Lone Star Groundwater Conservation District to appeal TWDB bureaucratic ruling, votes to move back towards transparency

Lone Star Groundwater Conservation District to appeal TWDB bureaucratic ruling, votes to move back towards transparency

Image: Geologist Mike Thornhill presented a proposal, which he and geohydrologist Bob Harden prepared, to begin a comprehensive study of the interaction between groundwater pumpage and subsidence in Montgomery County, to the Lone Star Groundwater District Board of Directors at their Tuesday, July 9, 2019, meeting. The Board accepted the proposal to begin the study Phase One of which will cost taxpayers $60,000.

Conroe, July 15 – At its Tuesday, July 9, 2019, meeting, the citizen-elected Board of Directors of Lone Star Groundwater Conservation District (LSGCD) opted towards transparency and drew the line in the sand to fight the Texas Water Development Board’s May 16, 2019, disapproval of the Board’s groundwater management plan which is less restrictive of groundwater production in Montgomery County than the previous unelected Board’s plan.

While the LSGCD Board opted towards transparency, it’s apparent that problems still remain among some elements of the Board who seem to have an “us versus them” approach to the public’s interaction with the LSGCD as a whole. The majority of the Board, however, seems to understand how important the public dissemination of ideas actually is and to understand that the district as a whole has no right whatsoever to block the public from particular information (with some very limited exceptions).

Simon Sequeira, President of Restore Affordable Water (RAW), a citizens advocacy and pro-property rights organization which was largely responsible for electing the seven current Board members in the November, 2018, General Election, opened the meeting with a brief but important citizen comment:

“I want to caution you to communicate to the public. If you don’t tell your story, then other people will tell it for you.” – – Simon Sequeira, President of Restore Affordable Water, speaking to the Lone Star Groundwater Conservation District, Board meeting, Tuesday, July 9, 2019.

Subsidence Study

LSGCD’s Board is proceeding with a $60,000 study of subsidence in Montgomery County and its relationship, if any, to groundwater production in Montgomery County in particular and from the Gulf Coast aquifers in general. Renowned geologist Mike Thornhill presented the proposal of his and hydrogeologist Bob Harden to the Board.

Thornhill acknowledged that groundwater pumpage does have some relationship with subsidence, which, he noted, was one of the two top considerations behind the formation of LSGCD in 2001. Despite that, Thornhill explained, “Lone Star has done no real independent study of subsidence but has relied on the work of the United States Geological Survey and the [Harris-Galveston] Subsidence District work.”

Phase I of the study would assess past and current investigations and define what more detailed and technical evaluation is necessary for modeling subsidence in the future in Phases II and III. The cost to the taxpayers of Phase I will be $60,000 or less.

“We will start with background data from USGS and the Subsidence District,” Thornhill said. He explained that the Texas Water Development Board (TWDB), University of Houston, Rice University, and Texas A&M Water Resources Group have also gathered subsidence data. “We want to develop a database in proper formats to sort and analyze the data and look at spatial relationships between geology, hydrology, and water pressures…We would like to put this information on the district’s website for the public to get to it easily.”

One of the big questions Thornhill and Harden will address is whether the Groundwater Reduction Plan (GRP), which LSGCD and the San Jacinto River Authority have aggressively implemented, have had any impact on mitigating subsidence. Thornhill and Harden intend to complete the Phase I study by November 30, 2019, but couldn’t provide estimates for the time of completion of the full subsidence study, which will include the later phases.

The Board voted five (Bouche, Melder, Prykryl, Rogers, Traylor) to zero to approve the study.

Transparency issues: Board moves forward and backwards

The Board made an important stride forward with respect to transparency and possibly in response to Sequeira’s expressed concerns at the beginning of the meeting.

On a unanimous vote, on the motion of Director Larry Rogers, the Board voted to rescind its action a month earlier to require all district consultants to execute non-disclosure agreements which would prohibit them from communicating with the public about their work for the district. Obviously, preventing Thornhill and Harden from speaking publicly about subsidence issues would permit others, such as the San Jacinto River Authority’s General Manager Jace Houston or Woodlands Joint Powers Agency President Jim Stinson, to present their views on subsidence and the role of groundwater production in causing it, while LSGCD’s consultants, who may have very different viewpoints, would have to stand mute.

Rogers made clear that “the vote before was to require all district consultants to sign non-disclosure agreements.”

LSGCD Vice President Harry Hardman was absent from the meeting for a family emergency. Nevertheless, Hardman, who had urged the adoption of non-disclosure agreements for the district’s consultants, provided a written statement for President Webb Melder to read at the meeting:

“I apologize for being absent at tonight’s meeting, but I am in Lubbock attending to my aging Mother’s health. I have reviewed the posted agenda and see there is an agenda item to “Discuss, consider, and take action as necessary regarding District’s Confidentiality and Non-Disclosure Agreement.” Since this issue is important to me and has received negative and inaccurate publicity since our last meeting, I provide this statement regarding the NDA policy the Board adopted in our June meeting.

“I was the Director who asked for this policy to be considered and voted on in our last meeting due to the fact that we were considering hiring a Public Relations person to coordinate activities on behalf of the District. My primary reason for recommending the NDA in connection with a PR consultant was based on learning about an incident at the High Plains GCD. The High Plains GCD was going through the process of changing its rules from spacing only to spacing plus production limits. Evidently, the proposed rules changes were hotly contested and incorrect information was rampant. The GCD used a PR firm that it has historically used to help with messaging. The PR firm was well known in the area and familiar with the group that was adamantly opposed to the rule changes and also the source of misinformation. The PR firm worked directly with the General Manager and would then repeat all information, including highly confidential information, to the group opposing the rules. The issue was not preventing transparency—the issue was that the GCD’s own consultant was using the highly sensitive/confidential information the consultant obtained from the General Manager against the GCD (and being paid all the while). Unlike other types of consultants, PR firms and those with related marketing degrees are not subject to licensing, which normally would require the licensed professional to hold him/herself to certain ethical standards. An NDA is the only way to try and protect a GCD from this type of abuse for those consultants that do not have ethical standards built into their licenses.

“My recommendation for the board to adopt an NDA is in no way a reflection on the integrity of the PR firm the Board was considering. I was merely trying to act prudently to protect the District from what happened to another GCD.

“Since the District voted not to hire an outside PR firm, I do not see the need for an NDA to be in place at this time. For the record, NONE of the LSGCD’s Consultants have ever been, or are now, subject to an NDA with the District. This board ran on, and I remain personally committed to, transparency. I hope this statement puts the minds of the citizens of Montgomery County at ease that the District continues to work on behalf of the best interests of its constituents and is committed to transparency as authorized under the law.

“I leave it to my fellow directors to discuss, consider and take any action they deem necessary regarding the NDA.”

Hardman at least didn’t oppose reversing the terrible decision of LSGCD’s Board last month to require all district consultants to sign the non-disclosure agreements. His statement’s references to the attempt by High Plains GCD to mute its public relations firm showed the unconstitutionality of such actions which are nothing short of a prior restraint on Free Speech in violation of the First Amendment and which are nothing short of government secrecy in violation of the Texas Public Information Act. Government agencies, of course, have no business spewing propaganda with tax dollars to make themselves look better. The public should have unfiltered access to governmental entities.

Hardman at least didn’t oppose reversing the terrible decision of LSGCD’s Board last month to require all district consultants to sign the non-disclosure agreements. His statement’s references to the attempt by High Plains GCD to mute its public relations firm showed the unconstitutionality of such actions which are nothing short of a prior restraint on Free Speech in violation of the First Amendment and which are nothing short of government secrecy in violation of the Texas Public Information Act. Government agencies, of course, have no business spewing propaganda with tax dollars to make themselves look better. The public should have unfiltered access to governmental entities. 

Hardman is correct that his recommendation for the Board to adopt NDAs as Board policy didn’t reflect on the integrity of anyone. It did reflect upon a brief instance of misunderstanding by Hardman and the Directors who voted for them with respect to the role of government in the American system of Constitutionalism and the Texas system of transparency.

Fortunately, the LSGCD Board reversed the unwise action they had previously taken in June by a five to zero decision on July 9.

In an unusual move, the Board then decided to move executive sessions to the beginning of their meetings right after public comment. The executive session this past Tuesday lasted one hour and three minutes. The Board left the meeting room and left the public audience behind to wait. By moving executive sessions to the beginning of meetings, the Board will make far more likely that the public audience will have an opportunity to watch the Board live during deliberations.

Appeal of Texas Water Development Board’s May 16, 2019, decision

The Board met with its lawyer for an hour and three minutes in executive session.

The Board failed to identify the subject of the executive session before they went into executive session in violation of the Texas Open Meetings Act and in violation of a specific ruling of the Supreme Court of Texas in the 1986 case of Cox Enterprises, Inc., versus Board of Trustees of Austin Independent School District.

After the lengthy executive session, the Board returned to the meeting room.

Jonathan Prykryl, one of the more open and transparent members of the Board then made a significant faux pas when he said, “I think everybody on this board is of the same frame of mind as I am to authorize Ms. Reiter [LSGCD Interim General Manager] and legal counsel to file an appeal of the TWDB.”

Specifically, Prykryl, in all of his openness and forthrightness, disclosed that the Board had deliberated during the executive session to the degree that he already knew how the Board would vote on a matter in which they had not yet publicly deliberated! The law under the Texas Open Meetings Act could not be more clear. While the Board may meet with the attorney in an executive session to legal advice, the Board cannot debate or deliberate such matters unless they are in open meetings.

That problem has become very apparent, however, with this Board of Directors. They’re clearly using executive sessions as a pretext to discuss matters, which they should debate and deliberate in the open instead. (At the point that occurs, Board members should object or walk out of the meeting. Montgomery County Hospital District General Counsel Greg Hudson has for two decades made very clear that Board members may not debate issues in executive sessions with the attorney. Instead, they may only gather information and must save their debate and deliberation for the open meetings.)

With very little discussion, other than a formal statement which the Board’s attorney then read, the Board of LSGCD voted unanimously to appeal the May 16, 2019, decision of the Texas Water Development Board (TWDB) to disapprove the LSGCD’s Groundwater Management Plan.

LSGCD’s General Counsel Stacy Reese explained in her formal statement during the open meeting that LSGCD is appealing the TWDB’s denial of approval for the less restrictive groundwater regulations in the Board’s new Management Plan because:

  • TWDB has sought impose Desired Future Conditions upon Montgomery County’s groundwater production which fall under a now-invalid statutory scheme which the Texas Legislature has changed since 2010 when TWDB and LSGCD first adopted those regulations;
  • Adoption of the 2010 Desired Future Conditions would violate LSGCD’s settlement agreement with the City of Conroe and others in earlier litigation;
  • Adoption of the 2010 Desire Future Conditions would violate the Final Judgment of Senior District Judge Lamar McCorkle who invalidated those regulations in his 2018 ruling against LSGCD prior to the November 6, 2018, General Election, which brought the pro-property-rights Board into office.

Without question, the Board made the correct decision to proceed with an administrative appeal of TWDB’s ruling. The Board should have made that decision during full and open deliberation, however.

The Board has heeded Sequeira’s admonishment “to communicate to the public” in part. They’re moving back towards openness and transparency. Clearly, the entire Board and its General Counsel aren’t quite comfortable with the policies of the Texas Open Meetings Act and the Texas Public Information Act yet.

 

 

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