Party status granted in LCRA case

The Elgin Courier: December 26, 2018

On Wednesday, a number of landowners, water companies and others gathered in the Bastrop Convention & Exhibit Center to request a contested hearing in the case against the Lower Colorado River Authority’s (LCRA) permit to drill wells in Bastrop County during a preliminary hearing held by the Texas State Office of Administrative Hearings (SOAH).

The LCRA bought the Griffith League Boy Scout Ranch in northeast Bastrop County in 2015. In February of 2018, the LCRA applied to the Lost Pines Groundwater Conservation District (LPGCD), the entity responsible for managing the groundwater below Lee and Bastrop counties, for a permit to build eight wells on the property to drill into the Simsboro formation of the Carrizo-Wilcox aquifer and pump 25,000 acre-feet, or about eight billion gallons, of water per year. The Simsboro formation is a part of the Carrizo-Wilcox aquifer, which winds through eastern Central Texas from Mexico to Louisiana.

However, this application for the permit concerned many local landowners, water advocates and entities near the wells, who are afraid pumping that much water, in addition to the water permitted to other entities, might draw down the aquifer’s water level and leave their wells dry. During a public hearing on September 26 held by the LPGCD, over a hundred citizens spoke out against the permit.

According to an LCRA spokesperson, the LCRA does not anticipate water production from the wells would have a detrimental impact on the Colorado River, the Simsboro formation or the other formations in the Carrizo-Wilcox aquifer.

Those against the application, such as Steve Box, founder of local environmental organization Environmental Stewardship, fear otherwise. According to Box, drawing the 25,000 acre-feet of water from the Carrizo-Wilcox aquifer, in addition to tens of thousands more acre-feet from other permits, will lower the water level in the aquifer, dropping the pressure and reducing the amount of water brought to the surface by springs created by the water pressure in the aquifer. This loss of pressure could also cause the Colorado River to lose water into the aquifer, he said.

The different formations in the aquifer also communicate, or exchange water, because the layers between the formations are made of sand, so depleting the Simsboro formation would likely affect the rest of the aquifer, Box also said. He added taking so much water from the aquifer would not be sustainable because the Carrizo-Wilcox aquifer recharges, or replenishes its water, slowly because of these sand layers, which are less permeable than the cave-like layers of the quickly-recharging Edwards aquifer.

“The recharge estimated for the Carrizo-Wilcox aquifer is a very, very small percentage of what is being pumped out of the aquifer,” Box said.

The case was sent to SOAH, which set up Wednesday’s preliminary hearing to determine which parties who requested a contested case hearing would request standing in the case.

The list of parties seeking to protest the wells at the SOAH hearing included Aqua Water Corporation, which supplies water to much of the region and operates wells in the Carrizo-Wilcox aquifer; Recharge Water, formerly EndOp, a water supplier that had also recently requested and was awarded a water permit for the Carrizo-Wilcox aquifer after a case of its own; Environmental Stewardship; the City of Elgin, which operates wells for municipal water in the Simsboro formation; a group of over 50 landowners represented by attorney Donald Grissom; and around ten more individual people or households who are representing themselves. The people who were granted party status as individuals are allowed to join a group at a later time.

Everyone who requested standing in the case were granted party status, meaning they would be directly affected by the permit in question and can participate in the case.

Earlier this year, a dispute over party standing occurred in EndOp’s case for seeking permits from the LPGCD for wells.

According to Michele Gangnes, lawyer and board member of the Simsboro Aquifer Water Defense Fund, the administrative law judge for that case thought any landowners should have standing whether or not they had a well or produced water; however, four landowners, including Environmental Stewardship, were told they could not have party standing. An appeals court ruled against granting party status to the landowners on a technicality, but the decision didn’t rule on the merits of the landowners’ case for party status.

“(In the LCRA case) these are the same types of landowners; some of them have Simsboro wells, some of them have wells in other formations,” Gangnes said. “So we’re testing whether a landowner owns his water in place, or whether there’s all these other qualifiers on that.”

In this matter, an LCRA spokesperson said, LCRA does not object to any party wanting standing being granted party status.

Because of the number of individual landowners who requested and granted party status, Michael O’Malley, the SOAH administrative law judge assigned to the case, encouraged the individuals to consider joining another group, such as Grissom’s group, or create their own group, in order to make the process of exchanging documents between the parties less complicated.

Whenever any motion is filed, all parties must send copies of the associated documents to every other party. In addition, individuals who are not within a group must represent themselves in the case.

Now that the individuals, groups and entities interested in being a part of the case have been granted party status, the next step is filing testimony and gathering evidence before holding a hearing in Bastrop. The judge will then make a recommendation to LPGCD based on the existing law and the evidence presented, then the LPGCD board will make a decision on what to do about LCRA’s permits.

Parties in the case must file an affidavit by February 8 to indicate their position on the case and argue how the wells would affect them to retain their party status. Any party may object to another party’s standing until February 19.

O’Malley first proposed the week of June 24-28 for the multi-day hearing. However, Eric Allmon, representing Environmental Stewardship, said a June hearing would be too early for this case and would not provide enough time for discovery of evidence, considering the number of protesting parties; Grissom and Recharge attorney Paul Terrill agreed.

After a ten-minute recess for the parties to determine when might be a good time for the hearing, the parties agreed to hold the hearing during the week of October 15-22, with a prehearing conference to be held on October 10 if needed.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s