Forestar Granted Rehearing on Application

In a reversal, Forestar’s Request for Rehearing was GRANTED in a Special Called Board Meeting. 

Our message to the Board:   

Nothing has changed, STANDING STRONG!  We have your back.  

In a special called board meeting held on November 4th, the Lost Pines Board of Directors heard arguments from Forestar’s attorney that, for the first time in public, laid out their proposal for a “phase-in staging” of permits over a 25 year period.  This proposal is, in the words of their attorney, “an effort to avoid further conflict and potential litigation”.  Forestar has made their position clear:  Obtain permits for 45,000 acre-feet per year … or … litigate.  The board voted to grant a re-hearing, but the date has not been set.    

In documents obtained by Environmental Stewardship, it is clear that Forestar has been pressuring the District behind the scenes to accept its “phase-in staging” proposal since as early as May 9, 2013, six days prior to the Board’s decision to limit the permit to 12,000 acre-feet per year.  In its “privileged & confidential” letters to the District on May 10, before the vote to limit the permit to 12,000 acre-feet per year, and again on July 2, Forestar argued privately to the District for the phase-in permit.  What Forestar is ignoring is the Board’s credible decision, through analysis of science and law, that 12,000 acre-feet per year is the amount of water that is available from the Simsboro aquifer without exceeding the desired future conditions (DFC), which the Board is, by law, required to protect.  Forestar simply wants it their way … or … litigate, regardless of the impact on the District’s regulatory authority or the aquifer.      


Nothing has changed to justify a change in the Board’s decision at a rehearing.  The “phase-in staging” proposal was on the table BEFORE the decision to limit the permit to 12,000 acre-feet per year and was simply revised in the July 2nd letter to reflect the permit quantity authorized by the Board.


Forestar is attempting to dissuade the Board of legitimate public concerns through behind-the-scenes secret shenanigans.  “This overture,”says attorney Edmond R McCarthy, Jr. in his July 2nd letter, “reflects an effort by Forestar to assist the District Board in addressing the unsupported, but recognizably difficult political position facing the Board because of very real public fears.”  “By compromising … Forestar hopes to provide the District and its Board with tools to demonstrate to the public the Districts’s ability to regulate Forestar’s permit and Project and to protect both the aquifers within its jurisdiction and the public interest.”   

To which we respond:  

1.   The Board, by its decision to limit the Forestar permit, has rightly exercised its regulatory authority. Through its permit decision, the Board has permitted water for beneficial use from the aquifer to the extent that such water is available without harming the aquifer or public interest.  Whether the desired future conditions are exceeded now, or through a “phase-in staging”, they are, none-the-less, exceeded. The Board has been given, by the Legislature, both the responsibility and authority to manage the groundwater resources of Bastrop and Lee counties in a manner that protects the desired future conditions that have been adopted by the District.     

2.   The “tools” provided by Forestar DO NOT resolve our concerns that the aquifer will be over-pumped if Forestar is granted a 45,000 acre-feet per year “phase-in staging” permit. The permit is the only point in the regulatory process that allows the District to deal with ONLY the Forestar permit when limiting or reducing pumping in the aquifer.  Once permitted, as stated in Forestar’s May 10, 2013 letter, “when aquifer or climatological conditions dictate that a scientific foundation exists for the District to impose nondiscriminatory curtailment or proration orders on all permit holders, Forestar will cooperate.”   Now is the time to set appropriate limits on the Forestar permit that do not tie the hands of the District in the future.  Forestar simply wants to take from other permit holders, what is not currently available to them.   

3.   If Forestar truly recognizes the regulatory authority of the District Board, as they say, and is truly interested in a “sustainable water initiative”, as they say, they will accept the studied judgement of the District Board.  They will cease and desist in their hostile attempts to take by threat and by force what they have not been able to obtain by due process.  Though they have litigation options, as a good corporate citizen, they also have an moral and ethical obligation to listen to the needs and desires of our communities, not just the they have invested in or have contracts with, and accept the decisions of our District Board without seeking judicial remedies that are harmful to our public interest.    


Forestar’s Contract with Hays County  

 The driver behind litigation. 

As reported earlier, Forestar has entered into a “water reservation” contract with Hays County Commissioners Court for 45,000 acre-feet of water per year, even though Forestar only has a permit for 12,000 acre-feet per year.  Hays County is paying Forestar $5 million over five years to reserve water Forestar does not have to sell, and Hays County is encouraging and funding what now becomes Forestar’s and hays County’s hostile attempt to get the additional 33,000 acre-feet per year of water by SUING Lost Pines in state district court.  

Click here for a copy of the contract. 


To those who support the Lost Pines Board: