Court Ruling on Large Volume Groundwater User Rules and Effect on LSGCD
CONROE, TX – On Friday, May 17, 2019, Senior District Judge Lamar McCorkle signed the Final Judgment declaring that certain Large Volume Groundwater User (LVGU) rules under the Lone Star Groundwater Conservation District’s (LSGCD) Regulatory Plan were adopted “without legal authority and consequently are, and have been, unlawful, void and unenforceable.”
The previous Board of Directors adopted rules that each LVGU must meet their Initial Conversion Obligation, beginning January 1, 2016, by reducing groundwater production by 30% of their Total Qualifying Demand (an amount based on their 2009 permitted authorization) or 10 million gallons of water annually. The Final Judgment clarified that the LSGCD did not have statutory authority to adopt, regulate by or enforce the 30% reduction rules as the rules have been unlawful, void, and unenforceable from the date they were adopted without legal authority.
Effective from the date of the ruling, the LVGU reduction rules are struck from the LSGCD Rules, Regulatory Plan, LVGU permits and any other LSGCD materials, and will no longer be enforced or used as a regulatory tool. The newly elected LSGCD Board is in the process of drafting new rules.
Last week the LSGCD received notice that the Texas Water Development Board (“TWDB”) found deficiencies in the submitted management plan. Specifically, the TWDB is requesting that the LSGCD use the 2010 Desired Future Conditions (“DFCs”) and associated Managed Available Groundwater (“MAG”) since the LSGCD’s 2016 DFCs were petitioned and declared no longer reasonable by an administrative law judge. The 2010 DFCs were adopted using the same flawed methodology challenged successfully in the petition of the 2016 DFCs. The dilemma the Board faces now is how to get its management plan approved by the TWDB without causing another round of lawsuits if it incorporates the 2010 DFCs into its plan.
Director Jim Spigener shared his concern. “The District must manage and regulate the groundwater in Montgomery County without violating Texas law and while protecting personal property rights. We cannot afford another expensive and divisive lawsuit. We are working with TWDB to get a new management plan accepted.”
Spigener continued by saying, “The TWDB’s decision not to approve the management plan does not change Judge McCorkle’s ruling or that Lone Star can no longer regulate via the void 30% reduction rule – the TWDB is an administrative agency that provides water planning, data collection and dissemination, financial assistance, and technical assistance including the review of management plans for completeness. The TWDB has no authority over Lone Star’s rules.”
The LSGCD has 60 days to appeal the TWDB’s decision or 180 days to resubmit the plan with the deficiencies corrected.
More information on the Lone Star Groundwater Conservation District can be found at www.LoneStarGCD.org. For questions, please contact LSGCD at (936) 494-3436.