End Op’s application for Operating and Transport Permit – Permitted 9/7/2016

Predicted drawdown in the Simsboro Aquifer resulting from End Op’s pumping along with other permitted pumping. Click here for more information.

September 7, 2016: The Lost Pines Groundwater Conservation District’s Board of Directors granted Operating and Export Permits to End Op LP at its September 7th Special Called Board Meeting, See Agenda, Operating Permit, Well Monitoring Agreement, Order approving permit.

Despite strong public appeal for a reduced permit at the August 10th meeting the Board granted the 46,000 ac-ft/year phased in permit in a 7-1 decision citing the improvements this negotiated permit provide over the ALJ’s recommended permit.

Director Michael Simmang introduced the motion to grant the permit by saying the permit being considered by the Board provides a number of conditions that were not in the SOAH Judge’s (ALJ’s) recommendation. For example, the permit requires End Op to install monitoring wells and turn the wells over to the District for operation prior to starting any pumping. Also, the permit requires a phased-in, stair-step approach to pumping that must meet certain conditions, including the condition that each increase in pumping be approved by the District after evaluating the impacts of several years of pumping on the aquifer. After this series of amendments to the draft permit were accepted, Director Clifton Seidel seconded the motion. Billy Sherrill voted against the permit, David Fleming recused himself from the vote, and Larry Schatte was absent.

GRANTING PERMIT TRIGGERS LANDOWNERS’ APPEAL

September 27, 2016. Landowners Andrew Meyer, Bette Brown, Darwyn Hannah, and Environmental Stewardship (“Landowners”) filed a Motion for Rehearing and Request for Written Findings and Conclusions with Lost Pines Groundwater District on September 27, 2016. Click here for copy of motion for rehearing.

Landowners, including Environmental Stewardship, appealed the decision by the Board and the ALJ to deny them party status in the End Op contested case hearing with Aqua Water Supply Corporation held in 2013. Action on the appeal in Bastrop District Court has been on hold since earlier this year when jurisdictional questions arose and the parties agreed to delay action until after the Lost Pines Board took action on the permit. The September 7 decision to grant the permit cleared the way for the Landowners to continue to pursue their appeal. The appeal requests that the Landowners be granted party status and the matter be remanded back to the contested case hearing before a SOAH ALJ. The outcome of the appeal will have consequences for all landowners who have an interest in protecting the groundwater that they own beneath their land whether or not they own a well or plan to develop their groundwater. For more information see: Landowners’ Affected Persons Appeal and End Op CCH.

August 10, 2016: In an unexpected move, the Board punted the anticipated permit to a September meeting. After substantive public testimony from Environmental Stewardship, Simsboro Aquifer Water Defense Fund, the League of Independent Voters of Texas, Neighbors for Neighbors, Lee County Judge Paul Fischer and a half dozen landowners, the Board went into executive session. To everyone’s surprise, when they came out of executive session President Mike Talbot announced that the Board:

has instructed their attorney to get in contact with End Op’s attorney to discuss some concerns, and
wants to review some of the science before making a final decision.

Steve Box spoke for Environmental Stewardship (Box Comments), and Michele Gangnes spoke for the other three organizations (Gangnes Comments). Their message was one of disappointment that the Board, after many years when we stood by them, seem ready to abandon their landowner and citizen constituents by granting the proposed permit without taking action on ANY of the concerns raised by Environmental Stewardship and joined by the other three organizations (see additional background below).

Box also reiterated that “Environmental Stewardship and the other three landowners in this case should have been recognized as affected persons with regard to End Op’s Application. As such, if you are not going to deny the permit outright, then this matter should be remanded to SOAH after reversal of the ALJ’s decision that we were not affected persons.”

Box reminded the Board that “after improperly denying our request for party status, a non-contested case was allowed to be heard, and a flawed record made without cross-examination. As a result, the Applicant was able to load the record with flawed information that the judge took as factual at face value. So you were left to deal with a flawed recommendation by the administrative law judge. We are gravely disappointed that you have ignored our pleas. However, we continue to plead that you greatly reduce the quantity of water granted in this permit, or deny the permit and unwind the flaws that were introduced as a result of the SOAH process.”

Gangnes, a long-time water warrior reminded the Board that grass-roots organizing in the two counties to protect our aquifers was also instrumental in founding the Lost Pines District after the attempt by Alcoa in 1999 to come after groundwater for San Antonio. She reminded the Board of this history of support for the Board and of their duty and sole mission to protect the two counties’ water supply. She too demanded that the Board either deny the permit outright or send the four landowners back to the SOAH hearing to plead their case against the permit.The landowners provided personal stories of what is going on all over this country and world as water is bought and sold and winners and losers are created. Many were long-term residents who also have been following this application and felt let down that the Board was not protecting the domestic wells that they rely upon.

Darwyn Hanna, one of the protesting landowners, gave an emotional appeal to the Board on how important their role in protecting the aquifer is and how relying on monitoring might not be enough. President Mike Talbot acknowledged that the District had received a number of emails leading up to last night’s meeting, with the inference that many citizens are concerned about the End Op permit.

Finally, Lee County Judge Paul Fischer reminded the Board of his frequently stated caution to “go slow, just go slow”. Judge Fischer acknowledged the Board’s difficult job, especially with this permit that had gone before a state administrative judge who recommended the permit, but he told the Board his answer to selling water as comparable to selling mineral right is “we can’t drink oil and gas, once it’s gone [the water], it’s gone”. The Judge has always delivered a message of aquifer and water supply protection for the future of our two counties, and his words met with audience applause.

July 13, 2016. Environmental Stewardship provided written comments to Lost Pines Groundwater Conservation District Board regarding the End Op application to produce and export 46,000 ac-ft/yr of groundwater from the Simsboro aquifer on July 13, 2016.

ES’ comments provide an in-depth review of Environmental Stewardship’s concerns and how they have, or have not, been dealt with during the permit review process. The following highlights our most critical and urgent recommendation.

It is absolutely necessary and essential that the Board retain its right to consider this permit
under Section 36.113(d) when better tools and information are available or unreasonable
impacts become evident regarding the impact of End Op’s pumping on groundwater, surface water and other permits (See ES recommendations 1 and 2).

Under pressure from water marketers’, Section 36.113(d) was amended in the 84th legislative session to take away your right and duty to consider certain impacts of pumping upon renewal of this permit in five years time (See Section D. 1.).

The District, having failed to adequately consider the impact of pumping on surface water, groundwater, and other permits in the initial consideration of this permit, must include a Special Condition to retain its right to consider these impacts in future permit renewals (See ES Section C). To do otherwise abdicates your duty and responsibility to protect the property rights of landowners like ES and others who want to conserve and preserve their groundwater in place for future use, non-commercial uses, sustainability and environmental considerations (See ES Section A).

ES provided Lost Pines District with two reports by hydrologist George Rice. The first report is on the affects of End Op pumping on the Simsboro and other aquifers. The second reports on the impacts of combined pumping by End Op, Forestar, LCRA and Vista Ridge on the Simsboro and associated aquifers (See below).

Landowners Motion for Rehearing 9/27/16

ES letter to Lost Pines Board 7/13/16

ES comments to Lost Pines Board 7/13/16

Rice Report on End Op Pumping August 11, 2014

Rice Report on Combined Pumping March 22, 2016

Background

End Op filed an application with the Lost Pines Groundwater Conservation District (District) requesting operating and transport permits for 56,000 acre-feet of groundwater per year in 2007. After a District-imposed moratorium, consideration of permits resumed in 2013. Prior to the public hearing on End Op’s application on April 27, 2013, Aqua Water Supply Corporation (AQUA) requested a contested case hearing to challenge the application.

Environmental Stewardship and three landowners (collectively, Landowners) requested party status in the contested case hearing. The District’s Board of Directors (Board) referred the matter to the State Office of Administrative Hearings (SOAH) but deferred the decisions on party status for AQUA and the Landowners to the SOAH administrative law judge (ALJ) (SOAH Docket No. 952-13-5210). The ALJ denied party status to Landowners and granted party status to AQUA on September 25, 2013.

Landowners appealed the ALJ’s denial of party status to the Lost Pines Board requesting that the ALJ’s decision be reversed. Following the Boards denial of Landowner’s request, Landowners appealed in state District Court in Bastrop (See Landowners’ Affected Persons Appeal). The District Court judge has not made any ruling on these arguments.

Status (June 27, 2016)

Lost Pines Groundwater Conservation District’s (District) Board of Directors heard public comments on End Op’s proposed Operating Permit and Monitoring Well System Construction and Maintenance Agreement related to End Op’s application for 46,000 acre-feet per year of groundwater pumping from the Simsboro Aquifer at the June 15 regular Board Meeting (Item 6 on Agenda). Public comments on the Monitoring Well Agreement will be heard at the July 20, regular meeting. No action was taken at the June 15 meeting.

Written comments for both the Operating Permit and the Monitoring Well Agreement are due by July 13, 2016. It is not clear when the Board will take up the End Op Permit and Agreement for action. We urge that you attend and make oral comments and/or let your presence be your comment. It is best if your oral comments are also provided in writing – the District does not record and transcribe these meetings.

Environmental Stewardship believes the permit is premature and that the Special Conditions in the Operating Permit are inadequate to protect surface features like a) the Colorado River and its tributaries, b) the trees and terrestrial vegetation, and c) the shallow domestic wells in the Simsboro and related aquifers (Calvert Bluff, Hooper and Carrizo aquifers). The amount of pumping requested further jeopardizes the desired future conditions (DFCs). (Click here for ES’s Oral Comments).

1. The permit is premature because the District and the Applicant (End Op) have not yet complied with the Texas Water Code law that is designed to protect surface features, shallow wells, and guide permit decisions.

Section 36.113(d)(2) requires that “before granting or denying a permit …the district shall consider whether the proposed use of water … unreasonably affects existing groundwater and surface water resources or existing permit holders“. This law has been on the books for over 18 years, yet groundwater districts continue to ignore this law in making final permit decisions.
- Existing groundwater resources includes other aquifers such as the Carrizo, Calvert Bluff, and Hooper aquifers.
- Existing surface water resources includes rivers, streams and springs (which would include springs and seeps that hydrate near surface soils that support terrestrial vegetation.
- Existing permit holders include exempt domestic wells that are registered with the District.

Neither the District nor the Applicant have done such analyses as are required by this section of the Texas Water Code. If such analyses have been done, they have not been made public during these administrative proceedings.

2. The permit is inadequate because it does not contain Special Conditions that a) allow future adjustments to the permit based on the impacts listed in 1 above as better information become available, and b) provide mitigation for wells in aquifers other than the Simsboro aquifer. Furthermore, the draft Operating Permit ignores groundwater availability modeling (GAM) that predicts that:

End Op pumping in the quantities requested in the Simsboro Aquifer will draw water from other aquifers thereby causing significant drawdown in the Carrizo, Calvert Bluff and Hooper aquifers.
- These drawdowns will extend into other adjacent counties and adjacent groundwater districts as far away as Gonzales, Lavaca, Colorado, Austin, Grimes and Walker counties.

End Op pumping in the quantities requested will decrease the amount of groundwater that currently flows from the aquifers and into the Colorado River, streams and springs, thereby reducing their flow – especially during drought conditions – in Bastrop and Lee counties.

Contrary to what groundwater hydrologists claim, the model predicts that the groundwater pumped will come from the sources listed below. The impact is to cause irreversible damage to surface waters and shallow wells with little or no recourse provided in the Special Conditions. The sources, in order listed, are:
- First, the reduction in outflows to surface waters and features
- Second, from leakage into the Simsboro from the other aquifers and from other counties,
- Third, and last, from storage that is in the deep sections of the aquifers.

Special Condition (4) that defines the terms used in the calculation to determine whether or not End Op can advance to the next level of pumping does not include a factor that considers future changes in the “rate of change” that are predicted by the groundwater model.
- ES modeling predicts that this factor could be off by 15% or more.
- Differences in this calculation would likely result in granting an increase in pumping to the next phase level that would lead to a greater exceedance of the desired future conditions.

3. The permit further jeopardizes the desired future conditions (DFCs) for the aquifers, the District, adjacent Districts, and the region (see sidebar below)

The model predicts that End Op pumping, especially when combined with other permitted pumping in the region (baseline pumping + End Op pumping + Forestar pumping + LCRA pumping + Vista Ridge pumping), will cause the desired future conditions of the Simsboro Aquifer to be exceeded by 200-300 ft of drawdown.
- This level of exceedance will trigger “pro-rata” curtailment of all permitted pumping. However, once contracts, pipelines and communities dependent on the water are in place, we believe it is very unlikely that such curtailment will be possible.

Environmental Stewardship RECOMMENDATIONS and REQUESTS

1. In order to comply with Section 36.113(d)(2), the Operating Permit should contain a condition that states that: once the ongoing GAM improvements are completed, the District, working with GMA-12, will conduct studies to predict and consider:

a. The impact of the permitted pumping on surface waters and terrestrial habitats,

b. The impact of permitted pumping on hydrologically connected aquifers

c. The impact of the permitted pumping on domestic wells in hydrologically connected aquifer,

d. The impact of the permitted pumping on currently adopted DFCs.

e. Changes that may be made to the terms and conditions of the Operating Permit to accommodate the above findings.

2. Special Condition (13) on mitigation should be amended to include the “Simsboro, Calvert Bluff, Carrizo, and Hooper aquifers” in order to protect registered domestic wells in the communicating aquifers.

3. Special Condition (4) calculations should be revised to include a factor that considers future changes in the “rate of change” that are predicted by the groundwater model.

4. The monitoring well agreement should contain a requirement that groundwater-surface water monitoring wells be included to provide real-time data on the impact of pumping on the Colorado River and its tributaries.

5. The Operating Permit should contain “living document” language to convey that this is a work in progress and subject to future revisions.