Last fall, Vista Ridge applied to increase the amount of groundwater it will pump from Milam & Burleson County to ship hundreds of miles away to San Antonio. The first hearing on the application on October 3 was continued, and will reconvene on February 13. [Notice] FARFA sent the following letter to the Groundwater Conservation District in advance of that hearing:
Board of Directors
Post Oak Savannah Groundwater Conservation District
310 East Avenue C
Milano, Texas 76556
February 7, 2020
Dear Board of POSGCD:
As a landowner in the District, and on behalf of the members of the Farm and Ranch Freedom Alliance who live in this District, I submit the following statement for your consideration as you review Vista Ridge’s application to amend its permit to increase the amount of water to be withdrawn from the Simsboro Aquifer.
The Board has both the right and the responsibility to analyze the permit application and make an independent decision on whether to approve, deny, or conditionally approve the requested permit amendments. See District Rule 7.6. The staffs’ opinions, while obviously relevant, neither require the Board to approve the amendment request nor absolve the Board of its duty to determine if the application conforms to the Water Code and the District’s Rules.
This letter addresses the requested amendment to increase aggregate Simsboro well field production. While urging the Board to deny that requested amendment, I make no comment on the other two changes requested by Applicant (i.e. relocation of one well or the increase in instantaneous production in three wells).
Summary of the Issues
- The Applicant has failed to “demonstrate that the originally authorized amount is inadequate and the need to increase the withdrawals,” as required by Rule 7.8(1). That requirement applies whether or not the current permit is “underutilized.”
- In addition, since the current permit is underutilized, Applicant must meet the more stringent requirement in Rule 7.6(5) to “document a substantial need” to increase production.
- The Applicant is underutilizing its current permit: the recipient of the water (SAWS) has publicly stated that it needs only 35,000 AFY, yet the applicant’s current permit authorizes 50,993 AFY. This means that more than 30% of the water has no beneficial use in the foreseeable future.
- Even if one were to use the contracted amount as the basis for the “need” (which is not supported by the Water Code or the District Rules), Applicant’s current permit is still underutilized by 993 AFY.
- Close inspection of the application reveals a possible reason for the requested increase, buried in the technical attachments: Applicant may be seeking the additional water due to significant pipeline losses and evaporation. This is waste, not beneficial use.
- Applicant either didn’t want to acknowledge that it seeks the additional water for wasteful purposes or it has a different reason for the requested increase, such as attempting to evade the impact of the cutbacks that will inevitably occur.
- Granting the permit amendment to raise Applicant’s total allowable production to 55,835 AFY is not consistent with the District’s duty under the Texas Water Code to manage groundwater production so as to achieve the desired future conditions (DFCs) through the application of specific criteria, including modeled available groundwater (MAG).
- Applicant’s current permitted amount by itself will exceed the MAG every year from 2020 through at least 2069. Increasing the permitted amount, as requested in the amendment application, will only further exceed the MAG each year.
- The state-approved groundwater availability model in effect until recently (“Old GAM”) predicted that the Applicant’s current permitted pumping will exceed the DFCs for the Simsboro.
- The Board must determine the effect of the requested increased amount on the District’s ability to meet (as opposed to exceed) the DFCs for the Simsboro under the recently updated GAM (“New GAM”).
- The impact of Applicant’s pumping on other landowners and well owners will be greater than discussed at the October 3rd hearing. The New GAM indicates more communication (aka “leakage”) than previously understood will occur between the formations of the Carrizo-Wilcox Aquifer as a result of heavy pumping in the Simsboro. The District needs to understand the impact on all the formations in order to apply its permitting criteria to the amendment application.
- The Applicant’s underlying water rights are clouded due to ambiguities in the leases. This is a basis for denying the application entirely, or at a minimum requesting additional documentation.
Note that a decision to deny the amendment will not affect the original permit. Applicant will still be able to produce 50,993 AFY to transport to the San Antonio Water System (SAWS). Any arguments by Applicant that the amendments should be approved because not doing so would impede its contract are baseless.
Need, Underutilization, Beneficial Use, and Waste
Since Applicant seeks increased pumping allowances under both its Operating and its Transport Permits, the Board must determine if the requested amendment complies with District Rules 7 and 8.
Rule 7.6(2) states that the Board willconsider “the quality, quantity, and availability of alternative water supplies” in deciding whether or not to issue a permit amendment – without regard to whether an existing permit is being underutilized or not.
Similarly, Rule 7.8.1 requires documented inadequacy of the original permit as well as need for increased production, again irrespective of whether the permit is underutilized.
Rule 7.6(5) applies where an existing production permit is underutilized, and provides that the Board should consider whether the applicant has “document[ed] a substantial need for additional permits to increase production.”
Rule 8.1(5)(a) states that the District shall consider “the availability of water in the District and in the proposed receiving area during the period for which the water supply is requested, including any planned conjunctive use.”
Moreover, Rule 8.2(h) states that a transport permit application must “provide information showing what water conservation measures the applicant has adopted.”
If the water is to be resold to others, the application must also “provide a description of the applicant’s … leak detection and repair program for its water storage, delivery and distribution system, drought or emergency water management plan, and information on each subsequent customer’s water demands, including … alternative water supply, water conservation measures and goals… .” Rule 8.2(i).
Under Texas Water Code §36.113(8), the District is authorized to require Applicant to provide whatever information is needed to meet the rules in effect when the application was submitted.
Thus, this Board must consider:
- Whether the existing permitted amounts are inadequate, whether there is a need for additional water, and whether that need is “substantial” (Rules 7.6(5) and 7.8(1)).
- Whether the receiving area needs the additional requested water, given the alternative water supplies (Rules 7.6(2), 8.1(5), and 8.2(i)).
- What conservation measures Applicant has adopted (Rule 8.2(h)).
- The measures being taken to prevent leaks and waste during storage, delivery, and distribution. (Rule 8.2(i)).
The requirement for the Board to consider these factors goes beyond the question of whether staff (correctly or incorrectly) believes the application was administratively complete. The Board must make its own finding as to whether these requirements are in fact met.
The Applicant Failed to Demonstrate Need, Much Less Substantial Need
Rule 7.8(1) states: “A written, sworn application for a permit amendment to increase the authorized withdrawal or the withdrawal rate must be filed and an amendment granted before any additional production occurs. The applicant must demonstrate that the originally authorized amount is inadequate and the need to increase the withdrawals.”
In addition, the Board is required to consider “if the applicant has existing production permits that are underutilized and fails to document a substantial need for additional permits to increase production” in deciding “whether or not to issue” the permit amendment. Rule 7.6(5).
These two rules create two independent requirements:
- Every applicant seeking to increase the amount it is permitted to pump must demonstrate that the original amount is inadequate and the need for the increase. This is required whether or not the existing permit is underutilized.
- In addition, if the existing permit is underutilized, Applicant must not only demonstrate that the existing amount is inadequate, but it must also document a “substantial need” to increase the production.
Applicant has failed to meet both rules. It failed to demonstrate need in its permit application, much less that there is “substantial need.”
Mr. Terrill’s letter for Applicant declares: “Blue Water affirms that the Vista Ridge project does not currently hold underutilized permits and has a substantial need for the relocation of PW-18, the increase in aggregate Simsboro well field production, and the increase in instantaneous production of PW-12, PW-13 and PW-16.”
But Rule 7.8(1) doesn’t say that the applicant must “affirm” that it has a need – it requires the applicant to demonstrate that the originally authorized amount is inadequate and the need to increase the withdrawal. A vague, general, unsupported statement is not a demonstration.
Moreover, claiming that the existing permit isn’t underutilized doesn’t make it so, any more than saying that the sky is green makes it so.
Applicant already holds a permit for 50,993 AFY. It has a contract with the San Antonio Water System to deliver up to 50,000 AFY. Thus, under the current permit, Applicant is planning to pump 993 AFY more than will be sent to SAWS.
The actual amount that has no current beneficial use is far greater. SAWS has repeatedly stated that it wants to sell 15,000 AFY of the Vista Ridge water that it will receive. This was a major topic of discussion at the February 8, 2018 Special Session of the San Antonio City Council. So there is no actual need to be pumping and transporting 50,000 AFY to SAWS from the POSGCD region.
Having met with failure in its attempts to sell the excess, high-priced Vista Ridge water, SAWS has more recently turned to attempts to sell its less-expensive Edwards Aquifer water that the Vista Ridge supply will render surplus. In the last legislative session, SAWS sought passage of HB 1806, which would have allowed SAWS to sell Edwards Aquifer water outside its service area. The bill passed but was then vetoed by the Governor because it failed to respect all of the interests in the Edwards Aquifer.
If SAWS doesn’t need 50,000 AFY from the Simsboro and Carrizo, why is Applicant pumping and transporting that much – and seeking to pump and transport even more? It’s about contracts and profits, not actual need for water. Applicant makes money based on how much water it pumps and ships, and how soon it begins pumping. And SAWS is required to take up to 50,000 AFY, so long as Applicant delivers it, whether SAWS needs it or not.
Applicant will presumably argue that the District should look only to the face of its contract with SAWS, which calls for the delivery of 50,000 AFY. But this is flawed, because the mere existence of a contract doesn’t mean the water is needed or will be put to beneficial use.
The contract reflects financial considerations on the part of the contracting parties. In contrast, the issue under the Water Code and the District’s Rules is actual beneficial use and water needs.
In response to questions at the October 3rd hearing, Applicant’s attorney stated that SAWS knows about the supposed need for the additional water, along with an observation that SAWS is contractually bound to allow the additional pumping. But, again, this does not go to actual underutilization or need, as required by the District’s Rules.
Moreover, Applicant’s attempt to hide behind its contract not only doesn’t satisfy the rules, it doesn’t even make much sense. Applicant agreed to the contract terms many years ago, and presumably believed that its current permit was sufficient to meet its contractual obligations. Why is an increase needed? Under the District’s Rules, the burden is on Applicant to provide a substantive answer to that question. Applicant failed to meet both rules 7.8(1) and 7.6(5).
In addition, the Board is required to consider the “quality, quantity, and availability of alternative water supplies,” under Rule 7.6(2). Given SAWS’s repeated public, official statements about the excess water under the contract, this amendment application fails that test and the Board should deny the amendment.
Applicant’s Apparent Reason for the Permit Increase is for Waste of Groundwater
Obviously, Applicant knows why it “needs” more water and has simply chosen not to be forthcoming with that information.
Close examination of the application reveals a possible reason for the requested increase. Buried in the Appendices to the application, in its hydrologist’s Groundwater Modeling Technical Memorandum, is a statement that indicates that the additional water is to make up for losses that Applicant anticipates through leaks and evaporation:
Vista Ridge requests an increase in permitted Simsboro production of 4,842 acre -feet per year (ac-ft/yr) for a total Simsboro withdrawal of 40,835 ac-ft/yr. This increase is requested to ensure full water system production capacity with potential losses due to normal cooling tower operation and transmission system leakage.
Since Applicant’s attorney failed to clearly answer the Board’s questions or comply with District Rules as to why it seeks the increase, we can only speculate whether this is the reason. If it is, this is not a showing of a substantial need or even a beneficial use generally. Rather, it shows that Applicant seeks more water for wasteful purposes.
When added to the “extra” 993 AFY in the existing permit, the extra 4,842 AFY requested results in 10.45% of the permitted water amount being wasted. (i.e. Applicant plans to pump 55,835 AFY but only deliver 50,000 AFY). Under the original permit, only 1.95% of the permitted water amount was intended to be wasted (i.e. Applicant would pump 50,993 AFY to deliver 50,000 AFY).
All pipelines lose some water. The original 1.95% was arguably a reasonable figure. But why is the Vista Ridge project wasting more than five times as much water as originally estimated? Did Applicant not construct the pipeline to high enough standards to minimize leakage?
As for the cooling losses, why did Applicant not design its system so as to minimize the water losses from cooling? The Simsboro is known to produce “hot” water, so that was a predictable issue that Applicant should have addressed at the beginning of its project. Moreover, to whatever extent the water losses are due to cooling rather than pipeline leaks, it is illogical and wasteful for Applicant to seek to pump more water from the Simsboro, rather than seeking a water source that does not require as much cooling. This is reflected in the fact that the additional requested Simsboro water (4,842 AFY) is 11.9% of the total amount of water that would be withdrawn from the Simsboro under the amended permit – an even higher percentage of losses than for the project as a whole. Under the Texas Water Code, the “producing of wells from a groundwater reservoir” is waste if “the water produced is not used for a beneficial purpose.” Texas Water Code § 36.001(8).
Applicant has several courses of action open to it: deliver less water to SAWS, repair the leaks in its pipeline, or seek cooler water sources. The request to increase pumping is a wasteful choice and should be denied under the statute and District Rules.
Applicant Has Also Failed to Show Required Conservation and Related Measures
In addition to the requirement for every permit amendment application to show why more water is needed than already allowed under the applicant’s current permit, the District’s Rules include related requirements for transport permits.
Rule 8.2(h) states that a transport permit application must “provide information showing what water conservation measures the applicant has adopted.”
Rule 8.2(i) further requires that, if the water is to be resold to others, the application must “provide a description of the applicant’s … leak detection and repair program for its water storage, delivery and distribution system, drought or emergency water management plan, and information on each subsequent customer’s water demands, including … alternative water supply, water conservation measures and goals….”
These Rules are consistent with the statutory directive to consider the availability of water in the proposed receiving area. See Texas Water Code §36.122(f)(1).
As discussed above, Applicant has failed to meet Rule 8.2 in its own planning, by building a pipeline and cooling system that will waste more than 10% of the groundwater it pumps.
In addition, it appears that the recipient of the water also fails to meet the requirements. On its website, SAWS claims that the water from POSGCD’s area is “drought-proof” and “will be delivered even in the deepest drought.” This claim, on its face, contradicts the requirement for the water purchaser to have a drought water management plan. SAWS appears to assume that the Simsboro is endless, without regard to the DFCs or the impact of drought. Rather than take steps to promote conservation and plan for drought, SAWS’s attempt to sell Edwards Aquifer water under HB 1806 shows that it plans to promote water usage and receive 50,000 AFY of water from this District, regardless of drought or over-pumping problems.
The Alternative Explanation is Applicant Seeks to Circumvent Future Necessary Cutbacks
Applicant’s failure to demonstrate that its existing permit is inadequate and a substantial need for an increase is grounds, by itself, for denying the application.
The Applicant’s wasteful use of water is a further reason to deny the amendment, although whether it is the actual reason Applicant has applied for the increase is speculative.
Another possibility exists: Applicant wishes to increase the permitted amounts now, before it begins pumping and the severe impacts to the groundwater in the District become unavoidably clear, so as to insulate itself from cutbacks.
The District’s rules authorize it to curtail groundwater pumping, although the triggers for such cutbacks are ambiguous and will likely lead to costly and contentious legal actions. Under Texas Water Code §36.1132, the District has a duty to issue permits up to the pointthat the total volume of exempt and permitted groundwater production will achieve the DFC. Section 36.1132 also directs the District to consider the MAG set by the Texas Water Development Board (TWDB), most recently in 2017.
Since pumping under Applicant’s existing permit alonewill exceed the MAG for each of the Simsboro and the Carrizo formations for the life of the contract, it is almost a certainty that the District will have to impose cutbacks to permits once Applicant begins pumping in order to avoid violating the DFCs for each formation.
But SAWS apparently believes that it will not be subject to such curtailments. SAWS attorney and lobbyist, Steve Kosub, at the Texas Water Conservation Association Groundwater Committee meeting on September 7, 2018, was heard to say that SAWS will not be bound by the District’ uniform curtailment rules in the event the Simsboro Aquifer is degraded by permitted pumping. Consider also SAWS unequivocal plan to pump at least 50,000 AFY for another 30 years when it assumes ownership of the project at the end of the contract term.
The requested amendment would be a step towards helping SAWS insulate itself from necessary cutbacks.
Consider a 2% cutback, which is the current default in the District’s Rules. If Applicant is granted the permit amendment requested here, a 2% cutback will mean that it will still be able to pump 54,718 AFY – more than its contract with SAWS calls for. It would take a 10% cutback just to limit Applicant to its current permitted amount.
Thus, increasing the amount that Applicant is authorized to pump will have two effects: (1) it will speed up the rate at which the DFCs will be exceeded and cutbacks will have to be imposed on every user in the District and (2) it will simultaneously buffer Applicant from feeling any real impact from the cutbacks until long after the other users in the District. This is not consistent with the District’s duties under Texas Water Code §36.1132.
If this amendment is approved, then win or lose any litigation, the Applicant or SAWS will still be free to pump at least 50,000 AFY for the foreseeable future, while other well owners pay the price for their overpumping.
Consistency with the District’s Management Plan, the DFCs, and the Impact on Others
Statutory Provisions and District Rules
Under Chapter 36, “Each district in the management area shall ensure that its management plan contains goals and objectives consistent with achieving the desired future conditions of the relevant aquifers as adopted during the joint planning process.” Texas Water Code §36.1085.
In addition, the Code provides that a district, “to the extent possible, shall issue permits up to the point that the total volume of exempt and permitted groundwater production will achieve” its DFCs. Moreover, the district is directed to consider the MAG determined by the TWDB. Tex. Water Code §36.1132(a) & (b).
Production of the full 50,993 AFY as early as 2020 under Applicant’s existing permit will exceed the currently established MAG every year from now through 2069 for both the Simsboro and the Carrizo formations. Exceeding it by an additional 4,842 AFY in the Simsboro is not consistent with the District’s statutory duty to achieve the DFCs.
In past meetings, Mr. Westbrook has brought up the fact that, in the past, the actual pumping in the District has been significantly below the MAG. The implication, sometimes explicitly stated, is that we have effectively “banked” water, and can exceed the MAG without overshooting the DFCs. Yet the TWDB adjusts the MAG every five years, taking into account the pumping that has been occurring. Thus, our current MAG is the most accurate measure possible of how much water can be pumped each year without exceeding the DFCs. It’s important to recognize that the past differences between actual and permitted pumping amounts were due to the fact that most projects did not go into full production until several years after pumping started, if ever. This will not be true of Applicant’s permit amendment, with pumping due to commence at full levels in just a couple of months. Based on the public statements by Applicant, the Board must assume that its permit – whether existing or amended – will be fully utilized beginning this year, with the result that actual production will exceed the MAG for the foreseeable future.
The Request for Additional Water Should Be Denied Because of Its Impact on the Management Plan and DFCs
Under the groundwater availability model that was in place until just recently (Old GAM), Applicant’s existing permit was predicted to cause the DFCs to be exceeded. That information wasn’t available when Applicant’s original permit was granted, but has been known for some time.
If Applicant claims that the New GAM indicates that the permitted amount – and its even higher requested amount — will not cause an exceedance of the DFC, the District should confirm whether this is accurate for all formations of the Aquifer, as discussed further below.
The New GAM only became available in late 2018, and thus requires careful scrutiny to understand all of its implications.
At the October 3 hearing, Applicant’s and the District’s hydrologists’ presentations focused on the claim that the New GAM predicts lesser drawdowns in the Simsboro than the Old GAM. While that sounds good, the reality is more complex.
First, the question isn’t whether the predicted drawdowns are less than previously anticipated. The question is whether the predicted drawdowns under the amended permit will stay within or exceed the DFCs for the affected aquifers. Since Applicant is seeking to amend its permit, rather than apply for an entirely new, separate permit, the answer must look at the full amount of pumping under the amended permit (i.e. 55,835 AFY). What would be the impact of the total amount of Applicant’s amended permit on the DFCs for the Simsboro?
Second, that question must be answered for both the Simsboro and the other aquifer formations. See Rule 7.6.3 (Board must consider impacts on all water resources).
The New GAM predicts potentially less drawdown in the Simsboro for multiple reasons, including that it more accurately accounts for communication between aquifer formations.
In other words, the New GAM’s prediction of lesser drawdowns in the Simsboro supports the conclusion that heavy pumping in the Simsboro will reduce the hydraulic pressure in the formation, and water will be drawn into the Simsboro from the aquifer formations above and below it. The result will be drawdown in the contributing formations, as they are dewatered to supply water to the Simsboro.
At the October hearing, neither Applicant’s nor the District’s hydrologist clearly discussed the impacts of the amended permit on the DFCs, including whether the total pumping under the amended permit would result in compliance with the DFCs in neighboring formations, or whether one or more DFCs would be exceeded.
It should be noted that even the Old GAM predicted that water from adjacent aquifers would flow into the Simsboro to some extent. In his 2015 report, “Effects of Vista Ridge Pumping on Groundwater and Surface Water in the Lost Pines and Post Oak Savannah Groundwater Conservation Districts”, George Rice, a respected San Antonio hydrologist and former board member of the Edwards Aquifer Authority, used the then-current GAM to specifically address inter-formational leakage the Vista Ridge pumping will induce. In that report, he states:
“Pumping would occur in the Simsboro (36,000 ac-ft/yr) and Carrizo (15,000 ac-ft/yr) aquifers. This pumping would reduce hydraulic heads (i.e., water levels or hydraulic pressure) in these aquifers. However, because of leakage, hydraulic heads would also be reduced in the Hooper, Calvert Bluff, and Queen City aquifers (figure 1). In other words, Vista Ridge pumping would cause water from these aquifers to be drawn into the Simsboro and/or Carrizo aquifers. The maximum reductions in head (drawdowns) in all five aquifers, as predicted by the model, are given in table 1.
“The drawdowns extend to both the confined and unconfined portions of the Simsboro and Carrizo aquifers. Where the aquifers are confined, drawdowns will reduce water levels in wells that draw water from the aquifers. Where the aquifers are unconfined (recharge areas), drawdowns will dewater portions of the aquifers.”
The new GAM more accurately models the communication between the formations. It is not enough for both Applicant and the District’s hydrologist to summarily pronounce there is no communication between aquifers around this particular well field. The New GAM’s lesser drawdowns in the Simsboro means this “water subsidy” has to come from somewhere, and that source needs to be considered.
While the application provides graphs of the drawdown around the wells under the New GAM, it is not clear if Applicant has addressed the issue of whether total pumping will lead to the District exceeding the DFCs for the Simsboro or for other formations. This is a key question that the Board must address before approving the increased pumping.
The Impacts on Nearby Landowners May Be Even More Severe
Groundwater availability models “have been and will continue to be used to estimate the modeled available groundwater for each aquifer for each groundwater conservation district.” However, it is widely recognized that while they are useful planning tools, GAMs are not as suitable for predicting more localized impacts to groundwater levels.
So consider the actual local experience in Milam County, which demonstrates how severe and long-lasting localized impacts of heavy pumping can be, on the formation being pumped and potentially on the neighboring formations.
The attached report by Dr. Curtis Chubb briefly reviews the effects of the pumping at Alcoa’s Sandow strip mine in Milam County from 1988 to 2010. See Appendix B. Alcoa’s average annual pumping was less than half the amount of Applicant’s already permitted amounts. Yet the Simsboro wells that Dr. Chubb studied in that area still have not fully recovered from the drawdowns caused by Alcoa’s pumping.
Given the New GAM’s information on induced leakage from aquifer formations due to heavy pumping in another formation, the data surfaced by Dr. Chubb raises the question of how much damage Alcoa’s pumping caused to wells not only in the Simsboro but also in other formations. While not dispositive of that issue, it is instructive that “Alcoa had to either modify or replace 485 landowner wells in Milam and Lee Counties between 1988 and 2009.” (The Railroad Commission’s regulation of strip-mining requires that wells affected by a miner’s groundwater pumping be mitigated by the miner.)
The local impact on the Simsboro and its neighboring formations must be considered. The rules don’t direct the District to issue a permit after looking solely at the formation in which the well will be placed. Rather, Rule 7.6(3) directs that the Board will consider the impact on other landowners and well owners from a grant or denial of the permit.
As with all of the Rule 7.6 requirements, the requirement to consider the impact on other landowners is not limited to when there is a contested case hearing.
Problems with the Claimed Water Rights
Applicant’s water leases were obtained by MetWater. A copy of a letter sent by MetWater to a landowner within the POSGCD District shows that MetWater made the following representation:
“The following are some of the key elements of the lease regarding the use of your land once you have leased your land to MetWater: … (ii) you have the ability to drill and operate as many water wells as you so desire.”
In addition, the lease with that landowner included the following provision:
“3. Groundwater. …. Notwithstanding the provisions of this paragraph, Lessor may construct and install, or continue to operate, one (1) or more water well(s) that withdraws groundwater solely for Lessor’s domestic, livestock watering and/or irrigation purposes for beneficial use on Said Lands only, and not for any industrial/commercial purposes and/or sales to third parties.” (emphasis added)
Prior to the October 3 hearing, I presented the Board with information that this landowner did in fact apply for and was granted a permit to install an irrigation well for one-acre-foot of water per acre of his land. At the same time, Applicant was claiming the full water rights (two-acre-feet of water per acre) under the lease, in its permit application.
Once I brought attention to this problem – which had actually occurred over a decade ago – Applicant amended its permit application.
But the problem isn’t fixed because Applicant amended its statement once I pointed out its false claim of water rights from that property. It is unknown how many of the other leases that Applicant is relying on for its claimed water rights have similar provisions. The typical form of Memorandum of Lease that Applicant cites in its permit application does not allow the District to identify which landowners retain the right to drill their own non-exempt irrigation wells.
Moreover, as illustrated by what actually happened with this landowner, there is no provision in Applicant’s current permit, or proposed for this amendment, that would ensure that adjustments are made to the permitted water rights if and when other lessors seek to exercise their legitimate water rights in the future.
The amendment application fails to satisfy numerous District rules, both in terms of the information provided by Applicant and the factors the Board is directed to consider:
- Rule 7.8(1): The amendment application does not demonstrate that the originally authorized amount is inadequate and the need to increase withdrawals
- Rule 7.6(1) and Rule 8.1(5)(c): Production of the Applicant’s current permitted amounts starting this year will exceed the MAG through 2069 for both the Simsboro and the Carrizo formations. Pumping another 4,842 AFY from the Simsboro, as requested by Applicant’s amendment, is not consistent with the District’s statutory duty to achieve the DFCs and be consistent with its management plan.
- Rule 7.6(2) and Rule 8.1(5)(a)): Given SAWS’ repeated public statements (as well as its actions in seeking passage of HB 1806), it is apparent that there are alternative water supplies available without increasing production from the Simsboro.
- Rule 7.6(3) and Rule 8.1(5)(b): The impact on other landowners and well owners has not been sufficiently addressed, given that the communication between formations means that increased pumping from the Simsboro is likely to impact wells in the formations above it.
- Rule 7.6(4), Rule 8.2(h) and (i), and Rule 8.4(g): The request for additional water reflects wasteful use, not beneficial use.
- Rule 7.6(5): Applicant’s existing permit is underutilized, and it has failed to document a substantial need for increased production
Each of these rules is an independent basis for the Board to deny the requested increase in aggregate Simsboro well field production.
Executive Director, Farm and Ranch Freedom Alliance
P.O. Box 809
Cameron, TX 76520
 Permit Supporting Information, Groundwater Modeling Technical Memorandum, page 15, re Amendment 2 (Page 51 in the pdf file for part V of the Application)
 https://www.saws.org/your-water/new-water-sources/current-water-supply-projects/vista-ridge-pipeline/about-this-project/ (“Ownership of the wells and pipeline system will transfer to SAWS at the end of the term, after which a separate agreement with the owner of the groundwater leases, Blue Water Vista Ridge, will give SAWS the ability to continue production for an additional 30-year term and deliver the water at a much lower price”. )