Hearing continued by Groundwater Board
At the end of a three-hour public hearing in Bastrop last Thursday, the Lower Colorado River Authority went home without a permit to pump and export up to 25,000 acre-feet per year (AFY) of Bastrop County groundwater. The permit has been pending at the Lost Pines Groundwater Conservation District since 2018.
It remains pending, after the Board consulted in private with its attorney Thursday night, and then voted to continue the hearing to an unspecified later date.
Lee County Director Sheril Smith made the motion, explaining the Board needed time to consider legal arguments raised at the hearing and to obtain additional information.
District General Manager Jim Totten issued a proposed “laddered” permit in 2018 that would allow incremental increases in pumping when certain benchmarks are reached. That move resulted in hundreds of landowner protests and a contested case hearing in late 2019 at the State Office of Administrative Hearings (SOAH).
The LCRA, Totten, and a group of organizations and individuals who formally opposed the permit, spent six days in October 2019, in the SOAH hearing, presided over by two state administrative law judges (ALJs).
Decision favors LCRA
In early 2020, the District’s Board of Directors, as the final decision maker on the permit, received the ALJs’ Proposed Final Decision (PFD).
Although the ALJs recommended the full permit be issued to LCRA in Totten’s “laddered” form, they declined to require his permit provisions to which LCRA was opposed.
In fact, the PFD included a set of Findings of Fact and Conclusions of Law that were almost exclusively drafted in favor of LCRA’s position.
The PFD did not even come close to satisfying the permit opponents, judging from the legal arguments they offered Thursday night.
LCRA threatens to sue
The Board had resisted scheduling the required final public hearing on the permit during the pandemic. In December 2020, LCRA threatened to sue them unless they took up LCRA’s permit by the end of January 2021.
The District decided to convene the hearing on January 28 in a “hybrid” form, due to COVID rules. Only Board members and two representatives of each party to the contested case met face to face, while the public was required to participate virtually, on the internet or by telephone.
The Board’s attorney admonished Board members and the public that any comments by the public would not be considered by the Board or included in the official record.
Well failures raised
Public comments uniformly opposed both the permit and the decision to hold a public permit hearing “without the public”. The comments were also critical of considering a mega-permit at a time when . ongoing well failures are occurring in Lee and Burleson counties.
Comments delivered by the Simsboro Aquifer Water Defense Fund (SAWDF) called out LCRA’s claim that any well impacts to local domestic and livestock wells would be the landowners’ fault for not drilling deep enough wells to protect themselves from LCRA’s pumping.
District has no choice?
At Thursday night’s hearing, LCRA’s legal counsel argued that SOAH judges do this kind of case every day, making this an easy case for the Board because the judges had done all of the analysis.
The LCRA attorney told the Board the opponents were unnecessarily complicating a permit that had clearly been shown by the evidence to satisfy the Water Code’s requirements, with no basis under state law for the Board to stray from the judges’ analysis and recommendations.
Lawyers for the organizational and individual parties rose one by one to dispute that conclusion, with fundamental challenges to the quality of both the ALJs’ analysis and LCRA’s evidence.
The opponents launched a coordinated attack on LCRA’s application and the LCRA’s attempt to box in the District on the basis of what they considered a flawed PFD by inexperienced judges.
The judges’ expertise in water law later became the subject of one of only two questions asked of LCRA by Board members.
Don Grissom, attorney for the so-called “Brown Landowners”, told the Board in his lead-off presentation opposing the permit, that the two ALJs had never heard a water case before the LCRA hearing.
The Brown Landowners are a group of about thirty Bastrop and Lee county landowners who were consolidated into one party in the contested case.
Grissom and the other opponents’ counsel all focused on the argument that there was no hydrological or other evidence that supported pumping as much as 25,000 AFY from the site chosen by LCRA for eight Simsboro wells.
Instead, they argued in various ways that the PFD was flawed, and that the permit should either be denied, sent back to SOAH for further work, or issued in a much lesser amount.
They also rejected LCRA’s reliance on the state’s groundwater availability model (GAM) as the best available science to establish that LCRA’s well-field would not have unreasonable localized effects ont groundwater and surface water resources, and existing permit holders. They argued the GAM predicts only regional, not localized effects, of pumping.
Aqua, the City of Elgin and Recharge Water, all of whom hold permits for public water supply, argued they would all incur substantial financial costs to mitigate the damage LCRA’s pumping would cause to their wells.
Although Environmental Stewardship agreed the permit should be reduced, its counsel expressed the critical need to require a monitoring well network in any permit, to gather data on expected unreasonable impacts of LCRA’s pumping on surface water resources, specifically the Colorado River system.
Counsel for GM Totten presented their arguments, followed by LCRA’s rebuttal arguments. Only Lee County directors Mike Simmang and Billy Sherrill directed questions to LCRA’s counsel.
Director Simmang asked whether the claim that the two SOAH judges had no water experience is true. Counsel Emily Rogers seemed flummoxed by the question, and said she did not know the answer. She called the claim a “red herring” to induce the Board to re-weigh the clear evidence favoring LCRA.
The Board’s attorney drilled down on whether opposing parties would be satisfied and stop protesting if an 8,000 AFY permit were issued.
The three water suppliers urged the permit should be denied altogether, as did the Brown Landowners. However, those parties said they could live with an 8,000 acre-foot permit, so long as mitigation was addressed. Environmental Stewardship agreed with the lesser permit, but continued to press for the overriding concern that surface water monitoring be required.
Counsel for opponents ultimately seemed content to let issues such as monitoring of aquifer formations and mitigation to be worked out later if the Board were to decide to reduce the permit.
The Board emerged from a lengthy private session with its attorney, quickly passed the vote to continue the hearing to an unspecified date, and adjourned for the evening.
Three Board members are ineligible to vote on the LCRA permit. One Board member is an Aqua employee and two are members of the Brown Landowners group. Nevertheless, the Board may not take official action without the approval of six of the remaining seven voting Board members.