Hays County water deal could spark legal battle

BY ERIN GREEN AND ESTHER ROBARDS-FORBES - AMERICAN-STATESMAN STAFF

 

A deal that was supposed to secure water for a fast-growing Hays County is one step closer to possible litigation that could set a precedent for water deals in years to come.

 

The Hays County Commissioners Court approved a contract this month to pay $1 million a year to a private development firm to call dibs on several billion gallons of water that would be pumped out of the aquifer beneath Bastrop and Lee counties.

 

The deal reserves 45,000 acre-feet of water — about 14.6 billion gallons — for each of the next five years. However, Forestar, the company selling the water, has permission to pump only 12,000 acre-feet a year from the Simsboro portion of the Carrizo-Wilcox Aquifer.

 

At its Oct. 16 meeting, the board of the Lost Pines Groundwater Conservation District, which controls pumping from the aquifer, denied the rehearing request made by Forestar, which had asked permission to draw the full 45,000 acre-feet of water.

 

Board member Bill Jarrell made a motion to grant the rehearing, but it died when no one seconded it. Lost Pines had 91 days from the time Forestar asked for a rehearing in mid-August to make a decision. If the board does not grant a rehearing soon, it leaves the door open for a lawsuit, experts said.

 

“I can tell you that if they deny the request at the next hearing, Forestar has already gotten the lawsuit together and Lost Pines will lose,” said Hays County Judge Bert Cobb, who has been negotiating with Forestar on the water deal.

 

Hays County is pushing ahead with the plan, Cobb said.

“All is not lost, and we are still proceeding,” he said. “It’s a blip on the radar.”

In securing the water deal, Cobb said, Hays County is following recommendations in the 2012 State Water Plan drawn up by the Texas Water Development Board. Hays County does not have plans anytime soon for a pipeline or water treatment facilities for the water secured through Forestar, but officials have said they hope that water deal will someday provide for thirsty towns and communities in Hays, Comal and Travis counties.

 

“Lake Travis has no water. The (Lower Colorado River Authority) has no water. The (Guadalupe Blanco River Authority) has no water,” Cobb said. “The water has to come from somewhere. I refuse to not solve this problem for our people.”

 

Hays County Commissioner Ray Whisenant pointed out that Forestar “has gone through private individuals to lease their water rights,” he said. Legally speaking, he said, “water rights are pretty well guarded in the state of Texas.”

 

One of the county’s goals is to keep the water in question available to a public entity with the hope of forming a regional coalition of governments to allocate it to thirsty communities, Whisenant said.

Environmental advocates expect Forestar to file a civil suit, perhaps in Bastrop County District Court, if the Lost Pines board doesn’t reconsider its decision.

 

“One of the biggest questions relative to a lawsuit is whether they will file a takings claim,” said Steve Box of Environmental Stewardship. A takings claim is “when you have taken my property, in this case water, and you have caused me harm in a capricious manner, and you have to compensate me for the loss.”

Linda Curtis of Independent Texans, another group active in water rights, calls the Forestar deal potentially “the next big test case on water,” which could involve not only Bastrop and Lee counties, but also Hays County, where Curtis said residents and other water rights advocates, such as Wimberley Valley Watershed Association member Malcolm Harris, are keeping a close eye on events.

Harris said he and other watershed association members and Hays County residents are worried about water rights events there.

 

“There are many of us in Hays County who are very concerned about the excessive pumping of the Trinity Aquifer and the damage it’s done to the watershed and to the area,” Harris said. “So we are very concerned and sympathetic to the Lost Pines Groundwater Conservation District and its aims to protect the watershed down there.”

 

Forestar did not return calls for comment on this story. But the company issued a statement in September saying it was “pursuing several alternatives … to uphold the rights of both area land owners and Forestar.”

 

“Central Texas faces a significant water crisis and Forestar remains committed to being a part of a responsible and economic water solution,” the firm’s statement said.

Box said the issue could pit the interests of growing urban and suburban areas against those of nearby rural areas. And, he added, Bastrop County “has a seat at the table” on whether the current rate of growth in Central Texas can be sustained.