The Administrative Law Judges recently issued a reply to exceptions filed by the parties clearing the way for a final decision on LCRA’s groundwater permit application. The reply includes some changes to the original Proposal for Decision (PFD). With these changes — which preserve Environmental Stewardship’s win on surface water issues — the District’s Board of Directors now have the guidance they requested and can take final action on LCRA’s pending permit application.
The ALJs did not substantively alter their recommendation for the inclusion of a requirement for surface water monitoring, and the District has only limited ability to alter the recommendation of the ALJs. As such, the Proposal for Decision going to the Lost Pines Board still preserves Environmental Stewardship’s win regarding the need for monitor of surface water-groundwater interactions as a special condition in the permit.
Highlights from the ALJ’s reply on Environmental Stewardship’s Requests
ES’ REQUEST: Environmental Stewardship’s requested specific changes to the draft permit to ensure the monitoring well agreement is enforceable. Specifically, Environmental Stewardship requested that parties be allowed to participate in the permit renewal process to evaluate impacts to surface water and would like an opportunity to provide comments on the monitoring well agreement relating to surface water monitoring.
ALJs REPLY: The ALJs have found that LCRA has met its burden to show its pumping alone (through all phases) will not have unreasonable impacts to surface water and that was not a basis to deny the permit. The requirement for surface water monitoring wells is to make sure the District can meet its responsibility of protecting surface water from cumulative impacts. Therefore, there is no basis to require or allow further participation on LCRA’s impacts to surface water.
ES’ REQUEST: Environmental Stewardship also requested that monitoring well data be made publicly accessible.
ALJ’s REPLY: The ALJs find that this is a policy decision for the District that is outside the scope of this hearing and will not make a recommendation based on this exception.
NOTE: The District’s General Manager responded to this request as follows: “… inclusion of this requirement is unnecessary because monitoring well data will be available to the public pursuant to the Public Information Act (Act). The Act makes public “a completed report, audit, evaluation, or investigation made of, for, or by a governmental body.” Tex. Gov’t Code § 552.022(a)(1). The data gathered from these wells by either LCRA or the District, both of which are governmental entities, would necessarily be available to the public.”
ES’ REQUEST: Environmental Stewardship additionally ask that the findings and conclusions acknowledge that environmental flow targets and the frequency with which they are met provide relevant, reliable, and useful data that should be considered in determining whether proposed groundwater pumping will unreasonably impact surface water resources.
ALJ’s REPLY: This issue was specifically addressed in the PFD, and the ALJs will not address it further.
WHAT’s NEXT?
With the contested case hearing essentially complete, the Lost Pines’ Board can now take up the LCRA permit application for consideration. As with the End Op case (Now Recharge Water, LLP) the Board can remand questions for further clarification back to the ALJ’s for further review, or they can take direct action on the permit application. The first step will be for the District’s General Manager, James Totten, to prepare a draft permit for the Board’s consideration and recommend a course of action. After that the Board will consult with their attorney – who is a different attorney than those who represented the General Manager in the contested case hearing. When the Board is ready, it is anticipated that they will hold a public hearing where the parties and the public can provide comments on the draft permit. Given the situation with COVID-19 this process could take some additional time and the format of the public hearing will need to be in compliance with state-mandated guidelines.