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Lost Pines grants Operating and Export Permits
to End Op at September 7 Special Board Meeting
Board Meeting
September 7, 2016 at 7:00 PM
Bastrop Convention & Exhibit Center
1408 Chestnut, Bastrop, TX 78602
September 7, 2016: The Lost Pines Groundwater Conservation District's Board of Directors granted Operating and Export Permits to End Op LP at its September 7th Special Called Board Meeting, See Agenda).
Despite strong public appeal for a reduced permit at the last meeting (See BACKGROUND below for Box and Gangnes oral comments) the Board granted the 46,000 ac-ft/year phased in permit in a 7-1 decision citing the improvements this negotiated permit provide over the ALJ's recommended permit.
Director Michael Simmang introduced the motion to grant the permit by saying the permit being considered by the Board provides a number of conditions that were not in the SOAH Judge's (ALJ's) recommendation. For example, the permit requires End Op to install monitoring wells and turn the wells over to the District for operation prior to starting any pumping. Also, the permit requires a phased-in, stair-step approach to pumping that must meet certain conditions, including the condition that each increase in pumping be approved by the District after evaluating the impacts of several years of pumping on the aquifer. After this series of amendments to the draft permit were accepted, Director Clifton Seidel seconded the motion. Billy Sherrill voted against the permit, David Fleming recused himself from the vote, and Larry Schatte was absent. For more information visit ES' website:
End Op Permits,
GRANTING PERMIT TRIGGERS LANDOWNERS' APPEAL
Landowners, including Environmental Stewardship, appealed the decision by the Board and the ALJ to deny them party status in the End Op contested case hearing with Aqua Water Supply Corporation held in 2013. Action on the appeal in Bastrop District Court has been on hold since earlier this year when jurisdictional questions arose and the parties agreed to delay action until after the Lost Pines Board took action on the permit. The September 7 decision to grant the permit clears the way for the Landowners to continue to pursue their appeal. The appeal requests that the Landowners be granted party status and the matter be remanded back to the contested case hearing before a SOAH ALJ. The outcome of the appeal will have consequences for all landowners who have an interest in protecting the groundwater that they own beneath their land whether or not they own a well or plan to develop their groundwater. For more information visit ES' website: Landowners' Affected Persons Appeal and End Op CCH.
BACKGROUND:
August 11, 2016: In an unexpected move, the Board punted the anticipated permit down the road at the August meeting. After substantive public testimony from Environmental Stewardship, Simsboro Aquifer Water Defense Fund, the League of Independent Voters of Texas, Neighbors for Neighbors, Lee County Judge Paul Fischer and a half dozen landowners, the Board went into executive session. To everyone's surprise, when they came out of executive session President Mike Talbot announced that the Board:
- has instructed their attorney to get in contact with End Op's attorney to discuss some concerns, and
- wants to review some of the science before making a final decision.
There were long faces on many attorneys as the crowd gave the Board a standing ovation for their move. What this means we can only speculate.
Steve Box spoke for Environmental Stewardship (
Box Comments), and Michele Gangnes spoke for the other three organizations (
Gangnes Comments). Their message was one of disappointment that the Board, after many years when we stood by them, seem ready to abandon their landowner and citizen constituents by granting the proposed permit without taking action on ANY of the concerns raised by Environmental Stewardship and joined by the other three organizations (see additional background below).
Box also reiterated that "
Environmental Stewardship and the other three landowners in this case should have been recognized as affected persons with regard to End Op's Application. As such, if you are not going to deny the permit outright, then this matter should be remanded to SOAH after reversal of the ALJ's decision that we were not affected persons."
Box reminded the Board that "
after improperly denying our request for party status, a non-contested case was allowed to be heard, and a flawed record made without cross-examination. As a result, the Applicant was able to load the record with flawed information that the judge took as factual at face value. So you were left to deal with a flawed recommendation by the administrative law judge. We are gravely disappointed that you have ignored our pleas. However, we continue to plead that you greatly reduce the quantity of water granted in this permit, or deny the permit and unwind the flaws that were introduced as a result of the SOAH process."
Gangnes, a long-time water warrior reminded the Board that grass-roots organizing in the two counties to protect our aquifers was also instrumental in founding the Lost Pines District after the attempt by Alcoa in 1999 to come after groundwater for San Antonio. She reminded the Board of this history of support for the Board and of their duty and sole mission to protect the two counties' water supply. She too demanded that the Board either deny the permit outright or send the four landowners back to the SOAH hearing to plead their case against the permit.
The landowners provided personal stories of what is going on all over this country and world as water is bought and sold and winners and losers are created. Many were long-term residents who also have been following this application and felt let down that the Board was not protecting the domestic wells that they rely upon.
Darwyn Hanna, one of the protesting landowners, gave an emotional appeal to the Board on how important their role in protecting the aquifer is and how relying on monitoring might not be enough. President Mike Talbot acknowledged that the District had received a number of emails leading up to last night's meeting, with the inference that many citizens are concerned about the End Op permit.
Finally, Lee County Judge Paul Fischer reminded the Board of his frequently stated caution to "go slow, just go slow". Judge Fischer acknowledged the Board's difficult job, especially with this permit that had gone before a state administrative judge who recommended the permit, but he told the Board his answer to selling water as comparable to selling mineral right is "we can't drink oil and gas, once it's gone [the water], it's gone". The Judge has always delivered a message of aquifer and water supply protection for the future of our two counties, and his words met with audience applause.
We anticipate that this saga will continue next month, so stay tuned and keep the support for our appeal of party status coming!
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ADDITIONAL BACKGROUND:
Lost Pines Groundwater Conservation District's (District) Board of Directors considered
approval
of End Op's Application for
Operating and Export Permits
and
Well Monitoring Agreement
at the August 10 Special Called Board Meeting (Items 3 & 4 on
Agenda).
Public comments were heard at the the "Final Hearing" on the application.
WHAT DID WE ASK FOR?
We asked that our surface waters and
your shallow domestic wells be protected.
We got ignored, the water laws designed to protect these have been ignored.
We asked that mitigation include all aquifers connected to the Simsboro - the Calvert Bluff, Carrizo, and Hooper.
We got ignored, only wells within one (1) mile of the well field are included in mitigation.
We asked that the calculations used to qualify for more water be revised to consider predicted changes in aquifer conditions.
We got ignored, the calculations are unchanged.
We asked for monitoring wells that would protect the Colorado River and its tributaries.
We got ignored, no such wells are stipulated.
A final decision by the Board will trigger activation of the Landowners'
appeal to Bastrop District Court regarding the Boards' denial of our petition
for party status
at the End Op Contested Case Hearing
At the time of this writing, we are waiting to hear from the District on whether or not comment made over the last several months are being taken seriously and have been incorporated into the Permits and Well Monitoring Agreement.
As of our last analysis of the Permit and Well Monitoring Agreement, Environmental Stewardship believes the permit is premature and that the Special Conditions in the Operating Permit are inadequate to protect surface features like a) the Colorado River and its tributaries, b) the trees and terrestrial vegetation, and c) the shallow domestic wells in the Simsboro and related aquifers (Calvert Bluff, Hooper and Carrizo aquifers). The amount of pumping requested further jeopardizes the desired future conditions (DFCs).
1.
The permit is
premature because the District and the Applicant (End Op) have not yet complied with the Texas Water Code law that is designed to protect surface features, shallow wells, and guide permit decisions.
- Section 36.113(d)(2) requires that "before granting or denying a permit ...the district shall consider whether the proposed use of water ... unreasonably affects existing groundwater and surface water resources or existing permit holders". This law has been on the books for over 18 years, yet groundwater districts continue to ignore this law in making final permit decisions.
- Existing groundwater resources includes other aquifers such as the Carrizo, Calvert Bluff, and Hooper aquifers.
- Existing surface water resources includes rivers, streams and springs (which would include springs and seeps that hydrate near surface soils that support terrestrial vegetation.
- Existing permit holders include exempt domestic wells that are registered with the District.
- Neither the District nor the Applicant have done such analyses as are required by this section of the Texas Water Code. If such analyses have been done, they have not been made public during these administrative proceedings.
2.
The permit is i
nadequate
because it does not contain Special Conditions that a) allow future adjustments to the permit based on the impacts listed in 1 above as better information become available, and b) provide mitigation for wells in aquifers other than the Simsboro aquifer. Furthermore, the draft Operating Permit ignores groundwater availability modeling (GAM) that predicts that:
- End Op pumping in the quantities requested in the Simsboro Aquifer will draw water from other aquifers thereby causing significant drawdown in the Carrizo, Calvert Bluff and Hooper aquifers.
- These drawdowns will extend into other adjacent counties and adjacent groundwater districts as far away as Gonzales, Lavaca, Colorado, Austin, Grimes and Walker counties (see sidebar below).
-
End Op pumping in the quantities requested will decrease the amount of groundwater that currently flows from the aquifers and into the Colorado River, streams and springs, thereby reducing their flow - especially during drought conditions - in Bastrop and Lee counties (
see sidebar below).
- Contrary to what groundwater hydrologists claim, the model predicts that the groundwater pumped will come from the sources listed below. The impact is to cause irreversible damage to surface waters and shallow wells with little or no recourse provided in the Special Conditions. The sources, in order listed, are:
- First, the reduction in outflows to surface waters and features
- Second, from leakage into the Simsboro from the other aquifers and from other counties,
- Third, and last, from storage that is in the deep sections of the aquifers.
- Special Condition (4) that defines the terms used in the calculation to determine whether or not End Op can advance to the next level of pumping does not include a factor that considers future changes in the "rate of change" that are predicted by the groundwater model.
- ES modeling predicts that this factor could be off by 15% or more.
- Differences in this calculation would likely result in granting an increase in pumping to the next phase level that would lead to a greater exceedance of the desired future conditions.
3.
The permit further jeopardizes the desired future conditions (DFCs) for the aquifers, the District, adjacent Districts, and the region (see sidebar below)
- The model predicts that End Op pumping, especially when combined with other permitted pumping in the region (baseline pumping + End Op pumping + Forestar pumping + LCRA pumping + Vista Ridge pumping), will cause the desired future conditions of the Simsboro Aquifer to be exceeded by 200-300 ft of drawdown.
- This level of exceedance will trigger "pro-rata" curtailment of all permitted pumping. However, once contracts, pipelines and communities dependent on the water are in place, we believe it is very unlikely that such curtailment will be possible.
Please help us sustain our efforts to protect and defend our groundwater
and surface water resources by making a
tax-deductible donation today.
Environmental Stewardship RECOMMENDATIONS and REQUESTS
1.
In order to comply with Section 36.113(d)(2), the Operating Permit should contain a condition that states that: once the ongoing GAM improvements are completed, the District, working with GMA-12, will conduct studies to predict and consider:
a.
The impact of the permitted pumping on surface waters and terrestrial habitats,
b.
The impact of permitted pumping on hydrologically connected aquifers
c.
The impact of the permitted pumping on domestic wells in hydrologically connected aquifer,
d.
The impact of the permitted pumping on currently adopted DFCs.
e.
Changes that may be made to the terms and conditions of the Operating Permit to accommodate the above findings.
2.
Special Condition (13) on mitigation should be amended to include the "Simsboro, Calvert Bluff, Carrizo, and Hooper aquifers" in order to protect registered domestic wells in the communicating aquifers.
3.
Special Condition (4) calculations should be revised to include a factor that considers future changes in the "rate of change" that are predicted by the groundwater model.
4.
The monitoring well agreement should contain a requirement that groundwater-surface water monitoring wells be included to provide real-time data on the impact of pumping on the Colorado River and its tributaries.
5.
The Operating Permit should contain "living document" language to convey that this is a work in progress and subject to future revisions.
Please help us sustain our efforts to protect and defend our groundwater
and surface water resources by making a
tax-deductible donation today.
Steve Box
Executive Director
Environmental Stewardship
P.O. Box 1423
Bastrop, TX 78602
512-300-6609
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PROTECTING THE NATURAL RESOURCES OF THE LOST PINES REGION
and TEXAS GULF COAST
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Regional Impacts of Combined
Groundwater Pumping
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The combined pumping in the Simsboro Aquifer is predicted to cause 900 to 1200 feet of drawdown in Burleson and Lee counties by the year 2060 according to groundwater modeling conducted by professional hydrologist George Rice (
Click here for Rice Report March 22, 2016). The affects of groundwater pumping within Lost Pines and Post Oak Savannah Groundwater Conservation Districts (GCD) are predicted to impact not only the Simsboro Aquifer, but also the Carrizo, Calvert Bluff and Hooper aquifers extending to points as far away as Gonzoles, Lavaca, Colorado, Austin, Grimes and Walker counties. These aquifers are hydraulically connected throughout the Carrizo-Wilcox Aquifer Group.
- More than 200,000 ac-ft/y.r of permits and deals are in play.
- On top of about 90,000 ac-ft/yr of other permitted pumping.
The groundwater availability model predicts:
- Significant communication between the Simboro, Hooper, Carrizo and Calvert Bluff aquifers in the Carrizo-Wilcox Group.
- Significant drawdown in the Hooper, Carrizo, and Calvert Bluff aquifers from anticipated pumping of the Simsboro Aquifer.
Baseline plus additional planned pumping is predicted to exceed the current and proposed desired future conditions (DFCs) by 200-300 feet of drawdown for the Simsboro Aquifer by 2060 (see Table 3 from Rice Report), and will decrease flow in the Colorado River (see Figure 5 below).
 Rice used the same groundwater availability model (GAM) as is used by the groundwater districts. Baseline pumping data were provided by the Lost Pines GCD and included baseline pumping in Lost Pines and Post Oak Savannah Groundwater Districts.
Additional pumping by Vista Ridge, End Op LP, Forestar Real Estate Group, and the Lower Colorado River Authority were added to the baseline pumping to predict the combined impacts of Simsboro pumping throughout the region.
Rice concluded that baseline pumping will:
- Reduce hydraulic heads (i.e., water levels or hydraulic pressure) in the Hooper, Simsboro, Calvert Bluff and Carrizo aquifers.
- Where these aquifers are confined, the reduced heads would cause water levels in wells to decline.
- Where these aquifers are unconfined (recharge areas), the reduced heads would cause dewatering of portions of the aquifers.
- Reduce groundwater discharge to the Colorado River, thereby reducing its flow.
- Additional pumping by Vista Ridge, End Op, Forestar, and LCRA would result in greater head reductions than would baseline pumping alone, and a greater decrease in groundwater discharge to the Colorado River.
Below are drawdown maps showing the impact of baseline plus additional pumping in the Simsboro Aquifer, and the direct affect of the Simsboro pumping on the Hooper, Calvert Bluff and Carrizo aquifers. (The southeast boundaries of the aquifers shown on the maps are limited by the extent of the GAM model. It is likely that the drawdowns extend further into the counties south and east of the drawdowns lines shown on the maps).
Figure 1. GAM predicted drawdowns in the Simsboro Aquifer due to baseline pumping plus additional pumping by Vista Ridge, End Op, Forestar, and LCRA 2000-2060.
Figure 2. GAM predicted drawdowns in the Hooper Aquifer due to baseline pumping plus additional pumping by Vista Ridge, End Op, Forestar, and LCRA 2000-2060.
Figure 3. GAM predicted drawdowns in the Calvert Bluff Aquifer due to baseline pumping plus additional pumping by Vista Ridge, End Op, Forestar, and LCRA 2000-2060.
Figure 4. GAM predicted drawdowns in the Carrizo Aquifer due to baseline pumping plus additional pumping by Vista Ridge, End Op, Forestar, and LCRA 2000-2060.
 Figure 5. GAM prediction of reduced groundwater discharge to the Colorado River and tributaries.
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| Lost Pines Groundwater Statistics |
Below are some statistics about current applications, existing permits and facts from the Lost Pines Management Plan.
Current Simsboro Aquifer
Applications Pending:
- 45,000 acre-feet/yr Forestar Group Approved at 12,000 ac-ft/yr
- 10,000 acre-feet/yr LCRA Approved at 8,000 ac-ft/yr
- 56,000 acre-feet/yr End Op Contested
- 2,000 acre-feet/yr City of Bastrop/XS Ranch Contested
- 3,226 acre-feet/yr Manville WSC Approved
- 3,360 acre-feet/yr Heart of Texas Withdrawn
- 1,613 acre-feet/yr City of Bastrop Approved
119,199 acre-feet/yr TOTAL APPLICATIONS FOR SIMSBORO WELLS
Previously Approved Permits in the Simsboro Aquifer
- 23,627 acre-feet/yr Aqua WSC
- 6,653 acre-feet/yr Manville WSC
- 11,023 acre-feet/yr Lee Co. WSC
- 100 acre-feet/yr Lee Co. FWSD
- 67 acre-feet/yr Hunters Crossing
- 3,850 acre-feet/yr Alcoa (currently pumping 6201 acre-feet/yr)
45,365 acre-feet/yr TOTAL PERMITS FOR SIMSBORO WELLS
164,884 acre-feet/yr TOTAL SIMSBORO APPLICATIONS + PERMITS
4.4 times the Available Water (2060 MAG) for the Simsboro Aquifer
5.6 times the Available Water (2010 MAG) for the Simsboro Aquifer
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A FEW FACTS From the Lost Pines Management Plan
- Total Available Groundwater (MAG) in the District by 2060 is 58,888 acre-feet/yr.
- Bastrop County projected water demand by 2060 is 65,266 acre-feet/yr.
- Lee County projected water demand by 2060 is 6,603 acre-feet/yr.
- Current discharge to surface waters from all aquifers is 78,612 acre-feet/yr.
- Net recharge to all aquifers (recharge - discharge) is 7,249 acre-feet/yr.
- Current pumping for all aquifers in the District is 47,811 acre-feet/yr (website)
- Current permits for all aquifers 73,000 acre-feet/yr (Austin-American Statesman)
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