Headline News
Go Back
2016-09-08

SOAH – now pumped water under the bridge

By Judith Pannebaker BCC Editor

At long last, a controversial issue between the Bandera County River Authority and Groundwater District (BCRAGD) and the Flying L Guest Ranch Ltd. is apparently headed toward resolution.
Administrative Judge Casey A. Bell presided over a State Office of Administrative Hearing (SOAH) Wednesday, August 31, at the Bandera County Justice Center. Bell is expected to rule on the matter early next year.
Backstory
BCRAGD directors requested a SOAH in October 2015 after more than a year of discussions and hearings regarding a protest from the Flying L Guest Ranch. Ranch owners, Robert “Jody” Nix and Susan Nix, requested a variance from a permit issued by BCRAGD General Manager David Mauk stipulating an allowance of 240 acre feet of pumped water per year.
They claim that Mauk arbitrarily changed their existing permit; that the ranch owns more acreage than the new permit is based on; and that their previous permit entitles them to pump 2,096 acre feet annually.
For the record, an acre-foot is one foot of water covering one acre, which equates to 325,851 gallons of water. Flying L pumps from the Middle Trinity Aquifer while Bandera’s water comes from the Lower Trinity Aquifer.
As a point of reference, the City of Bandera pumps around 200 acre-feet per year. However, as an attorney for Flying L pointed out, “The city does not own a golf course or water park.”
The Flying L also asked that their permit allow them to use the pumped water for agricultural, industrial, recreational and municipal use. They are currently permitted for commercial, domestic and irrigation usage only.
The Flying L’s permits serve the ranch’s golf course, time shares, waterpark and some residential units. The Flying L PUD, a public utility district, provides potable, drinking, water to the guest ranch and subdivision adjoining the ranch.
More backstory
In 2015, aware that internal negotiations were deadlocked, Greg Ellis, attorney for the general manager, suggested that the BCRAGD Board of Directors turn the hearings procedure over to the SOAH. “A contested hearing is like a trial and the board sits as judge and jury,” he explained.
SOAH provides an administrative judge to hear the case and ensure it follows the law. After the evidence has been properly presented, the judge makes a recommendation to the BCRAGD board.
Flying L Guest Ranch Ltd. agreed to split the SOAH costs – which are apparently considerable. However, BCRAGD is solely responsible for the expenses of its attorneys, expert witnesses and other costs.
Additionally, in November 2011, the Bandera City Council hired LBG Guyton Associates to represent the city’s interests in a Texas Water Development Board hearing at which the Flying L Guest Ranch challenged the 30-foot drawdown on the Trinity aquifer set by Groundwater Management Area 9 as a Desired Future Condition (DFC).
At that time the guest ranch could pump 325 acre-feet per year, while the city pumped 246 acre-feet. City administrators expressed concern that increased pumping by the ranch could negatively affect the water levels in the city’s wells.
In March 2012, the TWDB found the 30-foot average drawdown DFC reasonable.
Ruiz’s rationale
During a previous meeting of the river authority, attorneys for the Flying L, Rene Ruiz and Lou Rosenberg, offered their rationale for requesting an increase to 2,096 acre-feet of pumped groundwater.
The lawyers’ arguments were based on permits the ranch already held on seven wells on the property. Those permits indicated the maximum amount the wells would produce by pumping full blast for one minute.
If the wells pumped to that maximum, 24 hours each day, seven days a week, 365 days per year, the ranch would produce 2,096 acre feet of groundwater per year.
For their part, BCRAGD contends that the rates on the current permits are an “instantaneous rate,” the amount the wells are capable of pumping in one minute at full capacity. The rates were never intended to constitute an “annual rate,” according to BCRAGD.
‘Arbitrary &
capricious’
In his opening argument last week, Ruiz reiterated his belief that Mauk’s interpretation of the law was “arbitrary and capricious.” He also said, “The Texas Legislature adopted measures to make sure wells would not go dry as noted in Chapter 36.108 of the Texas Water Code.”
Ruiz referenced computer models run by the Texas Water Development Board to determine the Desired Future Condition of the aquifer in 50 years.
According to Ruiz, the Modeled Available Groundwater (MAG) in the Trinity Aquifer was 7,284 acre-feet. Taking into consideration all groundwater pumped by both permitted and unpermitted wells in Bandera County, according to Ruiz’s calculation, there would be between 3,300 and 4,500 acre-feet of groundwater left in the aquifer for permitting.
“The Flying L’s request for the 1,400 acre-feet they’re entitled to is within the budget,” Ruiz said. However, he failed to indicate when the ranch’s annual request changed from 2,096 acre-feet to 1,400 acre-feet.
“The statute states: ‘You shall issue permits up to the amount allowable to the DFC (of the aquifer)’,” Ruiz said.
As stated previously, the TWDB determined that the DFC would be a 30-foot drawdown of the aquifer in Bandera County over a 50-year period.
Ruiz continued, “Under the rules and statutes, (the Flying L) is entitled to the water to grow business and maximize resources. It will be good for the economy.”
He indicated the increased pumping requested by the Flying L was necessary for the golf course, resort waterpark and to supply water to a new development on adjacent property.
However, should the SOAH board rule against the Flying L, Ruiz hedged his bets by also asking the court to approve a variance, allowing the extra 1,400 acre-feet of groundwater to be pumped.
100 acres =
100 acre-feet
In his opening statement, Mark Osborn, attorney for the BCRAGD, countered that the rule Ruiz quoted, in part, also states that the number of acres equates to the allowable acre-feet of groundwater to be pumped. As an example, a 100-acre property could be issued a permit for 100 acre-feet of water.
Referencing the seven wells on the Flying L property, he said, “If there’s more than one well, the allowable acre-feet must be divided among the wells.”
Osborn continued, “You can’t produce too much from more than one well. Our goal is to protect and conserve the aquifer.”
Taking issue with what appeared to be the fluctuating acreage of the Flying L, he asked, “Is it 240 acres, 291 acres, 301 acres or somewhere in between.”
Osborn also argued that there seemed to be “no immediate need” for more groundwater. “Although they say they’re planning to build another golf course, triple the size of the waterpark and sell water to other entities, there’s been no evidence of when that will happen – no contracts, timetable or financing. These plans could be 10 to 15 years in the future. Let them ask for more water when they’re ready, but not now.” Flying L personnel also indicated they intended to put in another subdivision at some point.
Osborn also pointed out that to ask Judge Bell to grant a variance should his decision go against the Flying L was, in his opinion, inappropriate. “The (BCRAGD) board has total discretion to grant a variance and for a judge to do that would set a legal precedent,” Osborn said.
Substantial
uncertainty
Additionally, he noted that regardless of data produced by a water availability study “there is substantial uncertainty as to what is going to happen.” Osborn noted that computer models could not predict the exact amount of water in an aquifer or where that water is located.
“The goal is to conserve water and enable everyone to use their fair share. We want to protect well owners and not drain the aquifer,” he said. “Pumping hundreds of acre-feet per year would have significant impact on the aquifer – according to the Flying L’s own expert.”
Osborn added, “In the last seven years, the aquifer has had a 12-foot drawdown, which is three times as fast as it was projected to be.”
After Osborn completed his opening statement, Ruiz called Mauk to the stand and, for the next several hours, grilled him on various aspects of the workings of the BCRAGD and its rules.
Referencing a voluntary 30 percent reduction in golf course irrigation due to the drought, Ruiz asked, “If we consume 30 percent less water, do you think we really don’t ‘need’ the water?”
Mauk replied, “The reduction in usage was tied to a drought stage. It wasn’t an arbitrary request. Aquifer-wise the drought is ongoing. We need to be reasonable and protect the aquifer.”
How much
property?
There followed a discussion about how much property the Flying L actually owns. Mauk said he determined the 291 acreage using data from the Bandera County Central Appraisal District and from the water availability study.
According to Ruiz, the Flying L’s tally of 301 acres was arrived at by taking 291 acres associated with permitted wells along with an additional 10.37 acres ostensibly owned by the Flying L Guest Ranch.
Later, the attorney suggested that nine more acres in a platted subdivision also belongs to a timeshare, The Villas at the Flying L. However the deed to this property seemed to be registered to another entity, not the Flying L. Ruiz indicated the Flying L retained the water rights to this last piece of property.
Mauk noted that the Flying L PUD (public utility district) was permitted to pump 101 acre-feet as potable water for an adjacent subdivision. According to Mauk, pumpage for a public water supply is based on the number of connections rather than the number of acres.
Taking umbrage that the BCRAGD hasn’t as yet enforced rules against older wells that are, so far, not being permitted, Ruiz accused Mauk of “applying different standards” to different entities.
Mauk admitted, “I’m aware of other wells out there that predate the process – wells that should be permitted. We’re working on getting them permitted but that takes time and we have other operations.”
On redirect, Osborn reiterated that he believed the Flying L has only 291 acres. He also noted that in 2014, although permitted to pump 240 acre-feet, the ranch pumped only 199 acre-feet and in 2015, only 163 acre-feet.
The Flying L’s last official request to the BCRAGD was to increase pumpage 1,093 acre-feet of water per year.
Attorneys for both sides must submit their closing arguments to SOAH and a decision regarding the dispute should be issued in January.