Judge Hears Arguments on Landowners’ Right to Protest Groundwater Export, Ruling to Come

BASTROP – A state district judge in Bastrop on Wednesday heard arguments for and against the contention that four landowners are entitled to a new hearing because they were wrongfully excluded by the Lost Pines Groundwater Conservation District from participating in a 2013 administrative hearing.

The 2013 hearing resulted in a permit  to water marketer End-Op LP (now known as Recharge Water) that allows massive amounts of groundwater to be pumped and exported from Lee and Bastrop counties. The Oct. 18 hearing was part of a legal challenge to that permit.

Judge Carson Campbell ruled in favor of the landowners from the bench Wednesday on the question of whether he even has the authority to review the District’s decision to exclude them. A ruling on the landowners’ right to protest the permit is pending from Judge Campbell.

Three individual landowners and landowner Environmental Stewardship, a non-profit conservation organization, are asking the court to allow them a new hearing, to present their evidence of the harm the permit would inflict on them and their property, as well as the region’s aquifer. Environmental Stewardship also seeks to present evidence on negative impacts on the rivers, streams and springs that depend on groundwater. “We want the opportunity to counter erroneous evidence entered into the record during the sham contested case hearing regarding the massive amounts of water available in the aquifer and the impacts of pumping on surface waters”, said Steve Box, Executive Director of Environmental Stewardship.

The permit  allows Recharge Water to pump and export up to 46,000 acre-feet of water annually (approximately 15 billion gallons per year) from 14 wells in the Simsboro formation of the Carrizo-Wilcox Aquifer, for export to Hays, Travis and Williamson counties.

Counsel for the District joined the water marketer’s attorneys in oral argument against the landowners (or “those folks” as he disparagingly called them as he addressed the judge) on all issues, claiming none of the landowners are currently pumping groundwater, or at least are not pumping in the “right“ formation of the aquifer, and therefore their property rights were not compromised by the District’s actions or by the permit itself.

The legal team for the Lee and Bastrop county landowners countered these arguments. Landowner attorney Don Grissom, who has ties to Bastrop County, was especially passionate when he denounced the District’s and End Op’s “condescension” and “arrogance” in dealing with residents of the two counties, who are entitled to have the District protect their water supply.

Water marketers have bought rights to pump groundwater from thousands of acres in Lee, Bastrop, Milam and Burleson counties, with an eye on selling groundwater to San Antonio and other cities along the I-35 corridor.

Representatives of a citizens group organized to protect groundwater in Central Texas say they are optimistic Judge Campbell’s ruling will affirm the right of Texas landowners to protect the groundwater under their land from negative impacts of permits even if they have chosen to conserve their groundwater and therefore do not have wells.

“Landowners, conservationists and property rights groups across the state are watching this case closely,” said Michele Gangnes, a Lee County attorney and director of the Simsboro Aquifer Water Defense Fund, which is providing resources to the landowners. “This could set an important precedent for the protection of groundwater and property rights across Texas.”