A Bend in the River Worth Fighting For

Updated November 8, 2024.

By Harold “Skip” Connett and Steve Box

Wilbarger Bend on the Texas Colorado River below Austin. A bend in the river worth fighting for!

As more development converges in Bastrop County’s Wilbarger Bend,  landowners are increasingly alarmed by its potential harm to the Lower Colorado River and the aquifers beneath it that they depend on for their livelihoods. A recent administrative court ruling in a requested contested case involving water use for mining is adding more fuel to their concerns.

Rambo Materials groundwater permit: Last month, administrative Judge Stephen Ables denied a petition filed by Environmental Stewardship (ES) to delay approval of an industrial well for Rambo Materials, one of three new sand and gravel  that have begun operating in the bend.  The new, Austin-based company is seeking to draw 100 acre feet per year from the Hooper aquifer beneath its mining operation, which lies directly across the river from the new SpaceX facility.

Last year, Lost Pines Groundwater Conservation District (LPGCD or Lost Pines) permitted Rambo to pull 50 acre feet from a water storage pit that sit just above the alluvial aquifer, a shallow, groundwater sponge that interacts with the river and provides drinking water and irrigation for farmers in the bend.  ES argues the need for a hydrology report to better evaluate the impact of those wells on the aquifers before the permit is approved.  

“Surrounding landowners need assurances that alluvial water flowing into so many pits at once, coupled with the applicant’s water extraction request, will not divert the flow of water away from their wells, which are already stressed by long-term drought,” says Steve Box, executive director of Environmental Stewardship. 

Rambo attorney Christopher Pepper argued that Rambo’s request fell short of the threshold for requiring a hydrology report. That issue became moot, however, when the judge ruled in Rambo’s favor without any expert testimony having been taken, concluding that the landowners had no standing in the case because their wells were drawing from the alluvium and not the Hooper.  

Ron Herschap has been raising cattle on his family’s 75-acre ranch in the bend since the 1940s, with few concerns over water quality or quantity. That changed when Musk arrived in 2021, followed by three sand and gravel operations that have leased or purchased more than 1,500 acres along the river for mining. His farm borders Rambo’s 204 acres, which extends from Wilbarger Bend Road to the river. Most of the Rambo property is sited for mining, including its floodplain.

In asking the judge to reverse his decision, Environmental Stewardship requested a rehearing and submitted an affidavit from George Rice, a hydrologist and expert witness on water-related hearings in the region.  He notes that neither Rambo nor the LPGCD have conducted “storativity” tests to determine how well the aquifers  store and release water in this area. Lacking these aquifer pump tests “prevents an accurate determination what the drawdowns will induce beneath nearby properties, such as that owned by Mr. Herschap.”  A final decision on standing will be made by the Lost Pines Board of Directors in the near future. 

Andy Weir, a co-founder of the Simsboro Aquifer Water Defense Fund, expressed concern that the company did not follow the required paperwork and that the water district has not inspected  the existing well to determine if it has complied with prior permit requirements.

Environmental Stewardship juggling multiple contests

The Rambo permit is one of several of Environmental Stewardship’s legal challenges. Its priority for the past three years has been protecting the exceptional water quality status of this section of the river, which has been a big draw for outdoor enthusiasts, anglers, and boaters. 

View of SpaceX and The Boring Company (upper left) facilities downstream from Corix/McKinney Roughs wastewater treatment plant & across from Wilbarger Bend on the Colorado River.

Corix Utilities McKinney Roughs WWTP:  Further upstream at LCRA’s McKinney Rough Park,  Corix Utilities is undergoing a 10-fold expansion of  its wastewater facility inside the park. Environmental Stewardship has taken the lead in contesting that permit, asking that the permit be delayed until TCEQ collects more current data on the river’s health.  With this hearing looming, Environmental Stewardship is now actively involved in the pre-hearing legal process including initial disclosures,  discovery, initial disclosures regarding expert witnesses and their materials, that will lead to testimony and exhibits used to make our case at the hearing on merits. The hearing on the merits in this case is scheduled to be held before the State Office of Administrative Hearings (SOAH) on January 27-29, 2025.

As we embark on this journey to present our case before the administrative law judge(s), we are stepping into a realm akin to a judicial trial, where every piece of evidence will be meticulously examined. The weight of our arguments will be carefully considered, leading to a proposal for decision that hinges on the merit of our case. Following this, the TCEQ Commissioners will deliver their final ruling, akin to a courtroom verdict, with our right to appeal standing strong.

To ensure that Environmental Stewardship emerges triumphant, your ongoing support and financial assistance over the next few months are crucial. Your commitment to stand with us in this monumental effort will make a meaningful difference in our fight for environmental protection.

Undertaking a contested case hearing of this magnitude demands not only a substantial investment of time and resources but also significant financial commitment, with estimated costs around $50,000 for legal and expert witness fees*. However, with Perales, Allmon, & Ice P.C. we are fortunate to have some of the most skilled environmental attorneys in the state on our side, with a track record of securing victories in similar battles.

The Boring Company and SpaceX: Earlier this year, Environmental Stewardship celebrated a hard-fought win to pressure  Elon Musk’s Boring Company and Space X to hook up to the city’s new wastewater facility rather than discharge several hundred thousand gallons of treated sewage per day into the river. Corix Utilities agreed to install a wastewater connection from the area off highways FM 969 and FM 1209 where these facilities are located and the City of Bastrop Wastewater Treatment Plant located of FM 304 that recently went into service and discharges into the Colorado River below Bastrop by way of Cedar Creek.   

Administrative Law Judges Ross Henderson (Left) and Rebecca Smith (Right) hearing evidence at the LCRA Contested Case Hearing.

LCRA Groundwater Application:  Recently the Third Court of Appeals denied the Lower Colorado River Authority’s (LCRA) appeal seeking to overturn the decision by the Lost Pines Board of Directors to reduce the amount of pumping in the permit from 25,000 acre-feet per year to 8,500 acre-feet per year. Additionally, in a Special Condition,  the Board  is requiring that LCRA monitoring the impacts of the District’s overall pumping on surface waters, more specifically the Colorado River below Austin.  The LCRA has until December 2, 2024 to appeals this decision to the Texas Supreme Court.  

Donations Needed to Offset Legal Costs

Holding these industries more accountable for their impacts on the county’s natural resources is no small matter. Musk’s unlimited wealth  makes fines and penalties for environmental violations seem trivial. For decades, the aggregate mining industry, through its powerful lobbying interests has fought proposed legislation requiring it to follow best practices required in most other states. Of note, the Texas Aggregate and Concrete Association’s newly elected executive director, Zak Covar, is a former commissioner and executive director of TCEQ, the environmental agency that oversees the industry. And our contested case with Corix is directly seeking to disclose what steps the Texas Commission on Environmental Quality (TCEQ) has taken in the last 20 years to confirm that the safeguards the say that are in place for wastewater discharges into the Colorado River are in fact protecting the environment and human health.   So we are up against some very heavy hitters and need your help to make our case.  

Environmental Stewardship is seeking donations to help offset the significant legal costs of these contested hearings. Fortunately we have been successful in fundraising for grants to help this effort, but are in need of public matching funds. To get a better idea of how impaired the river has become, we urges you to watch this recent video of what is happening to Wilbarger Bend.

* Click for more information on how Environmental Stewardship handles and values your donations.

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