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Recharge Water Temporarily Rebuffed by Lost Pines Board

Giddings Times & News, Thursday, December 17, 2020

Gangnes: Citizens look to board to give fair shake

On its website, the Lost Pines Groundwater Conservation District acknowledges its sole mission is to protect the water supply for the residents of Lee and Bastrop counties, with the district being the “only tool” under Texas law to protect that water.

The district’s November 18 board meeting left some district observers wondering if the district’s staff and consultants are on the same page with the board when it comes to accomplishing that mission.

To their credit, the board members declined to act on Recharge Water’s requested changes to their permits that were described to the board as simply “non-controversial” and “ministerial”. After public discussion and a private briefing by their lawyers, the board collectively decided they needed more information before re-visiting the matter at the December 16 board meeting.

3 pumping permits

The agenda focused on permits issued by the district to Recharge Water and Forestar Real Estate Group, and on the Vista Ridge project located just across the Yegua Creek from Lee County, under permits issued by Post Oak Savannah Groundwater Conservation District.

The Giddings Times & News previously reported that the board has responded to Vista Ridge’s pumping of 50,000 acre-feet per year from the Carrizo and Simsboro aquifers in Burleson County with a plan to form a network of privately owned monitor wells to collect pumping data, initially in notheastern Lee County.

The board will finance the expenses of equipping the wells in its 2021 budget.

Not only Vista Ridge pumping in a neighboring groundwater district but also the specter of future pumping in the Lost Pines district puts the district’s mission squarely into focus.

Recharge and Forestar hold permits in the Lost Pines district that would add almost 75,000 acre-feet of production in the Simsboro, when and if they find customers, while LCRA wants to pump another 25,000 acre-feet in Bastrop County.

Public now confused

Recharge’s permit was a potential action item on the November 18 agenda. Forestar was only on the agenda for a status report on a pending sale of its permit and will be discussed again in December.

The meeting agenda was published on December 13, apparently the same day board members received additional information that is not shared publicly.

The agenda called for “possible (board) action regarding the request of Recharge Water, LP for reissuance of Operating and Transport Permits to reflect a March 9, 2023 expiration date and renewal of Transport Permits” associated with its permits for fourteen Simsboro wells.

Local landowners Andrew Wier and Michele Gangnes attended the virtual meeting as board members of the Simsboro Aquifer Water Defense Board. SAWDF advocates on behalf of the rights of private landowners to conserve and protect their groundwater and the state’s aquifers.

After the meeting, Wier commented that the wording of the agenda made it impossible for the public to understand what action was expected of the board.

He noted that the original expiration dates for the Recharge operating and export permits, as published on the district’s website, were January 1, 2022 and September 21, 2019, respectively. He also pointed out the district’s rules don’t seem to allow permits to be “reissued”.

After the meeting, Wier commented that the wording of the agenda made it impossible for the public to understand what action was expected of the board.

He noted that the original expiration dates for the Recharge operating and export permits, as published on the district’s website, were January 1, 2022 and September 21, 2019, respectively. He also pointed out the district’s rules don’t seem to allow permits to be “reissued”.

Recharge permit might be extended for more than a year

Most importantly, it was impossible to tell if the board was being asked to extend the permit expiration dates by 432 days from January 1, 2022, or if the permits had already been extended by the district, Wier said.

Apparently, the board may have agreed, because they tabled the matter and asked their lawyers to prepare additional information “to address the agenda item.”

Wier went on to credit Lee County Director Mike Simmang for echoing the public’s exasperation with getting short notice of a matter that might involve landowners’ due process rights.

Simmang pointedly asked the lawyers to provide the new information more timely, at least a week before the December meeting.

Board's role not clear

Prior to the board’s executive session, the district’s lawyer seemed to say the permit extension had already been agreed to, or at least was already binding on the district.

She cited a temporary period during which the permits had been suspended and then reinstated as a result of litigation between the district and landowners who protested Recharge’s permits. According to the lawyer, that suspension had lasted 432 days when the litigation ended in 2018.

She and Recharge’s lawyer were apparently asking for a “reissuance” of the permits to simply synchronize them and reflect the March 9, 2023 expiration dates, rather than asking for the board to specifically deliberate on the extension.

At one point, she stated board approval was only being sought in “an abundance of caution”, without further explanation before the board retired to executive session.

In 2018, the same lawyer had asked the board to “ratify” board action taken previously concerning that same Recharge litigation. The board unanimously did so, possibly without being told the previous divided vote tally probably had been deficient to support official action.

Changes in the law

Wier acknowledged after the meeting that a new law which took effect on September 1, 2019 would have allowed Recharge to have requested, in advance of September 21, 2019, an extension of its export permit to match the January 1, 2022 operating permit expiration date. However, he said he believes archived board minutes do not reveal any such request.

He also noted there have been other changes in the Water Code affecting permits, amendments of permits, and renewal of permits, but that neither the Water Code nor the district’s rules seem to contemplate “reissuance” of a permit or require extending a permit under the present circumstances.

“I have been attending their meetings and supporting the Lost Pines board for twenty years, and I know that our state’s Rule of Capture, also known as the ‘biggest straw wins rule’, is often at odds with the board’s ability to protect our local aquifers and water supply”, Gangnes said.

She went on to say that when landowners look to the “district” to protect their groundwater, they are actually looking to the board members themselves to give them a fair shake, as their representatives appointed by the county judge or commissioner’s court.

“Local landowners who depend on their household and livestock wells often feel they have drawn the ‘shortest straw’ when it comes to state water policy, especially when it looks like private water marketers are able to game the system. This looks like one of those times the board needs to say no to the marketers,” Gangnes said.

The December 16 agenda and instructions for attending the meeting are published at lostpineswater.org/AgendaCenter.