Friday, January 30, 2015

Friday Night Football Returns to Water Politics


  • Texas Governor Rick Perry ceremonially signed House Bill 4, which lays the foundation for Texas' future water needs. He is joined by Lt. Gov. David Dewhurst, Speaker Joe Straus, Rep. Allan Ritter, R-Nederland and Sen. Troy Fraser, R-Horseshoe Bay on May 28, 2013
    In the midst of the worst drought in recent memory, Texas lawmakers two years ago sent the state a message: The need for water can transcend politics.
    A coalition of lawmakers from both parties and nearly every corner of the state came together to create a new fund that would help jumpstart water projects like pipelines and treatment plants. A few months later, voters overwhelmingly approved taking $2 billion from the state surplus to get the fund going.
    But such a political confluence is rare and not likely to recur soon, many lawmakers and experts say. And as the Legislature takes up more contentious water issues in 2015, including a patchwork system for managing groundwater, water politics may revert back to something more akin to Friday night football. 
    At least, that's how state Rep. Lyle Larson likes to describe water politics in Texas — thirsty towns in fierce fights over the same water supplies. The divides are often between urban, rural and suburban areas; rainy East Texas and the drier West; or population centers sharing rivers that cross nearly the entire state, like theColorado or Brazos
    "A number of groups have already pulled their swords out, and they’re drawing lines in the sand," said Larson, one of the loudest House members on water issues. "And this is typical of what we’ve seen for the past few decades.” As a San Antonio Republican and former city councilman, Larson himself is an example of locally driven water politics. The exploding city has long sought to buy groundwater from underneath nearby rural communities, but was rebuffed and onlyrecently found a source almost 150 miles away. Larson said cities aren't able to get the water they need because dozens of local districts regulate groundwater differently across Texas, and that the state should have more authority over them. 
    Doug Miller, a Republican state representative from New Braunfels — less than an hour north of San Antonio — has a different view. Also a vocal House member on water policy, Miller called the need for more state authority over groundwater "a subject for debate." 
    Miller's constituents include some rural areas that compete with San Antonio for water from the dwindling Edwards Aquifer, and others who fear thirsty cities are after their groundwater. He said it's important "not [to] destroy the economy of rural areas." 
    The political dynamic got more interesting when Lt. Gov. Dan Patrick shook up the Senate committees and created an Agriculture, Water and Rural Affairs Committee, chaired by freshman Republican Charles Perry of Lubbock. Previously, water had been under the Senate Natural Resources Committee, which Patrick has now put in charge of economic development. Troy Fraser, R-Horseshoe Bay, who chairs that committee, said he expects Perry's committee to take over most groundwater regulation issues. 
    Such a change is "huge," said Greg Ellis, a lawyer who represents local groundwater regulators across the state. "This move is potentially bad for or negative for cities, water marketers and other people that want to move water from rural Texas into the cities," he said. Perry declined to comment for this story.  
    It's not yet clear who the drivers of water policy will be in the House, since the former chairman of the House Committee on Natural Resources, Allan Ritter of Nederland, has retired. The Republican was well respected for his relative neutrality when it came to local water battles — perhaps easier for Ritter because his district is in rainy and swampy East Texas, which isn't scrambling for new water supplies. 
    "Allan did a good job in that respect," said Larson, who — along with Miller — has been vocal in his desire to take over as chairman. Larson added that if the next chairman is "somebody from the rural areas, they might not be as responsive to where we're seeing the compression on [water needs] in the urban areas." 
    But state Rep. Drew Darby, a Republican from San Angelo, said his West Texas, mainly rural constituents need water just as much as the big cities. Urban representatives may outnumber the rural ones in the Legislature, he said, but “they don’t grow cotton at Men’s Warehouse in San Antonio. They don’t feed beef at the H-E-B in San Antonio. ... The food, the fiber, the natural resources are produced in rural Texas." They need water to do that, Darby said.  
    There may be a few things that lawmakers come to a consensus on. The Texas Water Conservation Association, one of the largest trade associations of water interests in the state, is making it a priority to speed up applications for surface water projects and encourage underground water storage technologies. Both issues are important for developing big new water supplies for large numbers of people.
    But the group — which includes cities, groundwater regulators and others — could not agree on legislation on brackish groundwater desalination, which lawmakers statewide have touted as a major solution to Texas’ water crisis. Urban interests want to make it easier to pump groundwater if it's brackish, and want the ability to appeal to the state if local regulators get in the way. But rural interests see that as a threat to local control over water. 
    Andy Sansom, executive director of the Meadows Center for Water and the Environment at Texas State University, doesn't expect any of the major water policy issues — namely, groundwater regulation — to be solved without "a catastrophe or federal litigation." 
    And during this legislative session in particular, many will be tired of dealing with water, Sansom predicted. "There are people who'll say, 'Well, shit, we threw $2 billion at this. What do you want?'" 

    Thursday, January 29, 2015

    Battle Brewing In Hays County Over Commercial Water Wells

    Updated: Tuesday, January 27 2015, 09:32 PM CST 

    Residents in western Hays County communities like the Rolling Oaks Subdivision are fighting to save a precious resource. 

    "This is where it all comes from," Rolling Oaks resident Terry Raines said as he pointed to a water well on his property. 

    Raines' way of life there depends on his access to water. 

    "This well is 360 feet deep," he explained. "It was drilled in 1970 and has always been a good source of water." 

    But that could change. 

    A Houston based company Electro Purification plans to pump five millions gallons of groundwater a day from the Trinity Aquifer and sell it to growing communities like Buda and Kyle. 

    The pumping could cause residential wells in western Hays County to run dry. 

    "I'm not the least bit opposed to growth in our county. 

    With that being said I do think county growth needs to be responsible," resident Susan Tosher said. 

    Tuesday, county homeowners took their concerns to the Hays County Commissioners Court meeting. 

    "Apparently Electro Purification does not care about the people in this area who may be damaged by their pumping," resident Jim McMeans said. 

    The Commissioners Court decided to call a special meeting inviting stake holders on this issue. 

    They are hoping to develop a plan of action. 

    "I have concerns about that amount of water leaving a very sensitive aquifer," Will Conley, Hays County Commissioner, Precinct 3, said. 

    Commissioner Conley represents western Hays County residents. 

    He hopes to take their concerns to state lawmakers to regulate commercial use of local groundwater resources. 

    If nothing is done this legislative session, residents fear what could happen. 

    "There's always been water in there ever since we've been out here and there always will if Electro doesn't pump us dry," Raines said. 

    Texas Representative Jason Isaac will host a town hall meeting regarding the water issue on February 10 at 6:30 p.m. in the Wimberley Community Center. 



    text size Battle Brewing In Hays County Over Commercial Water Wells Updated: Tuesday, January 27 2015, 09:32 PM CST Residents in western Hays County communities like the Rolling Oaks Subdivision are fighting to save a precious resource. "This is where it all comes from," Rolling Oaks resident Terry Raines said as he pointed to a water well on his property. Raines' way of life there depends on his access to water. "This well is 360 feet deep," he explained. "It was drilled in 1970 and has always been a good source of water." But that could change. A Houston based company Electro Purification plans to pump five millions gallons of groundwater a day from the Trinity Aquifer and sell it to growing communities like Buda and Kyle. The pumping could cause residential wells in western Hays County to run dry. "I'm not the least bit opposed to growth in our county. With that being said I do think county growth needs to be responsible," resident Susan Tosher said. Tuesday, county homeowners took their concerns to the Hays County Commissioners Court meeting. "Apparently Electro Purification does not care about the people in this area who may be damaged by their pumping," resident Jim McMeans said. The Commissioners Court decided to call a special meeting inviting stake holders on this issue. They are hoping to develop a plan of action. "I have concerns about that amount of water leaving a very sensitive aquifer," Will Conley, Hays County Commissioner, Precinct 3, said. Commissioner Conley represents western Hays County residents. He hopes to take their concerns to state lawmakers to regulate commercial use of local groundwater resources. If nothing is done this legislative session, residents fear what could happen. "There's always been water in there ever since we've been out here and there always will if Electro doesn't pump us dry," Raines said. Texas Representative Jason Isaac will host a town hall meeting regarding the water issue on February 10 at 6:30 p.m. in the Wimberley Community Center. By Nadia Galindo

    Read More at: http://www.keyetv.com/news/features/top-stories/stories/battle-brewing-hays-county-over-commercial-water-wells-23769.shtml

    Wednesday, January 28, 2015

    Neighbor to Neighbor News - Hill Country Groundwater War

    January 27, 2015
    A Groundwater War is Escalating
    Every rancher, landowner, well-user…any Texan for that matter, needs to understand some basic flaws in Texas water policy as illustrated in this story unfolding in Hays County.

    Starting with a fresh blog post by Vanessa Puig-Williams, we’ve assembled some articles, resources and upcoming meeting information to help generate awareness and encourage public participation.

    According to a KVUE news post last night, State Representative Jason Isaac will be hosting a Town Hall meeting to discuss this gap in Trinity Groundwater Management at 6:30 p.m. on Feb. 10 at the Wimberley Community Center. Read more from KVUE.





    “Rule of Capture Undermines Groundwater Regulation in Texas”


    “In mid-western Hays County, a groundwater war is escalating.  A private water supplier, with goals to pipe and sell close to 6,000 acre feet of water per year has strategically located a well field in an area of the Hill Country where the Trinity Aquifer is unregulated. Unlike the more recent groundwater controversies involving decisions by groundwater districts east of Austin to permit or limit the amount of groundwater being transported to the west, the situation in Hays County is different, as it has exposed an innate flaw of the rule of capture, one that is magnified in our modern era of groundwater regulation - the doctrine’s inability to protect a natural resource and the landowners who reasonably depend on it.

    The contentious well field is situated outside the jurisdiction of the Hays-Trinity Groundwater Conservation District and the Barton Springs/Edwards Aquifer Conservation District but within the boundaries of the Edwards Aquifer Authority (EAA). (See recent Austin American Statesman article here). The geology of the area has allowed the company to drill test wells through a thin portion of the Edwards Aquifer formation and pump water from the Trinity, where EAA authority does not extend and where no groundwater regulations apply. Locals and nearby groundwater conservation districts are referring to the Trinity beneath the Edwards Aquifer as an unprotected “white zone,” and many are concerned that the water is ripe for the taking by water suppliers looking to sell water to support growing central Texas.

    Without a groundwater conservation district to issue permits and enforce pumping restrictions, under the rule of capture, this water supplier can pump an unlimited amount of groundwater from the Trinity without liability, even if doing so causes the wells of neighboring landowners to run dry. And according to hydrogeologists, this is a real possibility. The fact that a corporate water supplier is using the rule of capture to its financial advantage has infuriated many locals, but courts have long approved of this practice.”  Read the rest of the story.

    Vanessa Puig-Williams, January 26, 2015 blog post from the Energy Center at the University of Texas School of Law.




    Over 300 people and numerous elected officials attended a standing room only groundwater conservation district meeting January 21st at the Wimberley Community Center. Community awareness is building.
    A new website has been launched as to keep you informed on meetings and events related to Electro Purification and their water grab in Hays County and how you can get involved:
    The Hays Caldwell Public Utility Agency (HCPUA) has this issue on their agenda, Wednesday, January 28th at 3:00 pm at the San Marcos Activity Center.

    The Barton Springs Edwards Aquifer Conservation District (BSEACD) will discuss and possibly take action related the EP well field including options for possible annexation, Thursday, January 29th at 6:00pm. 1124 Regal Row in South Austin

    Find a complete listing of recent and upcoming public meetings worth attending here.
    The Hays County Commissioner’s Court will be forming committee to hold public forums to discuss concerns over groundwater pumping, particularly in areas where conservation districts have no authority, “in the interest of protecting private land rights while promoting public responsibility.” Read more from Hays County.
    The Citizen’s Alliance for Responsible Development (CARD) issued an excellent community alert last week that includes additional background information as well as contact information for area elected officials: http://hayscard.org/cardtalk15-citizenalert1.html.  Letting your voice be heard by those who represent you matters.
    Hays County Commissioner, Will Conley stated in a recent letter to the community: “I, along with many of my colleagues, have discussed this issue with the groundwater districts in Hays County. We have asked that they get together and see if they can develop some reasonable legislation that might cover this gap in groundwater regulatory authority in our community. To my knowledge the groundwater districts are working together and will try to deliver something to Representative Isaac in the near future. This is a complicated issue that will warrant a tremendous amount of discussion. However I am optimistic that our groundwater districts, working with Representative Isaac can come up with a good solution. The rule of capture should not be the only rule that applies to a corporate entity with the intentions of commercial distribution of water resources. I believe there must be some accountability on this whole process beyond free market principles that will protect the private property rights of land owners in an impacted area.” Read the full media release issued by Commissioner Conley’s office here.



    To put some of this into perspective, the production being proposed is 5.3 million gallons per day (mgd). Whereas the entire Barton Springs Edwards Aquifer District’s maximum allowable pump limit is 1.5mgd and the entire Hays-Trinity Groundwater Conservation District’s maximum is 8.13mgd.
    5.3 million gallons per day exceeds that being withdrawn from the aquifer for the entire county area. This massive rate could cause water levels to be lowered in hundreds of nearby wells, thus creating the need for pumps in the wells to be lowered or the need for many wells to be drilled deeper.

    In 1985 Texas began a process to determine where critical groundwater shortages were anticipated and to designate Priority Groundwater Management Areas (PGMAs) as areas where Groundwater Conservation Districts (GCDs) were necessary. In 1990 the Texas Commission on Environmental Quality (TCEQ) designated the Hill Country Priority Groundwater Management Area. It includes all or part of nine Hill Country counties and these wells are just barely beyond the eastern boundary of the PGMA in Hays County. Groundwater Districts have never been formed in Western Comal County or Western Travis County.



    Electro Purification’s test wells are 900-950 feet deep into the Middle Trinity Aquifer’s Cow Creek and lower Glenn Rose formations on Bridges Ranch. Electro Purification has characterized their well field as isolated from surrounding wells; however, the BSEACD has hundreds of well records in the same formation less than 5 miles away.

    The well field lies near the intersection of FM 150 and FM 3237 just west of the Barton Springs Edwards Aquifer Conservation District (BSAECD) and just east of the Hays Trinity Groundwater Conservation District (HTGCD) near Mountain City and Wimberley. As stated above, although this area is under the jurisdiction of the The Edwards Aquifer Authority (EAA), they have no regulatory authority over the Trinity Aquifer beneath the Edwards.

    Image courtesy of BSEACD

    Pumping production from a total of 15-20 planed wells is expected to peak at 5.3-mgd in 18-24 months. At 1/5th of the proposed production levels, the estimated drawdown of that heavily utilized portion of the Trinity Aquifer is 93’/year.
    Area landowners are justifiably concerned and pointing to hydro-geologic evidence that wells will dry-up if pumping proceeds.
    Electro Purification plans on pumping to fulfill contracts to the following entities located to on the eastern edge of the Hill Country along the I-35 corridor.
    - 1mgd (contract signed) to the Anthem subdivision planned by Clark Wilson Homes  located outside of Mountain City
     
    - 1.3mgd (council approved the completion of a contract with mitigation stipulations to be written in) to the City of Buda
     
    - 3mgd (contract signed in 2013) to the Goforth Water Special Utility District.



    “It's by far the biggest commercial pumping project in the area, but it won't be subject to any regulation because the well fields are in a regulatory "no-man's land," as some lawyers like to call it.” Neena Sataja, Texas Tribune. From her recent article “Groundwater Wars Brewing in Austin’s Suburbs” this quotes says a lot:
    "That just really seems like it goes beyond the good will intention of the law," said state Rep. Jason Isaac, R-Dripping Springs, who represents Hays County. "To find this area that’s just right outside of a district, that really concerns me."

    Thank goodness this is concerning our elected officials and that they are thinking about the things like the “good will intention of the law.”



    Read more and share with your neighbors:
    Electro Purification in the Press:

    Groundwater Wars Brewing In Austin's Suburbs
    Texas Tribune, Jan. 23, 2015 by Neena Satija


    Buda Makes Waves With Water Contract
    Hays Free Press, Wed, 01/21/2015 - 12:37pm , By Andy Sevilla


    Buda Agreement With Electro Purification
    City of Buda news dispatch, Jan 21, 2015


    Firm’s Plan To Pump, Sell Water Raises Alarm In Northern Hays County
    Austin American Statesman, 9:44 p.m. Tuesday, Jan. 20, 2015 By Sean Collins Walsh


    Where Will The Water Come From?
    Dripping Springs News-Dispach Fri, 01/16/2015 - 10:00am by Ashley Sava


    MUD For Water: Aquifer Pumping Increases With Growth, Development
    Hays Free Press, Wed, 12/17/2014 - 12:36pm, By Andy Sevilla


    Water Fight Ends in Rancher’s Favor
    Houston Chronicle, By Matthew Tresaugue, January 23, 2014

    Saving Family Lands Seminars March 2015

    Saving Family Lands 2015

    San Antonio March 25, Pearl Studio, Suite 115

    Fort Worth, TX March 26, Ft. Worth Convention Center, Room 201


    Designed for landowners and their advisors, Saving Family Lands will focus on how to individually tailor the voluntary conservation easement to meet a family’s goals, and thus pass cherished lands down to future generations. Led by national conservation easement expert, attorney and author of the IRS conservation easement code, Stephen J. Small, the half-day seminar will include presentations on the tax benefits of donated conservation easements, appraisals, oil and gas development and land trusts.


    Agenda

    12:30 – 1:00 Registration
    1:00-1:15 Introductions,
    Blair Fitzsimons Chief Executive Officer, Texas Agricultural Land Trust
    1:15-2:00 Tax benefits of Conservation easements
    Stephen J. Small, Law Office of Stephen J. Small Esq., P.C.
    2:00-2:15 Break
    2:15-3:00 Pitfalls / Common mistakes
    Steve Small
    3:00-3:45 Appraisal rules
    James J. Jeffries, MAI, ARA, Jeffries Appraisal Services
    3:45-4:00 Break
    4:00-5:15 Oil and gas production on conserved land
    Steve Small & Joseph B.C. Fitzsimons, Partner, Uhl, Fitzsimons Jewett & Burton PLLC
    5:15-5:45 Q&A for the Panel
    5:45 Adjourn

    Fee: $75 before February 28, 2015, $100 after.
    To Register: Please click the location of the Saving Family Lands event you wish to attend:
    San Antonio March 25, 2015
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    Rule of Capture Undermines Groundwater Regulation in Texas

    In mid-western Hays County, a groundwater war is escalating. A private water supplier, with goals to pipe and sell close to 6,000 acre feet of water per year has strategically located a well field in an area of the Hill Country where the Trinity Aquifer is unregulated. Unlike the more recent groundwater controversies involving decisions by groundwater districts east of Austin to permit or limit the amount of groundwater being transported to the west, the situation in Hays County is different, as it has exposed an innate flaw of the rule of capture, one that is magnified in our modern era of groundwater regulation – the doctrine’s inability to protect a natural resource and the landowners who reasonably depend on it.

    The contentious well field is situated outside the jurisdiction of the Hays-Trinity Groundwater Conservation District and the Barton Springs/Edwards Aquifer Conservation District but within the boundaries of the Edwards Aquifer Authority (EAA). (See recent Austin American Statesman article here). The geology of the area has allowed the company to drill test wells through a thin portion of the Edwards Aquifer formation and pump water from the Trinity, where EAA authority does not extend and where no groundwater regulations apply. Locals and nearby groundwater conservation districts are referring to the Trinity beneath the Edwards Aquifer as an unprotected “white zone,” and many are concerned that the water is ripe for the taking by water suppliers looking to sell water to support growing central Texas.

    Without a groundwater conservation district to issue permits and enforce pumping restrictions, under the rule of capture, this water supplier can pump an unlimited amount of groundwater from the Trinity without liability, even if doing so causes the wells of neighboring landowners to run dry. And according to hydrogeologists, this is a real possibility. The fact that a corporate water supplier is using the rule of capture to its financial advantage has infuriated many locals, but courts have long approved of this practice.

    In the 1904 landmark case of Houston Texas Central Railroad Company v. W.A. East, the Texas Supreme Court adopted the rule of capture in Texas.[i] In East, the Houston and Texas Central Railroad Company dug a groundwater well on property it owned in Denison, Texas to supply water for its locomotives and machines shops. The well produced about 25,000 gallons per day, ultimately causing the plaintiff’s domestic well, which was dug prior to the railroad company’s well, to run dry.
    A major point of discussion for the Court was the fact that the railroad was using the groundwater for manufacturing purposes rather than for domestic purposes. The opinion discusses and relies on several cases where other courts maintained that a defendant landowner can pump groundwater to sell to a town or to use in manufacturing, mining, or brewing “whatever may be its effect upon his neighbor’s wells and springs.”[ii] One of these opinions from 1859 in England, Chasemore v. Richards, concerned a defendant landowner who used percolating water from his property to supply to a town, consequently reducing water in a neighbor’s stream to the point where he could no longer operate his mill. In East, the Texas Supreme Court noted that Lord Wensleydale, one of the Justices in Chasemore “expressed doubt as to the correctness of the conclusion reached” even though he “admitted to the soundness of the rule of capture.”[iii] According to the Texas Supreme Court, “[h]is doubt arose out of the fact that the defendant was not using water for his own purposes but was selling it to others.”[iv]

    In 1999, the Texas Supreme Court upheld the rule of capture in Sipriano v. Great Spring Waters of America (Ozarka)[v]when asked to decide whether the bottled water company could be held liable for pumping 90,000 gallons of groundwater a day from its property, resulting in neighboring landowners’ wells going dry.

    While the Texas Supreme Court recognized that the rule of capture is “harsh” and “outmoded” and has been “severely criticized,” it was unwilling to change the law, instead, punting the decision of whether to abandon the rule of capture to the Texas Legislature.[vi] The Court’s decision in Sipriano rested primarily on the 1917 Amendment to the Texas Constitution, which placed the duty to protect the State’s natural resources in the hands of the Legislature and on the Legislature’s efforts at that time to regulate groundwater in Senate Bill 1.[vii]

    Since the Sipriano decision in 1999, the Legislature has made considerable progress in regulating groundwater across Texas. The Legislature has approved the establishment of close to 100 groundwater conservation districts.[viii] Moreover, under Chapter 36 of the Water Code, the Legislature has created a process where groundwater districts with jurisdiction over the same aquifers work together in a groundwater management area (GMA) to establish desired future conditions for these aquifers. Desired future conditions or DFC’s are “the desired, quantified conditions of groundwater resources (such as water levels, water quality, spring flows, or saturated thickness) at a specified time or times in the future…”[ix] Under Chapter 36, a GMA submits the DFC for an aquifer to the Texas Water Development Board who uses it to determine the modeled available groundwater (MAG) for the aquifer. Groundwater conservation districts use the MAG in their permitting decisions, as Chapter 36 requires groundwater districts to manage groundwater in a way that achieves the adopted DFC.[x]

    Under the nose of the Edwards Aquifer Authority, however, on an unregulated well field in Hays County, the rule of capture is undermining this regulatory framework. For the portion of the Trinity Aquifer governed by GMA 9 and the Hays-Trinity Groundwater Conservation District, the annual amount of water the water supplier intends to pump (5,600 acre feet) is over half of the MAG (9,100 acre feet per year) that the Texas Water Development Board determined is available to permit for the district to achieve its DFC. Even more alarming, for the portion of the Trinity Aquifer that falls under the jurisdiction of GMA 10 and the Barton Springs/Edwards Aquifer Conservation District (BSEACD), the Texas Water Development Board determined that the MAG is 1,288 acre feet a year. The water supplier has plans to pump 4,300 acre feet more than the MAG. BSEACD is concerned that this excessive withdrawal of groundwater will interfere with the groundwater district’s ability to achieve the DFC for the Trinity Aquifer.

    As Justice Hecht wrote in his concurring opinion in Sipriano, “what really hampers groundwater management is the established alternative, the common law rule of capture…It is hard to see how maintaining the rule of capture can be justified as deference to the Legislature’s constitutional province when the rule is contrary to the local regulation that is the legislature’s preferred method of groundwater management.”[xi]

    The Legislature constructed Texas’ groundwater regulations to ensure that groundwater, a natural resource, is conserved, preserved, and protected.[xii] But the rule of capture is contrary to these purposes, especially when it protects the interests of corporate entities wishing to export groundwater rather than the property rights of local landowners.

    In this era of drought and widespread regulation of groundwater in Texas, the doubt expressed long ago by Lord Wensleydale over the rule of capture’s protection of water marketers is even more relevant today. In response to the situation in Hays County, a Hays County Commissioner recently wrote that “[t]he rule of capture should not be the only rule that applies to a corporate entity with the intentions of commercial distribution of water resources.”

    In the short term, locals are considering annexing the unregulated parts of the Trinity Aquifer into the jurisdiction of the Hays-Trinity Groundwater Conservation District and lobbying the Legislature for additional funding for the district to be able to effectively regulate. But in the long term, perhaps the Legislature should examine whether it is time to dispense with the rule of capture in favor of a liability doctrine that protects the natural resource, the property rights of all landowners, and supports the regulatory framework the Legislature enacted rather than undermining it.

    Go to Original Post

    Footnotes
    [i]Houston Texas Central Railroad Company v. W.A. East, 98 Tex. 146, 81 S.W. 279 (1904).
    [ii] East, 98 Tex 146 at 150.
    [iii] Id.
    [iv] Id.
    [v] Sipriano v. Great Spring Waters of Am., Inc., 1 S.W.3d 75 (Tex. 1999)
    [vi] Sipriano, 1. S.W.3d 75 at 78 (discussing Friendswood Development Co. v. Smith–Southwest Industries, Inc. 576 S.W.2d 21 (1978)).
    [vii] Id. at 79.
    [viii]See http://www.twdb.state.tx.us/mapping/doc/maps/GCDs_8x11.pdf
    [ix] See Tex. Water Code §36.108.
    [x] Tex. Water Code §36.1071(a).
    [xi]Sipriano 1.S.W.3d 75 at 81, 83. (Hecht, J., concurring).
    [xii] Tex. Water Code §36.0015

    Monday, January 26, 2015

    THE TEXAS TRIBUNE: roundwater Wars Brewing in Austin's Suburbs: by Neena Satija Jan. 23, 2015



    WIMBERLEY — In a classic example of the gaps in Texas' patchwork approach to regulating groundwater, an unprecedented amount of water may soon be pumped from underneath already parched Hays County with virtually no oversight.

    Houston-based Electro Purification hopes to eventually pump 5 million gallons of water daily from the Trinity Aquifer, and sell it to some of Austin's fastest-growing Hill Country suburbs, including the town of Buda and a new subdivision planned near Kyle.

    It's by far the biggest commercial pumping project in the area, but it won't be subject to any regulation because the well fields are in a regulatory "no-man's land," as some lawyers like to call it.


    Electro Purification's wells (the yellow dots on the map)
     are outside any regulator's purview. They're also near many other 
    wells that depend on the Trinity Aquifer (the blue and green dots).  

    Graphic by: Barton Springs/Edwards Aquifer Conservation District. 
    About 100 groundwater conservation districts across Texas limit how much water users can pump from aquifers in an effort to protect the resource. 

    But Electro Purification's well fields are in an area where no district governs the Trinity Aquifer. The wells are located in the Edwards Aquifer Authority's jurisdiction — but the authority doesn't oversee the Trinity, which is a groundwater formation that lies under the Edwards in Hays County.

    Since it's not operating within a groundwater conservation district, Electro Purification is subject only to the century-plus-old "rule of capture" — which basically allows it to pump as much water as it wants with no liability on how that affects neighbors. The company only needed to lease the land for its well fields, secure water rights from the landowners, and get a permit to drill through the Edwards Aquifer to the underlying Trinity. It is is not required to report its pumping activities to any authority.

    "That just really seems like it goes beyond the good will intention of the law," said state Rep. Jason Isaac, R-Dripping Springs, who represents Hays County. "To find this area that’s just right outside of a district, that really concerns me."

    Electro Purification did not respond to requests for comment, but the company has disputed that its pumping will affect anyone, and Buda has promised that a mitigation plan will be in place for anyone impacted. But local residents and hydrologists are deeply worried. Shallow residential wells — which provide water for most people in this exploding suburban county outside Austin — have already gone dry during the ongoing drought, and they fear a huge amount of pumping in a focused area will only make things worse.

    "My district and others, and you all, I gather, are concerned," Brian Hunt said at a packed meeting of over 200 people at the Wimberley Community Center on Wednesday night, just a few miles from the well fields. "This is a real conundrum for us."
    Hunt is a hydrologist for the Barton Springs/Edwards Aquifer Conservation District, which manages the Trinity and Edwards aquifers in some parts of Hays and Travis County. And he was speaking at a meeting of the Hays-Trinity Groundwater Conservation District, which governs the Trinity Aquifer in western Hays County. Electro Purification's well fields are located just outside both districts' boundaries.

    Hunt said such a huge amount of groundwater withdrawal in one area could cause the water table in hundreds of nearby residential wells to drop more than 50 feet in just one year. That would force people to spend tens of thousands of dollars lowering their pumps. Some nearby residents have designed bumper stickers that read, "Buda sucks us dry."
    "I don't have money to dig a deeper well," pleaded Janice Rogers, one of several Hays County residents who spoke at the meeting. "All I have is the little house I live in." She added that she doesn't have the money to install a rainwater collection system, either, which many of her neighbors have done to bypass issues with groundwater availability.

    Hydrologists across Central Texas are still collecting data on what effects Electro Purification's pumping might have. But Hunt and Raymond Slade, an Austin-based hydrologist who is retired from the U.S. Geological Survey, said the Trinity Aquifer can sustain far less pumping than other aquifers, like the Edwards.

    "The holes are much smaller" in the rocks where Trinity water moves through, Slade said. "They don’t have caves." If someone pumps a lot of water from the Trinity, "a lot of [new] water can't move in quickly to fill in gaps." That affects nearby pumpers, who have to look farther underground for water.

    The project has businesses and schools worried, too. Many attending the meeting said they'd heard about it because St. Stephen's Episcopal School in Wimberley, which relies on water from the Trinity, had sent a note to students.

    But there's little anyone can do to stop Electro Purification.

    The Hays-Trinity Groundwater Conservation District could try to annex the unregulated portion of the Trinity, but that's not an easy process and may require the Legislature to act. And even if that is successful, the district is basically broke. It has no taxing authority or even the ability to charge groundwater production fees. Only the Legislature can change that.
    Isaac, the local state representative, said he's not yet sure what is doable. “At this point, I’m trying to study the issues and learn more about it before we decide to change the Texas Constitution and take the rule of capture away from everybody," he said in a phone interview Wednesday. He added that legislators are unlikely to agree to give the Hays-Trinity district taxing authority in this political environment.

    But a local lawmaker could easily give his own constituents' groundwater conservation district the authority to charge more fees, and no one would challenge him, said Greg Ellis, the district's general counsel.

    “It’s almost unheard of in the Senate for an outside senator to interfere with a local bill," Ellis said.

    “It’s almost the same in the House.”

    Isaac said his real priority is addressing the patchwork system of groundwater regulation in Texas, where districts are drawn on county lines — not aquifer lines. That especially affects the huge Trinity Aquifer, which stretches across such a huge portion of the state. Unregulated pumping in the Trinity is also happening in Comal and western Travis County, he noted.

    "We can't monitor that activity. We don't know what's going on, and it's the exact same aquifer," Isaac said. “Clearly, there are some gaps in maintaining and managing the aquifer that we need to address this session."
    Go to Texas Tribune.