Forestar (USA) Real Estate Group, Inc. applied for operating and transport permits for 45,000 acre-feet per year of groundwater from the Simsboro Aquifer. A public hearing was held on the application where Lost Pines’ General Manager recommended that the board grant the full 45,000 acre-feet per hear. The motion was tabled at that meeting and taken up at a later meeting after the Board was able to consider other options. Environmental Stewardship had its attorney evaluate the General Manager’s recommendations and write a letter to the Board discussing his findings. Secondly, Environmental Stewardship wrote a letter to the Board outlining its reasoning for limiting the permit based on consideration of the adopted desired future conditions (DFC) and modeled available groundwater (MAG) as discussed in Lost Pines’ Management Plan.
Lost Pines Board Permits 12,000 acre-feet per year
The Lost Pines GCD ultimately limited the Forestar permit to 12,000 acre-feet per year based on protecting the adopted desired future conditions (DFC) of the aquifer. Forestar then requested “Findings of Facts and Conclusions of Law” and a rehearing of its application. These were the last steps in exhausting its remedies with Lost Pines District before suing in state district court.
The Lost Pines GCD Board of Directors essentially denied Forestar’s request for a rehearing at the October 16 board meeting by failing to take action on the motion. The lack of action on the request means the request will be denied after 90 days have elapsed (about November 5th). ES and its coalition partners wrote an open letter to the Board prior to the October meeting urging them to deny the permit which details our reasoning.
Separately, Forestar has entered into a contract with Hays County Commissioners Court to reserve 45,000 acre-feet of water per year (33,000 acre-feet of which it does not have a permit to pump). Hays County will be paying $1 million per year over the next five years for the reservation permit. The contract requires Forestar to take all means, judicial and otherwise, to obtain the additional 33,000 acre-feet per year of groundwater that it was not able to obtain by due process. We anticipate Forestar will seek judicial appeal (sue) of the Boards decision in late 2013.
On December 16, 2013, after reversing its earlier decision, the Lost Pines Board of Directors held a rehearing on the Forestar application. After presentations by the Applicant and the District, Environmental Stewardship (ES) presented a comprehensive review of previous information provided to the Board, responses to Forestar allegations, and presented new technical information on the impacts of the Applicant’s proposed pumping. The new information was from the work of a certified hydrogeologist, George Rice, who was retained to review the technical studies conducted by the District (called Groundwater Availability Model (GAM) files), and extract new information on the impact of pumping large quantities of groundwater on surface waters, the Colorado River, and other aquifers.
Rice’s report concluded: Forestar’s pumping would:
- Reduce hydraulic heads in the Hooper, Simsboro, Calvert Bluff, and Carrizo aquifers.
- Where these aquifers are confined, the reduced heads would cause water levels in wells to decline
- Where these aquifers are unconfined (i.e., recharge areas), the reduced heads would cause dewatering of portions of the aquifers.
- Reduce groundwater discharge to the Colorado River, thereby reding the amount of water flowing in the river.
It should be noted that this information was not extracted and reported to the Board by the General Manager when he made his recommendations to approve 100% of the applicant’s requested pumping.
Click here for copies of Environmental Stewardship documents:
Forestar’s Second Rehearing Request:
Forestar requested a second rehearing (a re-rehearing) that was denied by the Lost Pines GCD Board at its February 19, 2014 meeting. In our view, Forestar filed the motion in order to get some additional complaints into the administrative record having found some of the materials submitted in the first rehearing objectionable to its case (see above). Forstar complained that the Board listened to “public comments” and, in its terms, improperly used such information in making its decision to limit Forestar’s permit to 12,000 acre-feet per year. Forestar even complained that the Board listed to and used data and information provided by the District’s own hydrologist.
In filing the second motion it also took the opportunity to threaten the board members as being individually liable and subject to the upcoming suit in a last attempt to intimidate them to gain compliance with Forestar’s demands.
Forestar’s Lawsuit against the Lost Pines District and Directors:
Forestar (USA) Real Estate Group, Inc. has filed suit in the 335th Judicial District in Lee County against the Lost Pines Groundwater Conservation District and its Board of Directors (Case No. 15,369). The suit is 1) an appeal of the Boards’ decision to deny Forestar’s application for 33,000 acre-feet per year of the 45,000 acre-feet per year of groundwater it requested, and 2) a claim for the taking or damaging of its property, and for its damages and attorney’s fees due to the District’s actions (a takings claim).
Forestar (Plaintiff) includes as Defendants not only the Lost Pines Groundwater Conservation District (District), but also eight members of its Board of Directors “each in their individual capacities and in their official capacities as directors of the Lost Pines Groundwater Conservation District.”
Forestar claims that 1) “the District’s and the Board members’ decisions, findings, and conclusions violate Forestar’s rights,” and 2) “the District’s and the Board members’ decisions, findings, and conclusions have caused an uncompensated and unconstitutional damaging or taking of Forestar’s property”.
Forestar argues that its “uncontested application” should have been granted in full, and that the Boards’ decision “is not supported by any competent evidence in the record” because the Board relied on “public comments”. Quoting from Forestar’s petition, “the erroneous decision necessarily must be predicated on the Board’s unauthorized disregard of the uncontested evidence and its impermissible consideration of incompetent statements or other improper factors outside of the record. The only other statements made before the Board on which the Board’s refusal to grant the permits in full could have been base were “public comments” opposing the Application.”
Forestar further complains that the Board “extensively cited and relied on the information” provided by the District’s hydrologist in statements and slides presented during a special called Board meeting.
As public advocates of conservation and protection of these valuable groundwater resources, we are gratified that the information and concerns provided by Environmental Stewardship and others were convincing, and that the Board gave our concerns serious consideration in their decision.