by Kiah Collier and Neena Satija Dec. 5, 2015
The Lower Colorado River Authority says a $255 million reservoir it is building in southeast Texas won’t reduce freshwater flows into Matagorda Bay enough to hurt aquatic life, but the organization is refusing to release the hydrological modeling that led to it that conclusion.
The authority — the largest water and power supplier in Central Texas — has told the Matagorda Bay Foundation it can’t have the information and asked state Attorney General Ken Paxton for an opinion shielding the data from the state’s open records laws. If Paxton agrees, the nonprofit foundation says it may sue to get it.
“I’m drawing an inference that there is harm to Matagorda (Bay) from their refusal to provide the modeling,” said Jim Blackburn, the foundation’s president. “I don’t know if it’s true or not, but I certainly think it.”
The LCRA broke ground on the Lane City Reservoir a year ago after its board set a goal of adding 100,000-acre feet to the amount of water the authority can supply. The 40,000-acre-foot lake, being built just off the Colorado River about 60 miles southwest of Houston, is supposed to ease demand on the authority’s other reservoirs, including Lake Travis, Austin’s main water supply. The LCRA has touted it as the first new reservoir to be built in the lower Colorado River basin in decades.
Early last year, the authority conducted hydrological modeling to see how the new reservoir would change the flow of river water downstream into Matagorda Bay — the second largest estuary on the Gulf Coast where oysters, shrimp and fish thrive on the mixture of fresh and saltwater.
The foundation — the sole mission of which is preserving the environmental integrity of the bay — learned about the modeling by accident. In response to a public records request earlier this year, the LCRA gave it a technical memorandum that referred to data showing some reduced flow of river water into the bay but didn’t specify how much or why.
In early October, Jen Powis, the foundation’s lawyer, filed another request specifically seeking the modeling data. Powis says the foundation first asked for the data informally and was shocked when the LCRA said no.
The authority has released similar modeling for other recent projects without being asked, she said. And the hydrological modeling was used to obtain a construction permit from the U.S. Army Corps of Engineers, and by the LCRA board to justify approving the publicly funded project, she noted.
“It’s a ‘trust me’ argument that they’re making — ‘We’ve looked at it, it’s OK’ — which is surprising because the LCRA has historically been very open and transparent,” Powis said. “Lane City is not operative yet. Now’s the time to be looking at these things before it’s too late.”
The LCRA’s construction permit, which Powis obtained earlier this year through an open records request to the Corps, made no mention of the modeling, she said.
Three weeks after Powis submitted her request, the LCRA asked Paxton’s office for an opinion on whether it has to provide the modeling. The authority argued that making the data public would violate attorney-client privilege. It also claimed the information is exempt from disclosure as internal communication regarding policymaking, or a pending — or threatened — lawsuit.
“The responsive information to the request is related to pending or anticipated litigation involving LCRA and its water customers and other interest groups,” the LCRA’s request for opinion states.
A spokeswoman for the LCRA said the authority expects an attorney general opinion in mid- to late December.
“Throughout the planning process and development of the Lane City Reservoir, LCRA continually sought public input and held numerous public meetings with interested stakeholders,” LCRA spokeswoman Clara Tuma said in an emailed statement.
Last week, the Texas Water Development Board closed on $255 million in financing for the planning, design and construction of the lake, with several board members praising it as a “significant” and “impactful” project that props up the state’s water supply.
Asked if the LCRA doesn’t want to release the modeling because it shows the project could harm Matagorda Bay, Tuma said in another emailed statement that the “LCRA currently complies with all applicable environmental flow regulations designed to protect the ecological integrity of Matagorda Bay, and will continue to comply with these regulations upon the completion of the Lane City Reservoir.”
But the foundation has the right to know the details, Powis said. In a letter to the attorney general’s office responding to the LCRA’s request, she contended the authority’s reasoning for withholding the data is “outrageous” and “absurd.” She also cited the ill fate of another Texas bay, the Nueces, saying it is “essentially dead due to a reduction in flow from the Nueces River by state sanctioned activities.”
Two legal experts who reviewed the LCRA’s appeal to the attorney general at the Tribune’s request agree that cited exemptions shouldn’t be applicable to the modeling and that the authority appears to be circumventing the public information act.
“Nobody knows until you can pull the curtain back but it sure looks to me like the Lower Colorado (River) Authority has something to hide,” said Joseph Larsen, a Houston-based media lawyer who also serves on the board of the Freedom of Information Foundation of Texas.
“I don’t see how this is attorney-client privilege in any way shape or form,” he continued.
And the agency can’t withhold public records just because it fears a lawsuit, he said. The threat of a lawsuit over the project has to be imminent and objectively provable, he said.
“No lawsuit has been filed regarding the Lane City Reservoir project,” said Tuma, the LCRA spokeswoman.
The “deliberative process” exception, which exempts from disclosure communications regarding policymaking, also doesn’t apply because the modeling “was put together to provide the authority with the factual basis to make public policy decisions,” Larsen said, describing it as the “most abused” exception to the state’s Public Information Act.
Even if the LCRA has the legal authority to withhold the modeling, it shouldn’t because the public has a right to know the project’s potential impact, said Amy Hardberger, an associate professor of water law at St. Mary’s University School of Law in San Antonio.
“There’s no reason not to expose what your assumptions are,” she said. “I think the notion is you’ll somehow avoid conflict, but in reality all you’re doing is raising suspicions and that never works out well.”
A lawsuit over the modeling may be inevitable, though, Larsen said, as the attorney general often sides with governmental entities trying to withhold information.
If that happens, the bay foundation “absolutely” will consider suing, said Blackburn, who also is a lawyer. But Powis says they shouldn’t have to.
“The whole point of why we wanted the model was to not sue them,” she said.
Disclosure: St. Mary’s University School of Law is a corporate sponsor of The Texas Tribune. The Lower Colorado River Authority was a sponsor in 2013. A complete list of Tribune donors and sponsors can be viewed here.