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2015-07-02

Flying L demands pumping variance from BCRAGD

By Carolyn B. Edwards BCC Staff Writer

10 times what city pumps
annually

It was attorneys versus attorneys at a special meeting of the Bandera County River Authority board of directors held Thursday, June 25. Kerrville attorney Richard Mosty represented the BCRAGD board, water issues expert and lobbyist Greg Ellis represented BCRAGD's General Manager David Mauk. Facing them were three attorneys for Flying L Guest Ranch Ltd., including their main spokesman, Rene Ruiz.
It's a challenge to simplify a long and complex discussion that has been going on between the two entities for over a year.
At issue is a "permit" from 2001 that includes an instantaneous pumping rate, ie the number of gallons the wells would produce if they pumped at full volume for one minute. FLGR argues that the 400 gallon per minute rate noted on their 2001 "permit" was in essence a permit allowing them to pump a volume of 2,096 acre feet of water annually.
In February of 2015, Mauk sent a letter to the ranch stipulating a permit for pumping 240 acre feet. Mosty said the GM would agree to a permit for 301.37 acre feet, a number based on new state water rules that allow for one acre foot of water per one acre of land.
Why a variance?
FLGR is requesting a 2,096 acre foot variance to that amount based on several points.
The ranch insists that it has an historical right to that huge volume of water based on the 2001 "permit." Ruiz contended Thursday that the general manager of BCRAGD "changed our permits arbitrarily."
They also claim that even if their permit is based on the one acre/one acre foot rule, they have an additional 238.18 "attributed acres." Those acres are now part of a subdivision on the ranch from which the ranch says it retained the water rights as part of the deeds and covenants when that land was developed in 1972. Water services to those lot owners are provided by a public utility district (PUD) which has its own permit (for 101 acre feet).
Ellis expressed concern that those property owners have not been represented in any of the discussions about the variance. "We're skirting dangerously close to an issue that needs to be settled in court," he said. Without any of the 1972 deeds in evidence, "we're essentially transferring groundwater rights without any of the lot owners present," he said.
Flying L is also wanting to expand the list of "beneficial uses" for which it can use the water. Currently commercial, domestic and irrigation use is permitted. FLGR wants to add agricultural, industrial, recreational and municipal use.
Ruiz said he didn't understand why the district wants to know how they plan to use the water. "Why do you care how we use it?" If the ranch reports usage, meters the water, and records it, "if we're not wasting it, why do you care?" He said the ranch would be happy to report the type of usage annually, while not being limited as to what that use might be.
Concern was expressed by the board about allowing for municipal use as that could lead to selling Bandera County water to municipalities outside the county.
Since the issuance of that first permit in 2001, Texas water laws have undergone major changes. BCRAGD has also had to overhaul their rules, and continues to do so, to keep in compliance with legislative changes. Everyone has, in the last few years, become familiar with new terms and their acronyms "Desired Future Conditions [DFC]," and "Modeled Available Groundwater [MAG]."
Here's the math
Here's where the math gets interesting. Ruiz explained that the MAG needed to maintain the DFC for Bandera County allows for an annual water budget of 7,284 acre feet per year. There are currently 2,178 acre feet pumped annually from exempt wells. That leaves 5,006 acre feet available to permit for the entire county. And FLGR wants 2,096 of those.
Throughout the discussion Ruiz was never able to explain very clearly just exactly how the ranch planned to use all of that water. (If you own 2,096 acres and covered it with one foot of water, that's how much it is.) He repeatedly said it would be used for the golf course, the water park, time share property and a 100-acre subdivision for which the ranch has already purchased the land. "We'll find beneficial uses for it," Ruiz said.
Mosty pointed out that the 100-acre investment property was not under consideration in the matter of the variance, which is for existing wells on ranch property owned when the permits were issued.
Board member Bob Williams commented, "You're saying you need as much water as Boerne and Kerrville needed in a year."
Ellis took the broad view when he observed, "part of [BCRAGD's] responsibility is to see to it that every land owner is entitled to their fair share of access to groundwater." Ellis also talked about the changes in state water law. "I expect the 1 acre equals 1 acre foot formula will change as time goes on."
Ellis also said his client is not looking to put FLGR out of business. The 301.37 acre foot proposal is more than the ranch has used annually for the last two to five years, where usage ranged from less than 200 to 300 acre feet. The 301.37 acre feet is over 682 million gallons of water a year.
Ellis pointed out that variances by their nature are not "generally forever." When the ranch expands its water park as planned or develops more property, their needs may change and they'll have to come back for another variance, he said.
Ellis said that whatever decision the district board makes regarding the variance, "we anticipate an appeal."
Thursday's session was fairly informal, and at its conclusion Ellis suggested the board consider hiring a professional hearings examiner to conduct a more formal procedure.
The squad of attorneys will, in the meantime, exchange more briefs and replies to briefs by July 23.
And that sucking sound you hear is the cone of depression that sits like an evil harpy beneath the city of Bandera growing ever larger as we continue to mine water from our aquifers.