Hays County water fight back on
Firm may be allowed to pump 2.5M gallons a day from aquifer.
Three years ago, Hays County’s grass-roots Save Our Wells group took on a Houston-based company that found a regulatory loophole allowing it to pump millions of gallons of water from the already-strained Trinity Aquifer and sell it.
The dispute culminated in a legislative victory that brought a lawmaker to tears and placed Electro Purification’s project under the jurisdiction of a groundwater conservation district, alleviating fears that it would suck water from hundreds of residential wells in the Wimberley Valley.
But now that regulators are considering granting the company’s request to pump up to
2.5 million gallons per day from their well fields, some of the project’s most prominent opponents say their victory feels empty.
“I was expecting to get protection from the groundwater district, and what we’ve got is legalized thievery,” said Jim Blackburn, president of the Trinity-Edwards Springs Protection Association. “In essence, they’re proposing to suck the marrow from the limestone bones of the Hill Country. And when you lose your marrow, you die.”
To be sure, the project’s opponents have won major concessions. The proposed permit being considered by the Barton Springs/Edwards Aquifer Conservation District is for less than half of the 5.3 million gallons per day that Electro Purification had originally contracted to pump. And the permit language, crafted by the conservation district’s staff, has numerous mitigation plans and precautions, including a requirement that the pumping be phased in over time, starting at 500,000 gallons per day, to ensure that neighboring residential wells are not affected by their new industrial neighbor.
But those protections don’t go far enough for Blackburn’s group, which voted Tuesday night to oppose the permit and vowed to sue if it is approved. Despite the proposed restrictions, Blackburn, a Houston-based environmental lawyer who owns a property near the wells, said the most important factor in assessing a permit is the maximum allowable pumping rate. A rate of 2.5 million gallons per day could result in a 300-foot drawdown of wells within a 2-mile radius, according to the district’s projections.
Unusual bedfellows
The 2015 fight over the project highlighted the difficulties faced by the Hill Country and other parts of the state that are fighting to protect diminishing groundwater resources while running up against Texas’ aversion to regulation. It consequently made for some unusual political bedfellows, with rural landowners and tea party-aligned politicians teaming up with environmental lawyers and activists to foil a commercial project backed by government entities such as local water utilities.
State Rep. Jason Isaac, a Dripping Springs Republican who authored the law that brought the wells into the district’s jurisdiction, said he does not believe there would be enough water left for residents if Electro Purification gets its 2.5 million gallons a day. Nonetheless, he said, the permitting process is working as he hoped it would when he pushed for the bill because the phase-in will protect property owners.
“I don’t think the science is going to show that there’s that much groundwater available, and we’re so fortunate that we were able to get that bill passed,” said Isaac, who will leave office in January and called the groundwater bill his most important accomplishment. “It has got to go through a district, and before, they didn’t have to go through a district and they didn’t have to abide by science.”
Tim Throckmorton, a founder and manager of Electro Purification, said that while the district is taking a conservative approach to the permit application, he is confident testing will show there is ample groundwater to support the project.
“They’ve been very professional, very conservative, and we’ve adhered to all their practices, everything that we needed to do, all of their guidelines,” Throckmorton said.
Loophole closed
In 1904, the Texas Supreme Court ruled that property owners have the right to pump as much water from beneath their land as they want, establishing the “rule of capture.” Forty-five years later, the Legislature began creating groundwater conservation districts, which can limit pumping that would negatively impact the water supply and are one of the few limits on the rule of capture.
Looking at a surface map of Hays County, which includes areas covered by three districts, it appears that no patch is left unregulated. But aquifers are layered, and Electro Purification was able to find a subterranean pocket that lacked oversight by drilling down into the Trinity Aquifer from properties that are, on the surface, in the jurisdiction of a district that only regulates the Edwards Aquifer.
The project quickly attracted three customers — the city of Buda, the Anthem subdivision and the Goforth Special Utility District, which serves the fast-growing Niederwald area — and hundreds of opponents in the Wimberley Valley who contended that industrial-scale pumping would threaten their residential wells. There is no municipal water service in that part of the county, and there are about 1,500 properties in the potential impact zone, according to the conservation district.
Isaac’s bill, passed in dramatic fashion during the closing days of the 2015 Legislature, closed the loophole by giving the Barton Springs/ Edwards Aquifer Conservation District jurisdiction to oversee the Trinity in all parts of Hays County where it is not regulated.
Then things got worse for Electro Purification. Facing accusations that they were stealing water from their Hays County neighbors, Buda and Anthem pulled out of their contracts, leaving only Goforth’s contract for up to 2.5 million gallons per day. The groundwater district’s proposed permit includes a provision that would end the project if Goforth also pulls the plug.
Pumping’s effect
Two weeks ago, the district’s staff recommended that its five-member elected board of directors approve the permit with the phase-in procedure and other restrictions. The final decision, however, won’t take place for months and could take more than a year.
The district will gather comments from the public and interested parties over the summer. Isaac said he will encourage the district to hold a public hearing. And Blackburn’s group may tie the application up in administrative and court proceedings.
Vanessa Escobar, the district’s senior regulatory compliance officer, said the staff report included a finding that the project may have a “potential unreasonable impact” on neighboring wells, a legal standard that allows the district to restrict pumping in some way. The staff reached that conclusion by determining that the full 2.5 million gallons per day pumping rate would probably draw down nearby wells to below the depth of residents’ pumps.
Escobar said the staff believes that the proposed first phase of pumping, at a maximum rate of 500,000 gallons per day, will not produce unreasonable impacts on residential wells. Many wells in the area are unregistered, however, making it more difficult for the district to estimate effects.
The likely impact zone is a 1- to 2-mile radius from the wells, which are near RM 3237’s intersection with Lone Man Mountain Road. For residential well owners who draw from the Lower Glen Rose Formation of the Middle Trinity, the radius extends 1 mile from the project’s site. For those tapping the Cow Creek Formation, the radius is 2 miles.