Lee County Landowners and SAWDF Critical of Lost Pines District Permitting Practices

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North Lee County landowners are speaking out on another commercial-size permit in north Lee County and have requested help from SAWDF to address their concerns. That area is also the site of the Forestar (USA) Real Estate Group’s commercial wells (recently purchased by Archway Water LLC), and is near End-Op/Recharge Texas’ proposed seven wells in Blue and the massive 33-well Vista Ridge Project in Burleson County.

“A Ranch” has applied for an 800 gallon per minute well that would fill an Olympic swimming pool almost twice a day. The permit for 443.88 acre-feet (roughly 144.5 million gallons) per year from the Simsboro Aquifer is largely for “recreational” purposes on the “A Ranch” property, a 1,000+ acre ranch off Lee County Road 411. The permit currently does not allow commercial sales of water from the well. The apparent recreational purpose is to fill a 103.8 acre private lake on the ranch, even in a drought of record.

One neighbor of “A Ranch” and one Simsboro well owner complained to the Lost Pines Board at the District’s June 21 public hearing on the permit. They voiced concerns about the need for a permit of this size and about adverse effects on their wells. County Judge Paul Fischer spoke earnestly to the Board about his concerns. He urged the Board to take its time and be conservative in its permitting decisions, including the A Ranch permit.

Landowners and owners of registered and permitted wells within 5,000 feet of a proposed commercial-size well are notified by mail by Lost Pines about proposed “non-exempt” wells and the related public hearing, and notice is also published in the district. Neither notice mentioned that District Rules (and the Texas Water Code) allow persons affected by proposed permits to protest the permit by requesting a “contested case hearing” of the permit in a formal administrative law proceeding.

Landowner Nancy McKee spoke to the District’s general manager in advance of the hearing about how to bring her concerns to the District's Board. Ronnie and Nancy McKee have been landowners adjacent to “A Ranch” since 1985, and have a well on their property.

Ms. McKee told SAWDF,

“We are concerned about the well we depend on, and the fact precious groundwater is being pumped at such high volumes to fill a private lake. Soon after we received notice of the hearing on May 16, and at least two other times prior to June 21, I spoke to the District’s manager about making comments to the Board. He never mentioned that I had the right to formally contest this permit instead of just talking to the Board for a few minutes at the hearing. When I got to the hearing, I learned the deadline for filing a formal protest had passed five days before the hearing. I wish I had at least been alerted about our right to protest. Maybe no one violated the letter of the law, but we are certainly disappointed in our groundwater district.

The sole representative of “A Ranch” at the hearing was Mike Thornhill, the ranch’s hydrogeology consultant. Mr. Thornhill’s stock answer to several questions posed by the Board was to the effect, “I don’t know the answer, but you can’t by law refuse to issue this permit.” Although members of the audience could not remember a time when an applicant or its counsel failed to appear before the Board to defend a permit, the Board did not press for answers to its questions.

Michele Gangnes, a SAWDF board member and longtime water rights champion for Lee County and the Simsboro, said,

“The bottom line here is that landowners have responsibility for protecting their own rights. But I also believe that Lost Pines GCD is deliberately avoiding the issue of ‘non-selling’ landowners’ legal rights to the groundwater under their land. They and other districts are deferring too much to big pumpers, either because their lawyers are telling them to keep their heads down or they themselves are just plain afraid of litigation, or both.”

Gangnes further noted,

“Texas water policy, and now our local regulators, do little to protect landowners who make a living using their groundwater wisely with the hope their grandchildren will be able to live on their land. The whole process of permitting is mysterious and intimidating to the general population. Lost Pines opts for the bare minimum communication with its constituents, but nothing in the District’s rules or the Water Code prevents a district from at least notifying citizens they have formal legal rights when commercial-size wells are permitted. Plenty of us landowners in Lee and Bastrop counties have backed this hard-working district from day one, but it looks like Lost Pines is pre-judging that they would just deny any protest anyway, so why even mention the right to protest. “

Travis Brown, longtime Lee County resident and SAWDF board member said,

“It doesn’t matter how many times landowners are told they are not ‘affected’ by a neighbor’s pumping, either because they don’t have a well in the ‘right’ place or don’t have a well at all. Landowners who actually did formally protest the 46,000 acre-foot End Op/Recharge Texas permit are still in court years later because Lost Pines says they aren’t ‘affected enough’ to have standing. Actually,Texas water law makes clear all landowners own the groundwater under their land, and they look to groundwater districts to protect those rights. Pumping under permits issued by Lost Pines are predicted by the State-approved computer groundwater model to produce at least a 363-foot drawdown in the Simsboro under Lee County by 2060.”

SAWDF also notes that, according to county public records, the ranch is owned by Houston-based A Handsome Dog LLC, which lists the Dannine Gale Duncan 1990 Grantor Trust as the only one member, officer, director or manager, as of June 29, 2017. SAWDF notes that District rules require both the “applicant” and the “property owner” to be specified in the application, and that the applicant include a sworn affidavit that the application is true and correct, presumably to ensure the permit is enforceable. “A Ranch” is reflected as the sole applicant and landowner instead of A Handsome Dog LLC for the pending permit, and the applicant’s affidavit was sworn by Mr. Skip Avara with no reflection of his authority to sign for either entity.

“A Ranch” is apparently owned by the billionaire heirs to the Enterprise Products pipeline and oil storage empire based in Houston. Members of that family also own large parcels of land in Bastrop County, according to appraisal district records. The already-drilled Simbsoro well at “A Ranch” is believed to be within 4,000 feet of two Simsboro wells drilled under Forestar /Archway Water’s permits. However, Forestar’s attorney and the manager of Archway were present at the hearing but raised no concern publicly with the new Simsboro permit, fueling speculation that the owners of “A Ranch” might be involved in Archway’s takeover of the Forestar wells. Very little information is publicly available about Archway, which was formed in mid-June 2017.

The Lost Pines Board put off a vote on the “A Ranch” permit for 30-60 days from their June 21st meeting. Apparently, the Board intends to issue the permit but will revisit specific terms of the draft permit concerning potential impermissible “waste” if groundwater pumped into the lake overflows. Since the hearing, SAWDF has received complaints from neighboring landowners whose property has been invaded by water escaping from the lake.

Formed in 2016, SAWDF educates and supports central Texans who steward their groundwater to ensure a sustainable future. In addition to landowner rights, SAWDF focuses on protecting our aquifers, and the rivers, streams, ecology and economies that depend on groundwater.

SAWDF is concerned about massive water permits in the Lost Pines Groundwater Conservation District, and is supporting ongoing efforts of landowners there to challenge the End Op/Recharge Texas permits in Bastrop district court. SAWDF is also communicating with concerned landowners in other districts, such as the Post Oak Savannah Groundwater Conservation District and the Plum Creek Conservation District.

Nancy McKee’s written testimony can be found here. SAWDF may be found at www.simsborowaterdefensefund.org, and is doing further investigation of the permit application and options for future actions.

SAWDF contact info: Michele Gangnes, 512-461-3179. Gangnes currently also sits on the League of Independent Voters' Board. Most of this article also ran in the Giddings Times Newspaper on July 12, 2017.

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