Judge: Forestar can contest Bastrop water request

Developer, other property owners must show concrete injury caused by withdrawal.

Real estate developer Forestar and three additional landowners will be able to contest Bastrop’s request to withdraw about 650 million gallons of water annually from the Carrizo-Wilcox Aquifer, a state administrative judge recently ruled.

The city of Bastrop has been seeking a permit from the Lost Pines Groundwater Conservation District for almost two years to pump 2,000 acre-feet of water per year from the Simsboro formation of the Carrizo-Wilcox Aquifer using a well on the property of XS Ranch, a 9,000acre planned development north of the city limits.

Administrative Law Judge Michael J. O’Malley granted standing to three property owners near the proposed well site on July 2 and to Forestar on July 7, according to court documents.

In its brief, Forestar’s attorney argued that the company has already suffered an injury because the Lost Pines district, which regulates the water supply in Bastrop and Lee counties, partially denied its uncontested request for 45,000 acre-feet of water per year annually in 2013, only granting permits for 12,000 acre-feet.

Forestar had a contract with Hays County for the 45,000 acre-feet of groundwater. Per that contract, Hays County was paying Forestar a reservation fee for the permitted and unpermitted water, and eventually the county would pay a higher rate to pump the groundwater from underneath Bastrop and Lee counties and transport it west. In June, however, Hays County backed out of its deal with Forestar in a 4-1 vote, with only Hays County Judge Bert Cobb voting to continue the water contract.

Forestar’s attorney Ed McCarthy said the Hays County deal and contesting the Bastrop request “are totally independent actions.”

But the judge found in his ruling that any injury to Forestar could not be traced to the Bastrop request.

Still, the judge said Forestar did meet the requirement for standing based on the argument that more water production from the aquifer, including Bastrop’s request, would negatively affect the district’s ability to meet its desired future conditions and lead to reeling in Forestar’s production.

But for Forestar to succeed in the case, it “must show a concrete, particularized injury-in-fact that must be more than speculative, and there must be some evidence that would tend to show that the legally protected interest will be affected by the action,” the judge said in the ruling.

Bastrop took no stance on whether Forestar should be granted standing in the case, but its attorney Paul Terrill stated in court documents that “Bastrop believes Forestar is attempting to use this hearing to lodge misleading complaints about one of Forestar’s own permit applications.”

The property owners added to the case — Charles Tarket, the Caliva and Spencer Family Trust and Bar W Ranch — are represented by Lynn Sherman, an attorney who is also representing Jo Goertz of McCall Ranch and the six other landowners that live along Sayers and Phelan roads in Bastrop County.

In June, O’Malley granted the six landowners’ requests to join Goertz.

The landowners have testified at previous hearings that their only sources of water are wells on their properties, which they fear would be affected by Bastrop’s request.