Electro Purification, LLC (“EP”), a firm specializing in water treatment technology and water supplies, has a major water project in progress to meet the needs of growing communities in Central Texas. Through the project, up to 5.3 MGD of water will be pumped from the Trinity Aquifer and conveyed via pipeline to the Goforth Special Utility District, the proposed Anthem Subdivision in Mountain City’s extraterritorial jurisdiction, and the City of Buda.
The project, however, is not sitting well with the residents of Trinity County and has been notoriously ruckus at times. The Texas Tribune reports that during a public meeting a county commissioner yelled at an EP representative to leave town. “We don’t want you here,” said Hays County Commissioner Will Conley. “We want you to leave.” (“Hays Water Fight Portends Battles to Come,” Texas Tribune, February 11, 2015).
At issue: the project’s well field is located in a white zone—an unregulated area where rule-of-capture is the rule-of-law—and residents fear that such a high volume of pumping will cause dramatic drops in water levels.
In an effort to halt the project, Texas Representative Jason Isaac (R–Dripping Springs) introduced a number of bills aimed at allaying the residents’ concerns.
• HB 3407, as originally written, would have stripped the Goforth Special Utility District of its eminent domain power. A committee substitute would have eased the restriction so that the district could still use eminent domain power for projects that it owns and operates. HB 3407 was reported out of committee but has not been taken up on the House floor. The district is using its eminent domain power to acquire easements along the pipeline route.
• HB 1191 would have established a buffer zone extending five miles from the boundary of a priority groundwater management area. Anyone drilling or operating a well for commercial purposes in the buffer zone would have been required to file for a permit from the Texas Water Development Board and any groundwater conservation district with jurisdiction over the land. HB 1191 was left in committee with no action taken. The EP well-field would have fallen into a buffer zone.
• HB 3406 would have expanded the Hays Trinity Groundwater Conservation District (“HTGCD”) and given the district jurisdiction over wells drawing from any aquifer other than the Edwards Aquifer in the territory shared with the Edwards Aquifer Authority and over any aquifer in its territory that is not shared. HB 3406 was left pending in committee.
• HB 3405, the only bill in this package to have gained traction, is similar to HB 3406, but would grant authority to a different district. HB 3405 would expand the authority of the Barton Springs-Edwards Aquifer Conservation District so that the district would have authority over groundwater and any wells drawing from any aquifer other than the Edwards Aquifer in the territory shared with the Edwards Aquifer Authority and over any aquifer in its territory that is not shared. An amended version of HB 3405 was passed by the Senate on May 22nd. The Senate amendments would include in the district’s jurisdiction any wells to produce water, including wells that are part of an Aquifer Storage and Recovery project, would impose caps on certain production fees and assessments, would allow the district board of directors to increase the number of board members to reflect the added territory, and would limit the provisions of this bill to only the specified territory (meaning it would be the intent of the legislature that there are no statewide implications). HB 3405 has been returned to the House for consideration of the Senate amendments.
Residents are also fighting the water project through the court system. The citizen group Trinity Edwards Springs Protection Association (“TESPA”) has filed a lawsuit asking for an injunction against the EP project. TESPA claims that the well-field is not in a white zone, but is under the jurisdiction of the HTGCD because the legislature gave the district default jurisdiction over any groundwater in the county that is not under the jurisdiction of another groundwater conservation district.
If the district court finds that HTGCD does not have jurisdiction over the wells, then TESPA plans to request that the Texas Supreme Court review and overturn the rule-of-capture, arguing that it is “harsh and archaic.”
The Hays County issue highlights an ongoing dilemma that pits neighbor against neighbor as existing water uses tussle with the water demands of growing communities and the rule-of-capture. While the rule-of-capture is strongly embedded as property right in Texas law and culture, the issue at hand begs the question of whether it is wise to undertake large water projects in unregulated groundwater areas.
Written by Marta L. Weismann