Greetings!

The Texas Water Code is clear.  Though most groundwater districts and water hustlers don't want to admit it, truth #2 is:  Groundwater Conservation Districts were required by Texas law to STOP PERMITTING NON-EXEMPT WELLS on September 1, 2005.  They were not to resume permitting until their Desired Future Conditions (DFC) are in place, and their Management Plans and Rules in compliance with the science associated with their DFCs.  GCD's did not comply with the Texas Water Code and their permits issued since 2005 are SUSPECT, if not VOID.     

Environmental Stewardship, working with a local attorney, conducted a rigorous review of the Texas Water Code related to House Bill 1763, enacted in 2005 by the 79th legislature, which established the requirement that groundwater conservation districts work together to establish desired future conditions within their management areas.  Furthermore, we have vetted our findings with a premier Texas law firm with expertise in water law, and they have confirmed our findings.  Simply stated, Section 1071(f) of the new law should have invoked a moratorium on the permitting of non-exempt water wells starting September 1, 2005 and lasting until statutory requirements are met by Districts.  Exempt wells - domestic and livestock wells - were not to be included in the moratorium.  Non-exempt wells are, for the most part, commercial and irrigation wells.    

However, most groundwater conservation districts ignored the new law and simply continued business as usual, permitting water wells without legal authority.    

House Bill 1763 significantly changed water law to establish a comprehensive framework for collaboration among groundwater districts sharing the same aquifer(s).  By adding new science and data driven requirements about the aquifers, the legislature seems to have intended that a new balance be struck; one where the science leads policy in managing aquifers and permitting water to be withdrawn for commercial, non-exempt purposes, in order to protect aquifers from irreversible damage.      

Lost Pines Groundwater Conservation District (LPGCD), our local district for Bastrop and Lee counties, realized the application of House Bill 1763 to the District's permitting authority in the spring of 2010 and immediately established a moratorium on permitting non-exempt water wells, effective March 24, 2010.  The moratorium continues to be in effect.  (click here for the LPGCD Resolution establishing the moratorium).   

House Bill 1763, in establishing the moratorium on permitting, also established rules by which a moratorium can be lifted, and non-exempt water well permitting resumed.   Simply stated, the law requires a groundwater conservation district to:

1)  Have its desired future conditions approved,

2)  Have an estimate of its managed available groundwater (now "modeled available groundwater"), discharges to springs and surface waters, flows between aquifers, and 

3)  Have its management plan and rules revised to reflect the desired future conditions and approved by the Texas Water Development Board.

Very few groundwater districts are yet able to comply with the above conditions since the Texas Water Development Board has not established modeled available groundwater (previously managed available groundwater) for most districts and should not approve revised management plans and rules in the interim.   

Section 36.124 of the Texas Water Code establishes rules for determining when a groundwater district's acts or proceedings are presumed valid and no longer subject to challenge.  It expressly denies any presumption of validity to an act or proceeding if "the act or proceeding was void at the time it occurred." A credible argument may be made that permits granted without statutory authority under the Water Code are void, or at least voidable, and should be denied any presumption of validity under Section 36.124.   

Let your local groundwater conservation district know that you have concerns about the validity of their non-exempt well permits issued since September 1, 2005.  See the box below on the lower left to find contact information.      

Steve Box

Executive Director

Environmental Stewardship