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2014-10-16

BCRAGD, Flying L Ranch LTD continue quarrel

By Carolyn B. Edwards BCC Staff Writer

Golf course, water park, time share facility wants 10X amount used by City

Attorneys for Flying L Ranch LLC once again approached the board of the Bandera County River Authority and Groundwater District (BCRAGD) to demand that the authority approve their water well permits for 2,096 acre feet of pumping per year.
As a point of reference, the entire City of Bandera uses less than 250 acre feet of water per year.
An acre foot is one foot of water covering one acre. There are 325,861 gallons in one acre foot, so multiply that by 2,096 to picture how much water Flying L Ranch LLC is asking to have permits to pump.
Flying L pumps from the Middle Trinity Aquifer. Bandera's water comes from the Lower Trinity.
Flying L's attorneys, Rene Ruiz and Lou Rosenberg spoke during a continuation of a preliminary hearing held during the BCRAGD board's regular quarterly meeting held Thursday, Oct. 9. The preliminary hearing had begun on Monday, Sept. 29, during a called meeting of the board.
The lawyers' argument seemed based on permits the ranch already hold on seven wells on the guest ranch property. Those permits indicate the maximum amount the wells would produce if they pumped full blast for one minute.
If the wells pumped to that maximum, 24/7/365, the ranch would use 2,096 acre feet per year.
BCRAGD contends that the rates on the current permits are an 'instantaneous rate,' in other words, the amount the wells are capable of pumping in one minute at full capacity. The rates were never intended to be understood as an 'annual rate,' according to BCRAGD.
When BCRAGD changed their rules following a series of public hearings in March 2013, that method of measurement was no longer accepted. The river authority contends that through postings about the public hearings, permitted well owners were alerted about the proposed changes in the rules for permitted wells.
Flying L argues that they were not notified of the proposed changes, although sign-in sheets for BCRAGD meetings indicate that representatives from Flying L did attend meetings when rules changes were discussed.
The ranch's attorneys also at times seemed to be arguing in favor of being granted permits for one acre foot of water per year per acre of property. However, the numbers for the total acres owned changed frequently during the discussion. At one point the ranch representatives claimed the property was 540 acres. At another time, they seemed to be talking about having 291 acres, and at another time, 240 acres.
BCRAGD's counsel Richard Mosty opened the continued preliminary hearing on Thursday by saying both parties have been trying to narrow the issues down before going to the State Office of Administrative Hearings (SOAH), a process that might prove quite expensive for both parties. BCRAGD lobbyist and attorney Greg Ellis added, "We're all working hard to reach an agreement without going to SOAH."
Three issues Mosty said needed to be cleared up was the ownership of the ranch, the definition of beneficial use and the acreage covered by the permits.
BCRAGD's permits were issued variously to Harold Trip du Perier III, Flying L Resort, or Flying L Golf Course. In the course of the hearing, Ruiz and Rosenberg clarified that the permits should be issued in the name of Flying L Ranch LLC.
Currently, the permits allow the beneficial uses for irrigation, commercial, agricultural and municipal. Rosenberg said they'd like to add industrial to that list, but would not clarify what kind of industrial use the ranch might need in the future.
"The beneficial use is not an issue as long as we don't waste water," Ruiz said.
Board member Ernie DeWinne refuted Ruiz' contention that the ranch has never wasted water. "At the start of the drought, there were areas on the golf course that were like a swamp!"
The Flying L's permits serve the ranch's golf course, time shares, a water park and some residential units. A public utility district (Flying L PUD) provides the potable (drinking) water to the guest ranch and the subdivision adjoining the ranch.
Ruiz said the ranch would "be in a world of hurt economically" if BCRAGD cuts the permitted pumping limits. He intimated the ranch had negotiated a sizable loan for development using the 2,096 acre-feet per year number as collateral.
Ruiz said the ranch will definitely be requesting a variance.
Ellis replied, "If there is going to be a variance, I recommend a ground water study. The applicant has the burden of proof" to offer data to support a variance.
Ruiz said, "I don't think that's ever been done out there. It would be useful."
But, in fact, LBG-Guyton Associates did a ground water study on the "Results of Modeling the Impact of Production in the Vicinity of Flying L," submitted to BCRAGD on Sept. 4, 2013.
The LBG-Guyton study concludes with the following:
"Available hydrogeological information, historical pumpage records, and water level measurements in nearby wells were used to develop a conceptual understanding of groundwater conditions in the Middle Trinity Aquifer in southeast Bandera County.
"The information was used to develop a simple groundwater model to assess potential impacts from current pumping and potential future pumping in the area. The model incorporates hydraulic properties that are representative of the Middle Trinity in the area based on the pumping test data and also incorporates historical production measurements for wells owned by Flying L Ranch and Flying L PUD. Projected pumpage for other subdivisions in southeast Bandera County were also included.
"Scenario 1 assumes that Flying L Ranch pumps at 2012 rates (230 acre-feet/year) for 10 years and that other subdivisions will continue to produce to meet increased demand for build-out.
"The model indicates that after 10 years, the Middle Trinity Aquifer around Flying L would be mostly dewatered due to water level decline.
"Increasing the Flying L Ranch production to 439 acre-feet/year increases the rate of decline and the risk of dewatering the aquifer in the area."
Mosty finally summarized the main points of discussion. "You want a variance. We need documentation of 'beneficial use,' document the need; and a groundwater availability study."
Board member Karen Ripley said she would like to see an expanded explanation of what the ranch meant by 'industrial use.'
Ellis explained that some legal issues also raised by the ranch's representatives are currently being contested in state courts, including the takings issue and vested development rights. He recommended the BCRAGD board take no action on the matter regarding Flying L Ranch LLC's permits and continue the preliminary hearing to a later date.
The board concurred, unanimously. Members present included Don Sloan, Karen Ripley, Jerry Sides, Ernie DeWinne, Sid Gibson and Bob Williams.