As Lost Pines Groundwater Conservation District moves back into groundwater permitting, Environmental Stewardship is once again concerned about the impact of groundwater pumping on the aquifers, surface waters, and water permit holders (both groundwater and surface water). Secondarily, we will watch with interest to see how Lost Pines handles the many well permits that were questionably issued prior to recognizing the legal responsibilities that lead to the LPGCD moratorium. It seems clear that the District will be walking a thin line as they assume the role of “regulator” while seeking to avoid a takings claim.
Environmental Stewardship requested and has obtained a legal opinion from the prestigious water law firm of Lowerre, Frederick, Perales, Allmon and Rockwell Attorneys at Law regarding the recommendations of General Manager Joe Cooper to grant the requested permits. In summary, they found that “In processing these applications, Lost Pines Groundwater Conservation District (LPGCD or District) has not complied with the requirements of Texas Water Code § 36.113(d). This provision of the Water Code requires that the District consider certain factors when granting a permit. As discussed below, the District has not considered these factors in a manner that would support issuance of the requested permits.” “Since the District has not considered these impacts, the District has failed to consider a factor which the Legislature has required it to consider. Thus, any decision to issue the permits would be arbitrary and capricious.”
Click here for the full text of the legal opinion.
“By statute, the District bears a duty to consider such impacts. If the GAM is not a good tool for this purpose, then the District bears a duty to find a tool that enables a meaningful consideration. If more detailed information would allow the GAM to be used, then the District bears a duty to develop this information, either through its own efforts or by requiring that an application include such information,” opined Mr. Eric Allmon.
As of the March 20, 2013 hearing, the standards used by the Lost Pines General Manager for justifying recommendations to approve the permit applications have been a mere “papering over” of the responsibilities mandated in the following sections of the Texas Water Code.
Attached below are the recommendations of the General Manager on each of the four permit applications considered in the March 20 hearing.
Forestar (USA) Real Estate Group, Inc.
Lower Colorado River Authority
Heart of Texas Suppliers, LP
City of Bastrop
CONCERN 1: Will the District comply with Section 36.113 of the Texas Water Code which links well water permits to impacts on surface waters and permits?
Sec. 36.113. PERMITS FOR WELLS; PERMIT AMENDMENTS (d) Before granting or denying a permit or permit amendment, the district shall consider whether: (2) the proposed use of water unreasonably affects existing groundwater and surface water resources or existing permit holders.
Lost Pines should find that it is their responsibility to take reasonable actions to determine whether or not the pumping requested by applicants will have an affect 1) on other aquifers and the artesian head pressure of aquifers, 2) on surface water resources as the artesian pressure and outflows to the surface are reduced, and 3) on existing permit holders.
The reasonable implementation of Section 36.113 requires that the District consider the impacts of a requested permit on existing groundwater permit holders as well as surface water rights (surface water permits), since the impact of pumping to be considered includes both groundwater and surface water.
CONCERN 2: Will the District use provisions of Section 36.113 to issue more restrictive permits while it completes its tasks under Concern 1?
Sec. 36.113 (e) The district may impose more restrictive permit conditions on new permit applications and permit amendment applications to increase use by historic users if the limitations: (3) are reasonably necessary to protect existing use.
Simply stated, the District can place restrictions on new permits that are not on existing permits in order to protect the existing groundwater pumping permits and surface water right permits. Likewise, these new restrictions can include provisions that minimize the drawdown of the water table and reduction in artesian pressure while the District improves its understanding of the impact of the pumping on groundwater and surface water resources:
Sec. 36.113 (f) Permits and permit amendments may be issued … that may be necessary to prevent waste and achieve water conservation, minimize as far as practicable the drawdown of the water table or the reduction of artesian pressure, lessen interference between wells, or control and prevent subsidence.
CONCERN 3: Will the District consider whether or not the groundwater pumping permits issued before the moratorium are valid?
Sec. 36.124. DISTRICT ACT OR PROCEEDING PRESUMED VALID. (a) A governmental act or proceeding of a district is conclusively presumed … valid … [WITH THE FOLLOWING EXCEPTION] (b) This section does not apply to: (1) an act or proceeding that was void at the time it occurred;
The fact that Lost Pines realized its responsibilities leading to the moratorium after granting a number of groundwater pumping permits raises the question of the validity of those permits. Since the actions of the District in granting those permits was not in compliance with the Texas Water Code at the time the permits were granted, are those permits invalid and should the District void the permits and reconsider these applications along with the new applications?
The Lost Pines Board of Directors and staff have challenging times ahead of them. Environmental Stewardship hopes that they will continue to be diligent in following the Texas water laws, as they did with the moratorium, by finding that they have a responsibility to determine the impact of groundwater permitting on surface waters and surface water rights before granting any new permits.