[UPDATE] Hearing on LCRA’s Application for Groundwater Permit

Hearing on LCRA’s Application for Groundwater Permit – October 15-18 – Bastrop Convention Center, Bastrop, Texas.

A brief summary of Days 1-4 of the hearing.

Steve Young, witness for LCRA, testifying that he is not an expert on surface water matters.

What follows is a summary of what happened at the first four days of the hearing.  The focus is from a perspective of Environmental Stewardship (ES) and the Landowners’ cases and does not reflect the cases of the water supply companies — AQUA Water, City of Elgin, Recharge Water — or LCRA and Lost Pines Groundwater Conservation District (Lost Pines District). 

Highlights of Day 1 (Tuesday):  Monday started with the Administrative Law Judges (ALJs) Rebecca S. Smith and Ross Henderson ruling on some unsettled filings that included Environmental Stewardship’s supplemental filing of new data and information based on a new pumping file obtained from GMA-12.   Based on the objections of LCRA and Lost Pines District, the ALJs did not allow ES’ supplemental filing to be admitted into the record.   Fortunately this action did not diminish our case. We were simply trying to bring the most currently available data into the record to enhance our case.  More on the impact of this ruling is in the Friday summary that follows. 

In another matter, the order of cross-examination was changed as a result of the fact that ES and Brown Landowners’ witness George Rice was unable to appear in the order previously agreed due to an unexpected death in his family.  The parties agreed to move his testimony to follow Recharge Water and prior to Lost Pines District. See ordering of cross-examination below.  

The order of presentation of direct cases was agreed as follows:

  1. LCRA
  2. Elvis and Roxanne Hernandez (Hernandez)
  3. AQUA Water Supply Corporation (AQUA)
  4. City of Elgin (Elgin)
  5. Recharge Water LP (Recharge)
  6. The Brown Landowner Group (Brown Landowners)
  7. Environmental Stewardship (ES)
  8. Lost Pines District General Manager (Lost Pines District GM)

Please keep in mind that a transcript of the hearing will be available following the hearing and all comments regarding the testimony provided below are from memory and notes.  As such, comments are not a complete and thorough analysis. Also keep in mind that each party will submit written summary arguments to the ALJs after the transcript comes out and, therefore, the hearing is focused on cross-examination of witnesses in order to establish facts that will be important in making summary arguments in each party’s case.  

OPENING STATEMENTS

The hearing proceeded with opening statements by the parties.  

LCRA counsel Emily Rogers opened with the assertion that LCRA is requesting an amount of water that is consistent with what they have a right to produce and that they have followed all the rules of the District in filing their application. 

Lost Pines District’s counsel Natasha Martin claimed that the General Manager and the Directors are the “protectors” of the groundwater resources.   

Elvis Hernandez — representing himself and his wife Roxanne — followed with a very well articulated summary that described how the Lost Pines District is not protecting their interests and rights of ownership in the groundwater under their property in this case.   He asserted the concept of “correlative rights” and the “fair share” doctrine to conclude — to an arousing applaud from the audience — that there is no groundwater protection for landowner’s domestic wells”. The ALJ quickly chided the audience that such outbursts from the audience would not be allowed.   

Charles Carver, co-counsel for the Brown Landowners — as they are referred to by the court — asserted that the Lost Pines District and water marketers (including LCRA) use the conservation mandate of the Conservation Amendments to the Texas Constitution in a biased manner to justify consumption, rather than conservation, of groundwater.   

Marisa Perales, gave the opening statement for Environmental Stewardship asserting that the freshwater flows in the river are diminishing — especially during drought conditions — and that the Lost Pines District and LCRA have the responsibility to protect the historical relationship between surface water and groundwater interaction in order to protect the freshwater inflows to the Colorado River and its tributaries.   

AQUA Water, City of Elgin, and Recharge Water, each independently, but collectively argued that LCRA is asking for more water than what hydrological analysis of the aquifer can reasonably supply and that such pumping will have unreasonable impacts on their wells.  

CROSS-EXAMINATION OF WITNESSES

The proceedings of the remainder of day one and days 2-4 were primarily related to cross-examination of the expert and fact witnesses for each party.  Their testimony on the merits of the case were submitted as prefiled testimony in the months and weeks prior to the hearing. As such they are sworn in, confirmed that the testimony being offered into the record is their testimony and that their opinions have not changed.  With that, and no objections from the other parties, their testimony is admitted into the hearing record and the expert witness is passed to the other parties for cross-examination on their prefiled testimony.  

LCRA’s fact witness John Hofmann was first on the stand.  Brown Landowner’s counsel Don Grissom provided a grueling cross-examination of Mr. Hofmann where he was able to enter into evidence several exhibits that were found in LCRA’s document dump of over 700 files.  These documents show that, based on work done by LCRA’s own hydrologist in 1998 the LCRA had knowledge and quantification of the amount of communication between the Simsboro and Calvert Bluff aquifer formations that resulted in drawdown of the Calvert Bluff aquifer when pumping in the Simsboro.  Furthermore, based on LCRA’s consultant evaluation of the property in 2016, the recommended production on the Griffith League Ranch was 10,000 ac-ft/yr because pumping of 20,000 ac-ft/yr would result in a drawdown that would go below the top of the aquifer.   

These new exhibits and others by Brown Landowners demonstrated that LCRA knew that 25,000 ac-ft/yr would exceed the capacity of the aquifer at the Griffith League Ranch location and became key exhibits cited by other parties throughout the next four days of cross examination.  

Environmental Stewardship’s counsel Marisa Perales next established that LCRA is currently involved in a Texas Water Development Board (TWDB) funded project to install a pilot surface water-ground water monitoring system at a site on the Colorado River.   

As an aside, and not mentioned in the hearing record, this pilot study is in response to ES’ urging that the Colorado and Lavaca Basin and Bay Stakeholder Committee provide the TWDB with the scope of work and request for funding of this project. This project is a follow-up on the revisions to the New Groundwater availability model (New GAM) that is discussed at great length in the cross-examination of expert witnesses.   

Highlights of Day 2 (Wednesday):  Roxanne Hernandez did a great job of getting the ball rolling on cross-examination of LCRA’s hydrologist — zeroing in on important landowner questions that other parties built upon.  Environmental Stewardship’s counsel guided that same expert — Van Kelly — into admit that he is not an expert on surface water. Brown Landowners’ counsel continued to point to LCRA’s lack of evidence to support their application.

Environmental Stewardship’s counsel, in examination of LCRA’s other expert — Steve Young — likewise was able to get that expert to also admit that he is not an expert on surface water, thereby moving its case forward by demonstrating that the LCRA did not even have a surface water expert testifying on surface water-ground water interactions.   

Highlights of Day 3 (Thursday):  The day started out with the ALJ’s imposing time limits on all lawyers in order to finish by the 22nd — no one but the District and LCRA seemed to be in favor of limiting the parties’ time to cross-examine witnesses.  In a case like this — one that is more than likely to go up on appeal no matter who “wins”, and the appeals will probably go to the Texas Supreme Court — it is important to each party to make their “record” before the ALJ’s as complete as possible for appeal.

Although the ALJ’s imposed time limits, the District or LCRA, it’s not clear, initiated the idea of extending the hearing by at least two days if SOAH’s costs are paid — either by all the parties chipping in or someone who wants it badly enough paying for it. It was announced mid-day that the first dates an extension could happen would be first or second week of December.  More action on this is taken on Friday.

Cross-examination of LCRA’s expert witness Steve Young continued with the Lost Pines District’s counsel on calibration and limitations of the New GAM.  

After the close of examination of the LCRA’s witnesses, Environmental Stewardship’s counsel “moved for judgment”.  A move for judgment is a legal action that was taken on the basis of LCRA’s expert witnesses not being experts in surface water matters. LCRA has the burden of proof to dispute Environmental Stewardship’s claim that the Colorado River and its tributaries will be damaged by the LCRA’s pumping.  Under the rules of such legal proceedings in a judicial court setting, absent an expert witness on surface water matters, it is impossible for LCRA to rise to the burden of proof standard and the case can be dismissed on the basis of judgment.   

The ALJ’s denied Environmental Stewardship’s motion on the grounds that they do not have the same authority in an administrative process but noted that the motion had been submitted.  This is important because, upon appeal to a judicial court, that judge will have the ability to take action on the motion. As mentioned before, this is why it is important to get facts into the record during the hearing. 

The rest of the day was spent cross-examining the City of Elgin and AQUA water, witnesses.   

Highlights of Day 4 (Friday):  After the ALJ’s announce that the venue for the October 21-22 hearing would be moved to the SOAH hearing room 402 in Austin (See ES’s change of venue email and Facebook posts), Recharge Water’s witnesses were cross-examined well into the afternoon.   

Finally, Brown Landowner’s witness Andrew Wier was offered for cross-examination.  When City of Elgin’s attorney Troupe Brewer started questioning Andy (as he preferred to be called) was ready:  Andy brought down the house, literally!  At the end of his testimony, right in the middle of the hearing, the ALJ asked an unprecedented question at that juncture of a contested case hearing — with a clear message intended for LCRA, we believe, she asked “Have you all thought about asking for mediation at SOAH?” Usually, the opportunity for mediation might be mentioned at the beginning or end of a hearing. 

Learn more on his testimony at SAWDF News.

We took that to mean that LCRA needs to rethink how the judges are hearing the parties’ evidence that the “Emperor Has No Clothes” when it comes to LCRA’s case for 25,000 acre-feet/year of water. 

Andy was followed by Keith Copeland, one of our two expert witnesses (George Rice will testify tomorrow). 

Keith did a great job of matter of factly — and effectively — resisting attempts by LCRA to show that his views were too simplistic and not expert enough — Keith was actually making it very clear to the ALJs that LCRA hasn’t done the work to support this permit, thus reinforcing Andy’s testimony.

At about 4:00 in the afternoon — with a 5:00 recess for the weekend looming — Environmental Stewardship was able to bring its surface water witness, Joseph Trungale to the stand. Because Mr. Trungale had done additional work after his prefiled testimony was filed in June, he stated that he wanted to make it clear that under oath his responses would be based on additional foundational information — but that his opinions have not changed.  With that, LCRA initiated a stream of objections. After more than 10 minutes of wrangling over the objections Trungale’s prefiled testimony was finally entered into the record and he was passed for cross-examination.   

However, shortly after Brown Landowners’ counsel Don Grissom began his cross-examination, again LCRA’s counsel launched another string of objections making a number of claims against the testimony.   Once it became clear that this line of objections was not going to be resolved without a great deal of time and arguments, Mr. Trungale left the stand.  

With only about 30 minutes left, Lost Pines District’s General Manager James Totten took the stand.   

WHAT TO EXPECT NEXT

Monday, October 21, the hearing will resume at the SOAH offices in Austin, Texas at 8:30 am and likely extend into the evening.  Please see our earlier emails and Facebook postings on this matter.    

After cross-examination of Mr. Totten we expect Mr. Trungale and Mr. George Rice, Environmental Stewardship’s expert witnesses, to return to the stand for cross-examination.  

To all of you, thank you for your interest and support.   I hope to see many of you at the hearing.

 

Steve Box

Board President and Executive Director

Environmental Stewardship

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