Court: Bastrop County residents can’t contest permit for water

A pumping permit to allow water marketing company Recharge Texas to export up to 15 billion gallons of water per year from the Simsboro Aquifer has been reinstated after a Texas appeals court issued a verdict that blocked landowners in Bastrop and Lee counties from challenging the permit.

In 2016, the Lost Pines Groundwater Conservation District awarded the contentious permit to End Op — a water marketing company that now goes by Recharge Texas — after opposition from landowners and environmental groups. The company sought to pump water from the Simsboro Aquifer underneath Lee and Bastrop counties and sell it to potential customers in Hays, Travis and Williamson counties.

The groundwater district denied local landowners the chance to contest End Op’s permit, as they had no pumping permits of their own in the aquifer. The landowners then successfully sued the groundwater district in Bastrop County district court and won the right to challenge the permit.

The landowners argued that they should be a party in the case because excessive groundwater pumping would hurt the area’s streams and aquifers, drain their own private water wells and diminish their property values.

District Court Judge Carson Campbell sided with the landowners and ordered the groundwater district to withdraw End Op’s permit and allow landowners to contest the permit application in a new case.

“Apparently, Judge Campbell agrees landowners have a right to protest permits that threaten their legally vested property rights in the groundwater under them,” said attorney Ernest Bogart of Elgin, who is representing landowners.

The groundwater district and End Op took Campbell’s decision to the Third Court of Appeals. On Aug. 29, the appeals court overturned the lower court’s decision and found that “the district court had no jurisdiction over these orders,” the memorandum opinion read.

The opinion cited statutory law that says “only the (groundwater conservation) district, the applicant and parties to a contested case hearing may participate in an appeal of a decision.”

The court also wrote that landowners were barred from being parties in the case because they failed to timely file a “petition for review” of the groundwater district’s order that excluded them as a party to the case.

The landowners group said it does not know whether it will further appeal the decision to the state Supreme Court.

A similar groundwater fight is teeing up over an application the Lower Colorado River Authority has filed with the groundwater district to pump 8 billion gallons of water per year. The application, which was filed in February, is expected to go before the district’s board Sept. 26.

Already, environmental groups and landowners are organizing opposition. The Simsboro Aquifer Water Defense Fund has scheduled two meetings in Bastrop on Thursday “for anyone interested in a further conversation about the permit,” said the defense fund’s director Michele Gangnes.

In an op-ed published this summer, the LCRA said water pumped from the Simsboro Aquifer would serve current and future water customers within its service area, which includes more than 20 counties within the Colorado River watershed.