Next week: Arguments
Next week’s article will explore the wide-ranging arguments made at the SOAH hearing to challenge LCRA’s entitlement to pump another 25,000 AFY near the power plant. The proposed well-field is also near existing Aqua wells and proposed Recharge wells, and is also on the doorstep of the 600-plus residences in the Circle D Subdivision.
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