Proposal for decision expected spring of 2020
A contested case hearing before two Administrative Law Judges on LCRA’s application for a permit to pump up to 8.15 billion gallons of groundwater annually from underneath Bastrop County ended on October 22, 2019. Environmental Stewardship and the landowners were successful in making their arguments before the judges who are expected to render an opinion next spring … likely late April or May.
After hearing six days of testimony, Administrative Law Judges Rebecca Smith and Ross Henderson of the State Office of Administrative Hearings set a procedural schedule that lays out the next steps of what has been a year-long process. The eight parties in the case have until December 20th to file their final closing arguments and until January 31, 2020 to file written rebuttals or replies.
The administrative law judges will make a recommendation in the form of a “proposal for decision” to the Lost Pines Groundwater Conservation District’s Board of Directors. Lost Pines District is the local government entity that manages groundwater resources, regulates pumping, and sets desired future conditions in Bastrop and Lee counties.
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Although the district has final authority over the issuance or denial of permits, its decision could be appealed by any of the parties to the state district judicial court in Bastrop.
Soon after LCRA applied for a permit for eight wells in Bastrop County last year, over 100 landowners from Bastrop and Lee counties — who fear that such mega-pumping would cause their private water wells to be damaged or run dry — registered their opposition to the permit. Environmental Stewardship, a local guardian of the surface waters and the aquifers, with concerns that over-pumping the aquifer would have negative effects on the Colorado River and its tributaries, also filed its opposition. Other Simsboro groundwater users, such as AQUA Water Supply, the city of Elgin and Recharge Water, and the Lost Pines District’s General Manager also protested LCRA’s permit applications.
Our Case is Strong!
Environmental Stewardship, through its legal team and expert witnesses, put on a solid case and stood its ground as LCRA and Lost Pines District attempted to diminish and discredit our science and our experts. Marisa Perales, co-council for Environmental Stewardship delivered the opening statement.
George Rice, our groundwater hydrologist, provided the best available groundwater science to demonstrate that groundwater pumping — and LCRA’s requested pumping — will likely cause the Colorado River and four of its tributaries to reverse their historical relationship with groundwater in only a few decades. The model predicts that the river and the streams will change from being streams that receive groundwater from the aquifers (gaining streams) to streams that contribute surface water to the aquifers (losing streams).
Mr. Rice also used the model to demonstrate that pumping of groundwater out of the Simsboro formation of the Carrizo-Wilcox Aquifer will induce flow from the overlying Calvert Bluff and underlying Hooper formations into the Simsboro formation. Such induced flows into the Simsboro will reduce flows into tributaries such as the Cedar, Big Sandy, Piney and Wilbarger creeks that are connected with the outcrops of those formations. And just as importantly, induce flows out of the Calvert Bluff and Hooper formations will likely damage landowner’s domestic wells.
Joe Trungale, our surface water hydrologist, used data from Mr. Rice’s work to demonstrate that the reduction of groundwater flow into the river will have unreasonable impacts on environmental flows in the Colorado River — especially during drought and extraordinary drought conditions. Mr. Trungale used the state’s surface water model to estimate the impact of reduced flows on statutory environmental flows and water rights holders throughout the lower basin. Mr. Trungale testified that the Colorado River in Bastrop is almost fully appropriated — “there is essentially no surface water available to spare”. Any reduction in flow will negatively impact existing water rights holders and the ecological health of the river. His analysis demonstrated that the requested pumping would reduce base flows in the river that would lead to a decrease in the frequency in which environmental flows standards will be met. “Instead of moving toward the goal of constant subsistence flows during drought, we would be moving farther from it with increased groundwater pumping,” he said.
Counselors Marisa Perales and Eric Allmon, in cross-examination of LCRA’s primary expert witnesses, were able to reveal that neither of them were surface water experts and neither had looked at surface water impacts from LCRA’s pumping (a finding that carries substantial legal liability in the LCRA’s burden of proof responsibility). They then built our case for damage to the river in cross-examination of Dr. William Hutchison, groundwater hydrologist for Lost Pines District. Dr. Hutchison, a renowned hydrologist who has held many state agency positions and who is well respected among scientists and policy makers alike, agreed that the best available model predicts that there will likely be damage to the Colorado River and its tributaries in the near future. He and Mr. Rice also testified that the model is not perfect and more data are needed to validate its predictions. Summing it up Dr. Hutchison opined that “It is reasonable to qualitatively conclude, based on the model results and my experience, that surface water impacts may be possible. It is unreasonable to summarily dismiss the potential for impacts.”
Finally, through cross-examination of Dr. Steve Young, one of LCRA’s expert witnesses, Ms. Perales was able to demonstrate that the field data needed to validate the model and its predictions was described in a publications that he authored. This, in combination with Dr. Hutchison and Mr. Rice’s agreement that field data is needed to make the model predictions more reliable moved Environmental Stewardship closer to its goal of getting a surface water-groundwater monitoring system installed to provide a means of measuring and protecting groundwater outflows to the Colorado River and its tributaries.
With the hearing behind us, the bills have started rolling in.
This has been a big-ticket item for Environmental Stewardship
… and we need your help.
On top of six long days of hearings where we had both our legal team — and for several days our expert witnesses — on the clock, we worked aggressively for several months to get through prefiled testimony, discovery, and deposition of experts to get ready for the big show down!
We are very grateful to our foundation sponsors: The Jacob & Terese Hershey Foundation, The Trull Foundation, and Environmental Fund of Texas for providing the long-term support necessary to get Environmental Stewardship a seat at this very important table … it’s been a long and up-hill battle.
And we are very grateful to our individual donors who have been with us for the long haul too … the heart and soul of our efforts.
WE HAVE GOOD NEWS!
We have a MATCHING GRANT for every dollar contributed by our individual donors!
The Environmental Fund of Texas shares our belief that the long-term success to protect the water resources of our great state ultimately rests with private citizens and landowners. So they have committed to match each individual and business donations up to $1,000 dollar-for-dollar up to a grand total of $25,000. So please, do what you can to help us demonstrate the breadth and depth of our support and capture as much of this generous match as we can.
Please consider making a tax-deductible donation today!
For more information please go to the Environmental Stewardship website page LCRA Griffith League Ranch Groundwater Application and Contested Case Hearing.
Board President and Executive Director