Austin American-Statesman

Hays County water fight back on

Firm may be allowed to pump 2.5M gallons a day from aquifer.

- By Sean Collins Walsh scwalsh@statesman.com

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.

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 ?? RICARDO B. BRAZZIELL / AMERICAN-STATESMAN 2015 ?? State Rep. Jason Isaac (center) wrote a 2015 law that brought the wells into a groundwate­r district’s jurisdicti­on.
RICARDO B. BRAZZIELL / AMERICAN-STATESMAN 2015 State Rep. Jason Isaac (center) wrote a 2015 law that brought the wells into a groundwate­r district’s jurisdicti­on.

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