Clearly there is significant public dissatisfaction with the Bandera County River Authority and Groundwater District (BCRAGD) approval for a combined total of 200 acre-ft/yr by Vanderpool Management, LP, the owners of Camp OTX (hereafter referred to as OTX). Having a personal interest in preserving our water resources in Bandera County for future generations, I have spent time reading the full 78-page report from the State Office of Administrative Hearings (SOAH) for the contested case hearing in Austin associated with this application by OTX.
It appears that this may be the first significant application that BCRAGD has encountered that has garnered such controversy and public interest. Bandera County has enjoyed relative isolation from major development that is found in the closer communities to our large neighbor San Antonio. However, with the significant developments that we see around Kerrville, Boerne, and others, it is time for Bandera to recognize that it will likely not be long before such development begins to arrive here. We should utilize the OTX experience to better position BCRAGD for future encounters.
Let me clearly state that I am not against using our groundwater resource, but rather we should be stewards. It is a resource to be carefully managed for both current and long-term future needs of Bandera County to promote both economic and environmental needs.
After reading the SOAH report it is clear to me that BCRAGD had no choice but to approve the application. The SOAH report by the Administrative Law Judges (ALJ’s) in Austin was clearly “won” by OTX. BCRAGD, with support from the Bandera Canyonlands Alliance (BCA), essentially lost at every turn. I too share disappointment with this outcome. If BCRAGD had disapproved the full OTX application of 200 acreft/ yr, it is likely that OTX (with the SOAH report in hand) would have sued BCRAGD and almost certainly prevailed costing the citizens of Bandera County even more money without benefit.
Instead of pointing fingers and shouting our anger (which solves nothing) I believe there is a better path forward. From the SOAH report I have identified some lessons learned and propose actions for BCRAGD to consider.
1) BCRAGD should investigate if it is legal to require an applicant in a contested case to a post a bond or otherwise cover in whole or in part the cost of BCRAGD hiring experts “[a]s the party seeking permits, Applicant has the burden of proof by a preponderance of the evidence.” (SOAH report, p. 6). If allowed, it should be posted clearly in the Application form and documented in the code.
2) There were several points of contention between the experts hired by OTX and BCRAGD/BCA. These issues related to assumptions or calculations such as, but not limited to; storativity, transmissivity, draw down, confined vs. semi-confined vs. unconfined aquifers, type of mathematical model used to calculate results, etc. As presented to the ALJ’s, it was “expert” vs. “expert”, leaving the ALJ’s to decide. Is there an institutional resource, such as a university (Texas A&M AgriLife Extension?) that could lend its substantial credibility to help resolve such issues and reduce the uncertainty of going before the ALJ’s?
3) The ALJ’s found it reasonable that pumping could cause a neighbor’s “… pump may need to be lowered to compensate for the drawdown and it may become more challenging and costly to pump.” (SOAH report, p. 28) This is patently unfair to me. I recommend that BCRAGD update the code to protect for this.
4) The current BCRAGD application does not require an applicant to specify the amount of groundwater to be utilized for each type of use: domestic, livestock, irrigation, and pond. This was a significant consideration by the ALJ’s in determining that OTX met the BCRAGD requirement by simply stating that these (less pond) are the intended usages. I recommend that the application be updated to specify quantities for each type of usage. Also, specifically for irrigation, there was considerable debate between the experts about the suitability of different types of land (slope, rock outcrops, etc.) for irrigation. I recommend that BCRAGD address this in the code as it appears to be a giant loophole.
5) OTX did not state in its application that any water, either wholly or partly, will be used for a pond. However, it is noted that OTX has already increased ponds from 3 to ~7 acres. (SOAH report, p. 43) BCRAGD should closely monitor the OTX facility for future expansion of ponds that were not declared that could either wholly or partly utilize water from the new wells.
6) OTX argued that BCRAGD allows 1 acre-ft/yr multiplied by the total number of acres which in turn allowed OTX in theory to pump up to 317 acre-ft/yr. If we were to assume that an “equitable distribution” of the Modeled Available Groundwater (MAG) were divided equally across all land in BCRAGD’s jurisdiction, then the OTX application for 200 acre-ft/yr is 22 times their “equitable distribution”(considering all 627 acres to be irrigated), despite their valid claim that their request was “only” 2.75% of the MAG. This is unsustainable. Consideration should be given to reducing District Rule 3.4Q from a maximum of 1 acre-ft/yr/ acre to a lower value.
I consider the OTX application to be a shot across the bow. It’s time for BCRAGD to step up to the plate and better prepare for the inevitable requests for future excessive claims on our groundwater resource. Fool me once, shame on you. Fool me twice, shame on me.
Mr. Dunn and his bride of many years are landowners in rural Bandera County. He is a semi retired 40+ year NASA engineer enjoying relocation from Houston to God’s Country.
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