LCRA Contested Case
This section will be updated for current developments --- check the HOME page often, where we will update for new entries in this section. In particular, we will update for any decision by the state administrative law judges on whether to recommend this permit to the Board of Directors of the Lost Pines Groundwater Conservation District
Photo: LCRA Landowner Protestant Team and Environmental Stewardship Team
LCRA Contested Case ~~Public Hearing Pending
Contested case ruling by Administrative Law Judges returned to Lost Pines Board of Directors for final decision;
judges recommend that District issue LCRA's full permit with a few important additions.
Public Hearing required before Board acts on whether and on what terms to issue permit
We expect the hearing will occur in 2020, as soon as the pandemic-caused suspension of in-person meetings can safely be lifted. SAWDF will post notice of the hearing date as soon as we know it.
The decision from the Administrative Law Judges at the State Office of Administrative Hearings was rendered earlier this year, but the Lost Pines board has postponed the holding of a hearing several times since then, although they could have scheduled it to occur by ZOOM or some other service.
We appreciate the board agreeing to the wishes of a majority of the parties that everyone's rights to due process should be preserved by holding an in-person hearing instead of a virtual hearing (where parties, their counsel and members of the public would have to participate remotely via internet, telephone or in writing). We thank them for that consideration!
Lost Pines Board will revisit hearing date at December 16 board meeting
The next time the board meets, on December 16 at 7 p.m. via a ZOOM virtual meeting, they will consider setting a hearing date. The agenda for that meeting is expected to also include reports and possible action on the RECHARGE WATER (formerly, End Op) and FORESTAR permits --- we think it would be wise to "attend" this meeting. Go HERE on Friday, December 11 --- the agenda will be posted on the District's website on that date. Remember, you can participate by telephone only if you are unable to ZOOM --- the agenda will have instructions for ZOOM and telephone.
NO action will be taken on the LCRA permit on December 16, other than the possible setting of a hearing on the permit. If you wish to comment to the Board on any subject NOT on the agenda, or on any specific item ON the agenda, the agenda itself (to be found at the above link on Dec. 16) will give instructions.
Below this post are other posts or media releases that have taken place in the course of the
LCRA Contested Case.
SAWDF Press Release re Contested Case Proposal for Decision
SIMSBORO AQUIFER WATER
P.O. Box 931
Elgin, Texas 78621-0931
~~Working for a legacy of aquifers that last forever~~
April 3, 2020
For Immediate Release
Contacts: Michele Gangnes 512-461-3179 firstname.lastname@example.org
Travis Brown 512-560-0341 email@example.com
Andy Wier 512-426-5002 firstname.lastname@example.org
Judges Recommend Approval of LCRA’s
Groundwater Pumping Plan
BASTROP – The Lower Colorado River Authority’s plan to pump and sell
groundwater in Central Texas came one step closer to being realized this week.
In an 82-page report, two State Office of Administrative Hearings (SOAH) judges recommended that the Lost Pines Groundwater Conservation District issue the LCRA a permit to annually pump and export up to 8 billion gallons of Simsborogroundwater from Bastrop County.
The judges issued their advisory opinion in favor of issuing a phased production
permit and instituting a well-monitoring system after a six-day contested case
hearing last October in which six different parties aired their objections to the
The final decision on whether to issue a permit and on what terms, lies with the
board of directors of the groundwater district, which must hold a public hearing
prior to making its decision.
Aqua Water Supply, the City of Elgin, Recharge Water (formerly, End Op), Elvis
and Roxanne Hernandez, and Environmental Stewardship, together with 30
aligned local well owners, who were organized and supported by the Simsboro
Aquifer Water Defense Fund (SAWDF), all protested issuance of the permit.
“The landowners who participated in the SOAH hearing essentially represented all
landowners in Bastrop and Lee counties who object to the threat these megaprojects
pose to the entire Carrizo-Wilcox aquifer and their communities,” said
Andrew Wier, who testified for the landowners at the hearing and whose
Simsboro well’s viability will be adversely affected by massive groundwater
The judges decided that LCRA’s computer modeling of the project’s impacts on
water resources and on other permit holders in Bastrop and Lee counties
sufficiently demonstrated the project will not unreasonably impact the aquifer,
the Colorado River, or existing permit holders.
The judges recommended aquifer monitoring wells and phased-in pumping to
allow the district to protect against any real-world effects the computer modeling
did not predict.
However, they found that the District does not have authority under its own rules
or under state law to unilaterally impose mitigation requirements on the LCRA for
harm done to other wells in the district.
Wier, who also is a director of SAWDF, said SAWDF, the landowners it represents
and their legal team are exploring all options to address issues raised by the
SAWDF and Environmental Stewardship did support two of the judges’ findings.
The judges said the proposed permit should include the right of well owners who
participated in the hearing to also participate in the LCRA permit renewal process,
including whether monitoring data requires any permit amendments.
The judges also found the potential for impacts on the Colorado River and other
surface waters “caused by the LCRA and District-wide pumping” justified the
recommended surface water monitoring systems and plan, which were requested
by Environmental Stewardship, a Bastrop-based conservation group.
“Adoption of the recommended monitoring plan will bring all pumping in the
district under a broad umbrella of surface water protection,” said Steve Box,
executive director of Environmental Stewardship.
Over the next two months, the groundwater district’s general manager will
respond to any objections to the judges’ decision raised by the other parties. The
judges will then reconsider and finalize their recommendations before handing
them off to the district’s board of directors.
Because of the coronavirus pandemic, it’s difficult to predict when the
groundwater district will hold the required public hearing and then deliberate on
the permit, Wier said.
SAWDF was formed in 2016 by veterans of several local groups who have battled
to protect Texas aquifers for two decades.
Environmental Stewardship Scores Partial Victory ~~ go HERE to read this important story --- our two organizations are completely aligned on needed protections for aquifers and surface water resources.
LCRA Permit Pending
SOAH Orders and link to Docket
SOAH Orders --- rulings by the Administrative Law Judges in the LCRA Contested Case, which went to hearing in October, 2019
Contested case now in hands of SOAH Judges
The District, the Brown Landowners (that's "us"), Recharge (End Op), Aqua, City of Elgin, Environmental Stewardship and Landowners Elvis and Roxanne Hernandez, along with LCRA, have filed their final briefs after the 6-day hearing, pictured here
Protestants of the permit include:
Landowners represented by Grissom & Thompson LP and supported through SAWDF ("Brown Landowners")
Elvis and Roxanne Hernandez, Landowners
Environmental Stewardship, Guardian of the Colorado River
Aqua Water Supply Corporation
City of Elgin
Recharge Water LP
Lower Colorado River Authority is the Permit Applicant and also a Protestant of the permit proposed for them.
Lost Pines Groundwater Conservation District, acting through its General Manager, is the Permitting Authority. The GM is a party to the contested case in order to defend his proposed permit.
The Board of the Lost Pines Groundwater Conservation District is the ultimate decisionmaker on whether and in what form to issue a permit.
The District's General Manager proposed to give LCRA the permit they want, subject to incremental increases in pumping up to 25,000 AFY. Increased pumping would be allowed over a period of years if unreasonable impacts don't occur as a result of each level of pumping.
The LCRA protested this form of permit because it doesn't recognize the LCRA's absolute right to pump 25,000 AFY of Bastrop County groundwater as soon as the permit is issued.
After the judges render their Proposal for Decision, the District's Board will convene a PUBLIC HEARING with live public comment
before it reaches its decision on the permit.
~~ STAY TUNED to SAWDF for developments (and start working on your comments -- comments may be submitted in writing or at the hearing --- we'll tell you when to submit). ~~
ORDER NO. 5 RULING ON PARTY STATUS
Bold type and Font color changes added by SAWDF editor for emphasis.
Editor's Note: THIS RULING DISPOSES OF THE DISTRICT'S and RECHARGE'S OBJECTIONS TO LANDOWNERS, WHETHER THEY ARE GRISSOM LANDOWNERS OR UNREPRESENTED LANDOWNERS -- some Grissom Landowners are "in" and some are "out" --- see red font for easy identification.
SOAH DOCKET NO. 952-19-0705
APPLICATIONS OF LOWER COLORADO RIVER AUTHORITY FOR OPERATING AND TRANSPORT PERMITS FOR EIGHT WELLS IN BASTROP COUNTY, TEXAS
BEFORE THE STATE OFFICE
ORDER NO. 5 RULING ON PARTY STATUS
On February 19, 2019, the General Manager of the Lost Pines Groundwater Conservation District (General Manager) and Recharge Water, LP (Recharge) filed objections to certain claims of party status. On February 19, 2019, the Lower Colorado River Authority (LCRA) filed a response to party status; however, it stated that it does not object to the party status of any entity or individual who filed an affidavit. Aqua Water Supply Corporation (Aqua), City of Elgin (Elgin), Elvis and Roxanne Hernandez, and the Grissom Landowners filed replies to the General Manager’s and Recharge’s objections to party status.
The General Manager objected to the party status of the following: Mark and Penny Whiting, Tommy Claiborne, Sue Pardue, Felix and Beverly Villareal, Douglas and Dorothy Marousek, Carol and Ernest Pease, Tiger Davis, Donna Nelson, Maria and Paul Tuttrup, Sandi Schneiderman, Sue Ellen Christiansen, Esther Martinez, Stephen Shaw, Becky Jean Nichols, Paul E. Cox, Keith and Judy Everett, Anne and Donald Ross, Jason Sims and Paula Hanks, David and Elizabeth Babin, and Kimberly and James Walker. The General Manager argues that these individuals show nothing more than mere ownership of real property with attendant groundwater rights and generalized complaints about impact that might occur from the drawdown of water if LCRA’s permits are granted. LCRA contends that the generalized claims do not establish a personal justiciahle interest required by Chapter 36 of the Water Code,1. ‘
Recharge challenges the party status of certain landowners that it believes failed to demonstrate that the granting of the LCRA permits may cause actual and imminent injury to their legally protected rights, Like the General Manager, Recharge contends that certain landowners have not established that they have a registered or permitted well near the proposed LCRA wellfield that is completed or authorized to be completed in the Simsboro formation. In addition to the landowners that the General Manager objects to, Recharge also objects to the party status of Michael MacLeod, Marshall and Peggy Hilbum, and JC Jensen.2 Recharge also objects to the party status of Kermit Heaton, John Watson, Suzanne Ragan, and Roger P. Fuller.3 Recharge also objects to the party status of Michael and Tammie Hagerud, Philip and Deborah Alley, Steve and Suzannah Amable, Arthur Norman Aronsen, III, Hollie Denton, Claire and Michael Wunderlin, Kathnln Rogers, Larry and Irene Campbell, Newton and Fran Ellis, Roger Fleming, John Ricke, Jr., Lewis Sharpe, III, Catherine and Charles White, IV, Dave Teuscher, Dr. Christian and Bette Abee, and Richard Martinez.4 Recharge also objects to the party status of Elvis and Roxanne Hernandez.5 Additionally, Recharge objects to the party status of Philip Cook.6 Recharge further objects to the party status of the Pines and Prairies Land Trust c/o Melanie Pavlas (the Trust) and Circle D Civic Association c/o Jeannie Jessup (the HOA).7 Finally, Recharge objects to the party status of Aqua and Elgin.8 2 Recharge asserts that these individuals do not have wells or, if they plan to drill a well, they have not indicated which aquifer their potential well Will produce from.
Footnote 1 Application of End 012., LP. for Well Registration, Operating Permits, and Transfer Permits, SOAH Docket No 9527135210 (Sept. 25, 2013) (OrderNo. 3), SOAH DOCKET NO. 95271970705 ORDER NO. 5
2 Recharge asserts that these indivrduals do not have wells or, if they plan to drill a well, they have not indicated
which aquifer their potential well Will produce from.
3 Recharge asserts that these individuals have wells on their property but their wells draw from the Queen City aquifer;
therefore, LCRA’s wells Will not likely cause a drawdovm at their wells.
" Recharge contends that these individuals have not shown that their wells are in the Simsboro formation Recharge
maintains that an assertion that aquifers are connected is too tenuous to show that any drawdown in other aquifers will
5 Recharge claims that the mere assertion by Elvis and Roxanne Hemandez that the Calvert Bluff aquifer and the
Simsboro aquifer are interconnected is too speculative to show standing
6 Recharge argues that Mr. Cook’s wells are fifteen miles away from the LCRA well field and will likely experience
7 Recharge contends that the Trust has not established that its wells are in the Simsboro aquifer. Recharge asserts
that the HOA has not shown that any drawdown will have an impact on the HOA’s lake
3 Recharge claims that Aqua and Elgin have not shown that their wells are in the Simsboro aquifer and the impact
of the drawdown on their wells
The mandatory standing test is set out in section 36.415(b)(2) of the Texas Water Code. This test, which embodies constitutional standing principles, requires that groundwater districts to limit participants in hearings on well permits to those who have standing to participate, requiring the district to:
"[L]imit participation in a hearing on a contested application to persons who have a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest that is within a district's regulatory authority and affected by a permit or permit amendment application, not including persons who have an interest common to members of the public." 9
In City of Waco v. Tex. Com ‘n on Environmental Quality, the Court of Appeals in Austin determined “an affected person” must meet the following requirements to have standing to request a contested case hearing before Texas Commission on Environmental Quality:
(1) an “injury in fact” from the issuance of the permit as proposed—an invasion of a “legally protected interest” that is (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical”;
(2) the injury must be “fairly traceable” to the issuance of the permit as proposed, as opposed to the independent actions of third parties or other alternative causes unrelated to the permit; and
(3) it must be likely, and not merely speculative, that the injury will be redressed by a favorable decision on its complaints regarding the proposed permit (i.e., refusing to grant the permit or imposing additional conditions).10
Therefore, to prevail on a request for party status, the landowners must show a concrete, particularized injury-in—fact that must be more than speculative, and there must be some evidence that would tend to show that the legally protected interests will be affected by the action.11
The following parties have not demonstrated a particularized injury-in-fact that is not common to the general public because they do not have a well that draws groundwater, and owning land and the groundwater under the land is not sufficient to show a particularized injury. 12
The parties that have not established a justiciable interest are: Mark and Penny Whiting, Tommy Claiborne, Sue Pardue, Felix and Beverly Villareal, Douglas and Dorothy Marousek, Carol and Ernest Pease, Tiger Davis, Donna Nelson, Maria and Paul Tuttrup, Sandi Schneiderman, Sue Ellen Christiansen, Esther Martinez, Stephen Shaw, Becky Jean Nichols, Paul E. Cox, Keith and Judy Everett, Anne and Donald Ross, Jason Sims and Paula Hanks, David and Elizabeth Babin, and Kimberly and James Walker. Therefore, their requests for party status are denied. James Allen Tate’s request for party status is denied because he failed to file an affidavit. Although these individuals will not be parties, they will be allowed to make public comment at the hearing on the merits.
9 Tex Water Code § 36 415(b)(2) District Rule 15 1(E)(2)(d)
10 City ofWaco v. Texas Com ‘n on Environmental Quality, 346 S.W,3d 781, 802 (Tex App-Austin 2011, pet. denied), rev '11 an other grounds, 113 S W 3d 409 (Tex 2013)
11 City ofWaco, 346 s W.3d at 305.
12 End OP., L.P. v. Meyer, No. 03.13.00049—cv, 2018WL 4102013 at *3 (Tex,
App iAustin 2013, no pet )
All other individuals and entities have demonstrated a particularized interest sufficient for party status. However, for the individuals that currently do not have a well on their property (but have stated they plan to drill a well), their testimony, if filed, will have limited weight unless they have drilled a well by the time of the hearing or have concrete written plans to drill a well. For those individuals/entities that draw groundwater from other aquifers or formations, their testimony, if filed, will be also be given the appropriate weight in light of the distance from LCRA’s wells.
SIGNED March 5, 2019. ~~~
MICHAEL J. O’MALLEY and LAURA VALDEZ, ADMINISTRATIVE LAW JUDGES .
STATE OFFICE OF ADMINISTRATIVE HEARING