LCRA struggles to support its permit request as Landowner takes the stand
The Landowners who are aligned as parties in the contested case hearing on the proposed LCRA permit, other than our Bastrop neighbors Elvis and Roxanne Hernandez who are going it alone, have been dubbed the “Brown Landowners” by the administrative law judges (ALJs) for purposes of the hearing.
The Brown Landowners commenced presenting their case last Friday afternoon.
The Brown Landowners are represented by Austin attorney and former Paige resident, Don Grissom, and Bastrop municipal judge and Austin attorney Charles Carver. As the cartoon character Pogo might have said, “They are us”!
If Lee County Simsboro well owner Hugh Brown, the alphabetical “Brown” of the Brown Landowners, had been able to attend the hearing Friday, we think Hugh would be the first to rename the group the “Wier Landowners”.
Andy Wier and his spouse Mary live very close to the proposed LCRA well-field at the historic Griffith League Ranch, where LCRA seeks to annually tap the Simsboro for 8 billion gallons of groundwater. The Wiers rely on a Simsboro well for their sole source of water supply.
On Friday, Andy was the lone Brown Landowner to take the stand. Taking the stand was a calculated risk because Andy would be subject to cross-examination by all the other parties. We need not have worried.
A decision was made to have Andy put a face on the landowner group for the judges and other parties, including LCRA, the Lost Pines Groundwater Conservation District, Environmental Stewardship, Aqua Water, the City of Elgin and Recharge Water (aka End Op), along with the Hernandezes. Aqua, Elgin and Recharge oppose the permit’s impacts on their present and future wells, as do our Brown Landowners, and Elvis and Roxanne.
All parties to the hearing were required to file their written testimony prior to the hearing and were given a pass to being cross-examined by other parties if they didn’t offer additional live testimony at the hearing.
Andy was willing to take the stand, and when he did, he literally took over the hearing during his cross-examination.
As those who know him will appreciate, Andy’s demeanor is disarming bordering on ingenuous. Before LCRA and anyone else who might not want the Landowners to be noticed by the judges reacted, Andy had seized the opportunity to present a credible (and incredible), passionate, and well-documented soliloquy. It was a moving showstopper.
Once he started, apparently no one dared object to his testimony, and he spoke for at least twenty minutes – or more it seemed. He was on a roll of interweaving evidence he had studied, not just read, in hundreds of pages of documents revealed by LCRA and other parties in the “discovery” phase of the litigation, liberally interspersing his testimony with a passionate personal perspective of what he viewed as behavior that could kill an aquifer.
Andy even excused the obviously poorly informed LCRA Executive Vice President of Water, John Hofmann, as being the victim of his underlings’ apparent failure to fully inform him, while putting him back on the hook for personally negotiating with the Circle D Home Owners’ Association in questionable faith. He ended his testimony with a plea to work together --- LCRA would reduce the permit request and neighboring landowners would work with LCRA to institute a state of the art monitoring system to protect the aquifer.
The judges themselves seemed to join the audience in being totally caught up in what he had to say. It was as if opposing counsel, especially LCRA’s team of three lawyers, realized that there was no opening to interrupt him in a way that would not irritate the judges.
As a result, he was allowed to say many things that should, in a righteous world, have great impact on the finders of fact and law.
So much so that, in what some seasoned administrative lawyers described as unprecedented, the SOAH judges inquired of the other parties, at the end of Andy’s testimony, “have you all considered mediation?”
It seemed obvious that Andy had managed to summarize the evidence presented by all the parties that something was amiss with this permit request, for varied and often unrelated reasons but amiss nonetheless, in a way that begged the judges to signal that LCRA’s clear right to its permit might not be so clear.
It remains to be seen what clothes will remain for the Emperor to wear.
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