Friday, May 8, 2015

TESPA Discussion of SB 1440

          The TESPA legal team has reviewed SB 1440, and we feel the need to bring a problem with this bill to the attention of our members and friends.  There is a provision that will raise issues in the future if the bill is passed in its current form.  We do not send this out lightly.  Many people have worked very hard on this bill and we appreciate that effort.  However, when we formed TESPA, we promised to tell you the truth as we see it.  And here it is.
SB 1440 places the area where the EP wells are proposed into the Barton Springs/Edwards Aquifer Conservation District. We support this.  However, SB 1440 has one section that gives us great concern.  It is section 8 that allows for temporary permits.  Our basic concern is that this section can be read to create a type of “grandfather” provision for the EP wells.
Under section 8(b), a temporary permit can be obtained by anyone who either has an operating well or a contract before the effective date of the statute.  EP currently has contracts for the sale of water so this section arguably would apply to them.  Section 8(c) then states that the district must issue the temporary permit without a hearing, meaning that EP would be granted a temporary permit. 
However, the most troubling provision to TESPA is section 8(d) which states the following with respect to temporary permits.  (We have marked Section 8(d) in blue, yellow and green to make it easier to follow the discussion below.) 

          (d)  The temporary permit issued under Subsection (c) of this
section does not confer any rights or privileges to the permit
holder other than those set forth in this section. After issuing
the temporary permit, the district shall process the permit
application for notice, hearing, and consideration for issuance of
a regular permit in the same manner that the district processes
other permit applications not described by this section. The
district, after notice and hearing, may issue an order reducing the
amount of groundwater that may be produced under a temporary permit
under this section only if the district determines that the amount
of groundwater being produced under the temporary permit is causing
a failure to achieve applicable adopted desired future conditions
for the aquifer. The district bears the burden of proof in
demonstrating that the amount of groundwater being produced under a
temporary permit is causing a failure to achieve applicable adopted
desired future conditions for the aquifer. A person who relies on
the temporary permit granted by this section to drill, operate, or
engage in other activities associated with a water well assumes the
risk that the district may grant or deny, wholly or partly, the
permit application when the district takes final action after
notice and hearing to issue a regular permit pursuant to the

The above section marked in blue refers to the “regular” permit process in the context of “after issuing the temporary permit”.  This is confusing.  There is no reason to mention regular permits in this section other than to create an argument on behalf of EP that the temporary permit bears a direct relationship to the regular permit. 
 The follow-on section in yellow then refers to the District issuing notice and hearing – but for what permit?  This section can be read as referring to the regular permit after issuance of the temporary permit and not the temporary permit. This is a problem.  It is possible to read this yellow section as limiting the discretion of the District to deny the “regular” permit to only one ground and that is “only if the district determines that the amount of groundwater being produced under the temporary permit is causing a failure to achieve applicable adopted desired future conditions”.  Under this interpretation, no other rules of the district can be considered – only the impact on achievement of desired future conditions.
Under the normally applicable law, a permitting decision would be subject to several considerations pursuant to Water Code 36.113(d), including whether:

(1)  the application conforms to the requirements prescribed by this chapter and is accompanied by the prescribed fees;
(2)  the proposed use of water unreasonably affects existing groundwater and surface water resources or existing permit holders;
(3)  the proposed use of water is dedicated to any beneficial use;
(4)  the proposed use of water is consistent with the district's approved management plan;
(5)  if the well will be located in the Hill Country Priority G   roundwater Management Area, the proposed use of water from the well is wholly or partly to provide water to a pond, lake, or reservoir to enhance the appearance of the landscape;
(6)  the applicant has agreed to avoid waste and achieve water conservation; and
(7)  the applicant has agreed that reasonable diligence will be used to protect groundwater quality and that the applicant will follow well plugging guidelines at the time of well closure.
 As we read the provisions of Section 8(d), the considerations listed above could not be considered, including the effect on adjacent wells such as many of yours.  The only consideration allowed would be for interference with desired future conditions.
The section marked in green worsens the situation by transferring the burden of proof from the applicant to the district to prove that a temporary permit is violating the desired future conditions. This switching of burden of proof furthers supports the concern that this section gives special rights to EP. 
It is clear to us the EP is being given special treatment and special consideration in this bill.  These types of compromises happen in the legislature all the time.  However, TESPA wants its members and friends to know that this has happened to a bill that affects you and your wells.  If this bill is not amended to remove this language, you may well have to live with EP being allowed to exist under statute. 
As you all know, TESPA has sued to have EP wells brought under the jurisdiction of the Hays Trinity Groundwater Conservation District.  We believe that they have jurisdiction under the Act that created the Hays Trinity District.  Our lawsuit is currently on file with the Hays County District Court, and we are just starting to work through our administrative law case.  It is always difficult to know if you are going to win a lawsuit, but we think we have a good case and a good chance. 
At some point, a statute such as SB 1440 that gives too much away may need to be dropped.  We have a viable lawsuit.  We have a viable strategy.  You might pass on to your state representative, state senator and other elected officials that the provisions of Section 8(d) marked in color above need to be removed from this bill or it should not be passed. 

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