The Full Report
This week, Freddie Limmer’s End Op, L.P. argued to the Texas Water Development Board (TWDB) that the desired future conditions (DFCs are the parameters set by the water code for pumping our aquifers) set by GMA 12 (Groundwater Management Area 12: Bastrop, Brazos, Burleson, Falls, Fayette, Freestone, Lee, Leon, Limestone, Madison, Milam, Navarro, Robertson and Williamson counties) were flawed. Therefore, End Op attorneys argued, there’s plenty of water for them to move 71 million gallons per day, through a 100-mile pipeline (we call it the Trans-Texas Water Highway), from Bastrop and Lee counties’s aquifer (the Simsboro portion of the Carrizo-Wilcox aquifer) to Hays and Bexar counties. Limmer is infamous for self-dealing, like his friend Rick Perry, for whom Frankie pushed no bid contracts to questionable people for tolls on roads already paid for while serving as a Williamson County Commissioner.
End Op attorneys argued that the existing DFCs will not allow enough additional permitting to accommodate Frankie’s mega-million dollar water deal. We say our aquifers are already over-permitted throughout GMA 12, without the further disaster of 14 more wells pumping 56,000 acre feet per year (71 million gallons per day), to Frankie and Rick’s pals.
We might all agree the DFC’s were not set as rigorously as the science of hydrology allows. But no matter whether you think the projected drawdowns are too high (we do!) or too low (Frankie and Ricky do!), you would have been wholly unimpressed by End Op’s hydrologist who testified to things like, “there’s a whole lot of water down there,” and “there’s water available for more years than our country has been in existence.” The End Op attorney’s description of the hydrologist’s scientific [sic] work as “unprecedented” was downright hilarious. More to the point, we don’t agree with their self-serving conclusion — that End Op should get the 71 million gallons per day for which they will be paid handsomely under their contract with Guadalupe-Blanco River Authority (GBRA) (more on that below). GBRA will in turn use bonds issued by TWDB to build a 100-mile pipeline from Bastrop and Lee counties to help continue driving development along the I-35 corridor.
Folks, this need not be about driving growth so that the likes of Limmer can make money. It needs to be about making growth – and these high roller friends of the Governor – pay their share of the costs of growth. Under current conditions, water will not be assigned its true value until the day we have to buy it back, for unaffordable prices.
Our hunch as to End Op’s game plan:
This is an educated guess and no, we’re not conspiracy theorists even when it comes to the Perry machine, but we see End Op (probably assisted by GBRA) using the water code petition process to begin making their case against our local groundwater conservation district for a takings lawsuit. (So much for Rick’s “tort reform.”)
End Op and Environmental Stewardship, like all petitioners who challenge DFCs for their regions, are asking TWDB to find the DFCs unreasonable. If TWDB finds the DFCs unreasonable, TWDB recommends revisions to the GMA for possible action by the GMA. But the whole petition process is so poorly designed, at least for petitions filed in this 5-year cycle of state water planning, the ugly truth is that it is unlikely TWDB will find any region’s DFCs unreasonable. The TWDB ruling on March 1 for two petitions filed in GMA 9 are good examples of how low the bar has been set for GMAs to defend their DFC calculations – the Board ruled against the petitions, finding that the DFCs are reasonable. This article was written prior to the ruling, but explains the issues involved in GMA 9.
So, while it is not likely the DFCs will be set aside in its favor, End Op probably has a new game, based on its reading of the recent Texas Supreme Court ruling in the Day case. In her February 29 argument, End Op’s lawyer highlighted the Day ruling that landowners have an ownership interest in groundwater in place under their land, and that adequate compensation may be owed under the “takings clause” of the Texas Constitution if governmental regulation of their right to pump water goes too far. She not so subtly dangled the prospect of a lawsuit over the heads of the GMA districts, especially Lost Pines Groundwater Conservation District, whom she described as “local control gone rogue.” She rattled off LPGCD’s denial (by placing a moratorium on permitting) of End Op’s right to produce groundwater after End Op invested “millions of dollars in an historic project,” while invoking “fear in the community” about a trumped up water shortage. She characterized LPGCD as arbitrarily and unreasonably preserving water for local use, which she claimed is “as absurd as denying Austin jobs to anyone other than Austin residents.”
End Op also claims that GBRA has cancelled its contract to buy water from End Op because End Op can’t get its permits. While End Op’s attorney described the DFCs as regulations covered by the Day ruling, thus making GMA 12 a target, we could not help but notice the argument by a lawyer representing other groundwater districts in GMA 12 to the effect End Op’s beef seems more appropriately aimed at LPGCD, rather than at the GMA or the DFC process. So much for solidarity among the groundwater districts who regulate our water!
Let it be noted that End Op’s beef is really with citizens of Bastrop and Lee counties, with whom they don’t dare pick a direct fight. They should lay off the LPGCD, who, in our eyes, are heroes and doing the best they can with a broken water code and state officials (from Perry down to many state reps) who are on the water take.
End Op’s DFC challenge, just like Environmental Stewardship’s next week, will not be acted on by TWDB until June 21. While the TWDB is likely to affirm the GMA 12 DFCs, TWDB has already begun state-assisted funding of the GBRA pipeline from Lee and Bastrop County to I-35. Whether or not the Perry-appointees on the TWDB directly give End Op what they want, the GBRA 100-mile pipeline is very much alive and a very serious threat. It’s a threat to long-term responsible water stewardship not only for Bastrop and Lee counties, but for the whole state. If they get away with such a massive export of water, with state backed bonds, you can bet your wading boots all Texas true landowners and true conservationists are up the creek.
If TWDB does find in End-Op’s favor, after denying other petitions, the “fix” will definitely be apparent. If they deny End Op’s petition, End Op will probably springboard into litigation mode, hoping to force the permits out of LPGCD another way.
A wild political guess:
Just for fun (and we stand to be corrected if you can), we’re guessing that the Guadalupe Blanco River Authority broke their contract with End Op to purchase water for the Hays/Bexar/IH-35 growth corridor to actually help End Op get set for a court case against LPGCD. End Op will claim the loss of their multi-million dollar contract as part of their damages. But will that really stop the GBRA project? Not likely — remember, GBRA is wholly enmeshed in the Perry gravy train, which is precisely why their former Vice-Chair, Clifton Thomas gave $251,000 to Perry’s last gubernatorial campaign. We fear they will either get the water from End Op after all, if End Op is able to force LPGCD into granting the permits through litigation, or they will get the water from some other marketers in our counties (Alcoa? Sustainable Water, formerly Water Texas?) Remember, GBRA has received a $2.5 million secured loan from TWDB to research the 100-mile pipeline from Bastrop and Lee counties to the I-35 corridor, a project the TWDB has prioritized for further funding, despite protests from citizens in Bastrop and Lee. In short, there is no way the End Op lawyer’s plea that I-35 is “desperate” for water will fall on deaf ears of the Perry machine.
Here’s another real kick in the pants:
While End Op owns some land, it holds the bulk of its 17,000-acre holdings in Lee and Bastrop County through leases of water rights. A not so noticed provision in SB 332 (the “ownership of groundwater” bill passed under the nose of our legislators last session, who are either clueless, don’t give a damn or have leased their water, like Rep. Tim Kleinschmidt who is supposed to represent Bastrop and Lee county citizens) now seems coldly calculated to skew the Day case in favor of water marketers. SB332 amended the Water Code to essentially give private water vendors who lease water rights the same rights to groundwater ownership as Joe Blow landowner. We expect the ruling in Day will more than likely be construed to extend the takings protection to lessees of groundwater.
Wanna help? Come to Milano again on Wednesday, March 7, 10-4 pm — Milano Civic Center, 600 Avenue E and bring your lunch. You can also, whether you can attend or not, fill out an affidavit — click on the link below.
Click here and fill out this Affidavit if you live in GMA 12: Bastrop, Brazos, Burleson, Falls, Fayette, Freestone, Lee, Leon, Limestone, Madison, Milam, Navarro, Robertson and Williamson counties.
Are you ready yet to stand up local control and sustainability of water?