MAJOR WIN REQUIRES LCRA TO PROTECT THE COLORADO RIVER
Our case is strong, and has prevailed for the third time!
None-the-less, LCRA has appealed these decisions to Bastrop District Court
Updated September 24, 2022
LCRA files petition to appeal to Bastrop District Court
September 23, 2022, Bastrop, TX: LCRA has filed it first amendment to its petition appealing Lost Pines GCD’s decision on its groundwater permit application.
July 8, 2022, Bastrop, TX: The Lower Colorado River Authority (LCRA) filed a petition to Bastrop County Judicial District Court against the Lost Pines Groundwater Conservation District (LPGCD) requesting that the LCRA be granted the following relief, in whole or in part:
1. Defendant Lost Pines Groundwater Conservation District be cited to answer and appear herein;
2. The Court grant relief as requested herein; and
LCRA requests that the Court enter its Order declaring the Second Order invalid because the District’s action violates applicable constitutional and statutory provisions, exceeds the District’s statutory authority, is affected by clear error of law, is not reasonably supported by substantial evidence, and is arbitrary and capricious and characterized by abuse of discretion for the reasons described above.
LCRA further requests that the Court enter its Order declaring as invalid all of the modifications made by the District to the ALJs’ PFD and proposed Findings of Fact and Conclusions of Law, and related changes to LCRA’s operating and transport permits (other than declaring the “waste” issue for transport permits moot) because none of the Board’s modifications are within the limited authorization provided by Texas Water Code § 36.4165, and they violate other applicable constitutional and statutory provisions, as described above.
LCRA further requests that the Court reverse the District’s Second Order and remand this matter to the District to issue an order consistent with the ALJs’ proposed Findings of Fact and Conclusions of Law and the statutory and constitutional limitations on the District’s authority, as described above.
3. LCRA have all such other and further relief, both general and special, at law and in equity, to which it may show itself justly entitled.
Stay tuned for more updates on this matter.
Lost Pines GCD Board sides with Environmental Stewardship, Landowners, General Manager and Water Suppliers.
May 18, 2022, Bastrop, TX: After the Board considered the briefs provided by the parties (listed in Hearing Documents and Orders listed below), the arguments made at the Rehearing, District’s Rules, and Board Counsel’s document explaining the difference between the Final Decision and the State Office of Administrative Hearing judges Proposal For Decision, the Board found that the authorizations for Permitted Wells should be issued as found in Permit 1, the first of eight (8) essentially identical permits for eight production wells.
Though rather simple and brief, the following statement in Special Provision 1 of the permits is a major win — for the third time — for protecting surface waters, including the Colorado River, from groundwater over-pumping:
“The Monitoring Well Agreement entered into between the LCRA and the District
shall include wells, gauges, or any scientifically supported tool to monitor surface waters.”
April 4, 2022, Bastrop, TX: After nine years, Environmental Stewardship, 35 Brown Landowner families and individuals, Elvis and Roxanne Hernandez, Lost Pines’ General Manager, and three water supply companies stood shoulder-to-shoulder, with heads held high, in support of the Lost Pines GCD Board of Directors as they sided with the parties on the merits of their contested case against the LCRA’s permit request. The Board, on rehearing, confirmed its original 8,000 acre-feet per year permit and re-affirmed the requirement that the LCRA monitor impacts on surface water as a special condition of the permit.
These two VERY BIG WINs for landowners and the environment come nine years after Environmental Stewardship, and three landowners; Betty Brown, Darwyn Hanna, and Andrew Meyer, first attempted to be recognized as affected parties in the contested case hearing on End Op’s (now Recharge Water) groundwater permit applications. Neither Environmental Stewardship nor the landowners were admitted as parties to the End Op case, however, they won party status after appealing to the District Judicial Court in Bastrop, Texas, with Judge Carson Campbell presiding. Though the case was later reversed on a technical appeal, the merits of the case were not disputed then, nor were they disputed by LCRA or the District’s General Manager when Environmental Stewardship and over 100 landowners requested standing in the LCRA contested case.
Once the Board’s final decision is ordered, and the Board voluntarily produces Findings of Facts and Conclusions of Law to satisfy one of LCRA’s complaints, the LCRA will have lost its case before the Lost Pines GCD Board and will be free, at its own discretion, to appeal the decision and seek judicial relief in Bastrop District Court.
Regardless, Environmental Stewardship and the Landowners were, once again, able to make their cases on the merits, and the merits were found compelling. Environmental Stewardship, along with the General Manager, made the case that the amount of pumping in the Lost Pines District, along with the pumping requested by the LCRA, are predicted to have unreasonable impacts on surface waters in coming decades, and that monitoring of the impacts is reasonable and necessary.
Briefs: Environmental Stewardship, Brown Landowners, Lost Pines General Manager, Aqua Water and City of Elgin, Recharge Water.
LCRA: Request for rehearing and Reply to parties.
SO THIS IS WHAT HAPPENS WHEN
THE FOX IS STEWARD OVER THE HEN HOUSE!
What is mind-boggling, for me at least, is that the LCRA — the supposed steward of the Colorado River by its own claims — has spent the last three years denying the findings and predictions of the best science available as it has attempted to avoid taking responsibility for protecting the river from the predicted impacts, and has refused to agree to monitoring surface waters to avoid or mitigate potential unreasonable impacts on the Colorado River. This is something the LCRA should have done — voluntarily — many years ago when inflows to the Highland Lakes started dropping dramatically, or even much earlier.
Environmental Stewardship called the inflows problem to LCRA’s attention during its review of the Highland Lakes Water Management Plan in 2018. So let me be very clear …. the lack of adequate inflows to the Colorado River, whether above the Highland Lakes, or below Longhorn Dam, are a significant and unreasonable impact on the river. The LCRA, as the state agency responsible for managing the environmental health of the river and the communities that depend on it, needs to be taking a strong leadership role in resolving this critical issue. This is not the time for the LCRA to be slacking off for political purposes. See Low Inflows to Highland Lakes; a pending crisis?
Summary of Environmental Stewardship’s Reply Brief
Environmental Stewardship (ES) filed its response to LCRA’s motion for a rehearing on the groundwater permit granted to LCRA by the Lost Pines GCD Board of Directors on March 10, 2022, as requested. LCRA will have until March 25th to reply to the briefs submitted by all of the parties (see Reply Briefs above). The Lost Pines Board will then make a final decision on the motion. LCRA will then have exhausted all of its administrative remedies and will be free to seek judicial remedies in Bastrop District Court if they decide to do so.
LCRA complains about the requirement that it monitor surface waters, and complains that the surface water monitoring requirement is vague and unclear.
In anticipation of a potential appeal of the decision, ES took this opportunity to strengthen its arguments for the requirement for surface water monitoring and points to clear and specific monitoring methodology that it provided as an exhibit during the hearing.
First, the evidence revealed that LCRA’s proposed pumping is likely to impact surface water resources, based on the best available science … in the context of existing condition
The results are summarized well by the GM’s testifying expert, Dr. Hutchison: “The results of my analysis are clear that the model predicts impacts to the surface water system as a result of the proposed LCRA pumping. While the impacts could not be quantified with any specificity, experts for these 3 parties (LCRA, the GM, and Environmental Stewardship) all agreed that the GAM demonstrated, qualitatively, that LCRA’s proposed pumping would have impacts on surface water resources. According to Dr. Hutchison, “It is unreasonable to summarily dismiss the potential for impact [on surface water resources].”
Finally, ES maintains that the surface water monitoring requirements are sufficiently clear to allow for implementation.
Environmental Stewardship provided evidence in the record demonstrating how such a Surface Water-Groundwater (SW-GW) monitoring plan could be designed and implemented. In fact, Section 4.1.4 of the document cited in ES exhibit 301, describes a method that was used by LCRA during the LCRA-SAWS Project to monitor the impacts of groundwater pumping on the Colorado River in the lower basin.
ES has made the case for potential damages to the Colorado River due to LCRA and District wide groundwater pumping, and ES has provided a monitoring roadmap for protecting the river. The District, in its initial Decision, found these arguments to be compelling and required LCRA to do surface water monitoring. We expect that the Board will stick with its initial findings and conclusions as it rules on this motion. Here is an annotated copy of ES’s reply brief.
First Order and Final Decision on LCRA’s Groundwater Permits
November 15, 2021, Bastrop, TX: The LCRA groundwater permit application was submitted in 2018 and was immediately contested by Environmental Stewardship, the General Manager of Lost Pines (GM), and five other parties. After a six day hearing before two administrative law judges (ALJs) from the State Office of Administrative Hearings (SOAH) that took place in October of 2019, an order and final decision by the Lost Pines GCD Board of Directors was released on November 15, 2021, along with eight well permits. The following is a summary of the findings regarding surface waters in the decision.
In addition to the LCRA pumping being limited to only 8,000 AFY (they requested 25,000 AFY), important surface water protection conditions are included in the final decision and well permits.
Three parties, LCRA, the GM, and Environmental Stewardship, provided evidence and testimony relating to the issue of effects of pumping on surface water resources. Environmental Stewardship’s and the GM’s analysis both showed a potential for the loss of surface water to the groundwater formations in Bastrop County by around 2050. As a result, the ALJs required that the Operating Permits include monitoring so that the District can evaluate the potential impacts to surface water resources. [Final Decision, page 23, section B]
The ALJs went further by finding that all Districts are required to address conjunctive water management in their water management plan and in the adoption of the DFCs. Therefore, the cumulative effects of pumping can, and should be, considered as part of the District’s management plan, and that the possibility exists that the District could curtail all users if necessary. Therefore, surface water monitoring is essential to make those sorts of determinations. [Final Decision, page 31, paragraph 2]
The ALJs further found that Dr. Hutchison’s and Mr. Rice’s GAM models show that the cumulative effects of LCRA’s proposed pumping, combined with the District pumping base pumping, may cause significant losses of surface water to the groundwater system in Bastrop County. And that such loss would be a “persistent and substantial flow from surface water to the groundwater system” and thus would meet the standards set forth by LCRA witness Dr. Young for unreasonable effects. [Final Decision, page 31, Section c]
Finally, the ALJs found that the Well Monitoring Agreement with LCRA should incorporate any work plan added to the District’s water management plan. [Final Decision, page 48, paragraph 2]
Based on these findings, the permit includes a special condition that “the Monitoring Well Agreement entered into between LCRA and the District shall include wells, gages, or any scientifically supported tool to monitor surface water.” [Operating Permit, page 2, Special Condition 2]
This sets the stage for Lost Pines District to include a surface water protection component in its management plan which must be updated by 1/24/2023.
With this milestone, our goals are greatly advanced, and it is realistic that all three of Environmental Stewardship’s objectives to protect the river and its tributaries may be met, in practice, in the coming years.
Unfortunately, as expected, the LCRA has thrown yet another obstacles in the path forward, and Environmental Stewardship is, once again, rising to the occasion.
Click here for a version of the Final Decision that highlights the surface water portions of the decision.
History prevailed leading to Party Status by Environmental Stewardship and Brown Landowners
A hearing to determine party status of 127 individuals and organizations protesting LCRA’s application for a permit to pump groundwater from Bastrop County was held on December 19, 2018. The hearing was ordered (Order 1) by State Office of Administrative Hearing Law Judges (ALJs) Michael J. O’Malley and Laura M. Valdez. Based on an earlier appeal by Environmental Stewardship and three landowners, LCRA and Lost Pines General Manager did not object to Environmental Stewardship and certain landowners being admitted as parties to the LCRA case.
Environmental Stewardship and a group of 43 landowners were admitted as parties to the contested case hearing. Twelve (12) other unrepresented landowners were also admitted. To ensure that all parties had a justiciable interest, each entity and individual was required to file an affidavit no later than February 9, 2019 (Order 2). Based on these affidavits, Environmental Stewardship, Brown Landowners, Lost Pines Groundwater Conservation District’s General Manager, Aqua Water Supply Corporation, City of Elgin, and Recharge Water, LP were admitted as parties (Order 5). A number of landowners who do not own wells were denied party status.
A hearing on merits was held on October 15-22, 2019, in Bastrop, Texas. A schedule of deadlines — concerning discovery, expert witnesses, prefiling of testimony, rebuttal, depositions, and responses to objections — was issued by SOAH (Order 3). After the hearing on merits, the ALJ’s sent a proposed decision to the Lost Pines Groundwater Conservation District Board of Directors who then made a final decision on the LCRA’s application.
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Hearing documents and orders:
All hearing documents not found below can be found at the SOAH website. Click the button “Public Case File Search” and then put in the case number 952-19-0705. We have concentrated on the scientific testimony in the documents listed below.
Request for Contested Case Hearing (September 19, 2018)
Response in support of General Manager’s motion to establish process regarding party status (December 17, 2018)
Pre-filed Direct Testimony of George Rice on behalf of Environmental Stewardship (June 28, 2019)
Pre-filed Direct Testimony of Joe Trungale on behalf of Environmental Stewardship (June 28, 2019)
Objections and Motion to Strike LCRA’s Prefiled Rebuttal Testimony and Exhibits (September 27, 2019)
Motion to Leave to Supplement Prefiled Testimony and Exhibits (October 4, 2019)
Responses to LCRA’s Objections and Motion to Strike Testimony (October 4, 2019)
Reply to Response to Motion for Leave to Supplement profiled Testimony and Exhibits (October 11, 2019)
Proposal For Decision Annotated for Surface Water Findings (March 31, 2020)
Letter to Board’s Special Council regarding rehearing (January 10, 2022)
Reply to LCRA’s motion for rehearing (March 10, 2022)
Brown Landowner Group (Grissom):
Unopposed Request for Party Status (December 17, 2018)
First Amended Unopposed Request for Party Status (December 18, 2018)
Pre-filed Direct Testimony of Keith Copeland on behalf of Grissom Landowners
Response to LCRA’s motion for rehearing
Lost Pines Groundwater Conservation District – General Manager:
Motion to establish process regarding Party Status (December 14, 2018)
Pre-filed Direct Testimony of James Totten
Pre-filed Direct Testimony of Dr. William R. Hutchison
General Manager’s reply to LCRA’s motion for rehearing
Lower Colorado River Authority:
Pre-filed Direct Testimony of Steve Young
Pre-filed Direct Testimony of Van Kelly
LCRA’s response to replies by parties on rehearing
Administrative Law Judge Orders:
Order 1 – Scheduling Prehearing Conference on Party Status (November 16, 2018)
Order 2 – Memorializing Prehearing Conference Addressing Party Status (December 21, 2018)
Order 5 – Parties admitted to participate in hearing
Proposal For Decision (March 31, 2020)
Lost Pines Groundwater Conservation District’s Board of Directors:
Order adopting Final Decision, Findings of Facts and Conclusions of Law (May 18, 2022)
Permit 1 of eight (8) Operating Permits, all essentially identical except in well number and location (May 18, 2022)
Final Decision describing the arguments of the parties, and the decisions of the Board (May 18, 2022)
Board Counsel’s document explaining the difference between the Final Decision and the State Office of Administrative Hearing judges Proposal For Decision