Firm’s plan to pump, sell water raises alarm in northern Hays County

A new player has plans to sell up to 5.3 million gallons of water per day to utilities in Hays County, where rapidly growing communities are increasingly desperate to secure water.

But the location of Houston-based Electro Purification’s well field, near the intersection of three water districts, has Hays County officials worried that the company will dodge regulatory oversight and hog more than half of the water available from the Trinity Aquifer — an already-depleted aquifer in the northern part of the county.

Groundwater in the area, off of RM 3237 between Wimberley and Kyle, is governed by the Edwards Aquifer Authority. But the wells are being drilled through the Edwards formation to take water from an underlying layer of the Trinity Aquifer, according to plans the company shared with the Buda City Council, a customer.

As a result, officials from the Edwards Aquifer Authority can’t get involved with regulation because it isn’t their water; the Hays Trinity Groundwater Conservation District doesn’t have jurisdiction for regulation because the wells are just outside its territory. It appears the wells will be subject only to Texas’ “rule of capture,” which gives landowners nearly unfettered rights to pump water if they aren’t in a protected groundwater district.

“What they’re really doing is they’re looking at loopholes in Texas law and taking advantage of those,” said Ron Kaiser, a professor of water law and management at Texas A&M University. “They’re operating within existing Texas law so, from an ethical standpoint, they’re in a good position to say, ‘We’re not doing anything wrong.’”

With the Trinity already depleted, residents are worried the additional pumping will impact their private wells, 95 of which are within a two-mile radius. Meanwhile, county and state officials and water regulators are formulating plans that could involve asking the Legislature to let water authorities regulate all of the water in their territories — regardless of the aquifer — or having the Electro Purification well field annexed into a different water district.

Ed McCarthy, a lawyer for the company, told the Hays County commissioners on Tuesday that the company’s operations will not harm other wells in the area.

“We’re not a fly-by-night company. We’re not going to drill wells, start pumping and drain the aquifer and then leave,” McCarthy said. “Electro Purification’s here for the long term.”

Bart Fletcher, a manager at the company, said in an interview that the Wimberley location was not chosen because of its lack of regulatory oversight.

“It’s the closest water to the city that’s available,” Fletcher said. As for the Edwards Aquifer, on which Buda sits, Fletcher said, “The city could do it, but the EAA won’t let you.”

Local water officials are skeptical of that the company’s promise that its operations won’t impact others.

“I’m very, very suspicious of how they’re operating,” said Linda Kaye Rogers, president of the Hays Trinity district board. “They very obviously know where they can drill that they don’t have to answer to anybody.”

The company has contracts to provide 3 million gallons of water per day to the Goforth Special Utility District, which serves the Niederwald area, and 1.3 million to the Anthem Municipal Utility District, a planned subdivision outside Mountain City. The Buda City Council on Tuesday approved a contract for 1 million gallons per day.

If the wells were in the Hays Trinity district, those reservations alone would take up more than half of the aquifer’s groundwater available in northern Hays County, Rogers said. McCarthy said it will take years for Electro Purification’s customers to build up demand for the full capacity of those contracts.

The Wimberley project isn’t the first time the company has sought to profit from a geographical sweet spot in Texas’ water laws.

In 2013, Electro Purification approached the Fort Bend County towns of Richmond and Rosenberg with a plan to bring in water from just outside the borders of a special district meant to protect water stores, according to the Texas Tribune. The water would have come from the same protected aquifer, but it would have been just outside the reach of the Fort Bend Subsidence District.

When the deal fell apart following public outrage over the plan, Tim Throckmorton, the company’s founder and manager, told the Houston Chronicle, “Unless something changes, we’re not going to spend money on Fort Bend County. … We’ll go elsewhere.”

Their options limited, Hays County officials and representatives from the area’s four groundwater regulators met in San Marcos last week and came up with a plan for residents in the area to petition to be annexed into the Hays Trinity district. Rogers, president of the district’s board, said the district doesn’t have enough money to expand its territory and needs to find new ways to collect revenue.

Another possibility is to rewrite the rules on what groundwater districts can regulate, although the new rules would probably only apply to new projects. State Rep. Jason Isaac, R-Dripping Springs, said he is looking into possible legislative solutions but isn’t sure that anything can be done retroactively to stop Electro Purification’s Wimberley wells.

“I really want to make sure there are some protections moving forward for the surrounding homeowners,” Isaac said.

In an open letter last week, Hays County Commissioner Will Conley wrote that the rule of capture is insufficient to handle commercial water producers.

“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,” Conley wrote. “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.”

The Hays County commissioners on Tuesday voted unanimously to invite all the players — Electro Purification, the groundwater districts, cities, subdivisions and state legislators — to work through the issue in public meetings.

Last week, the Barton Springs/Edwards Aquifer Conservation District, which is concerned that overpumping the Trinity could impact parts of the Edwards, formally asked the Buda City Council to delay consideration of the city’s proposed contract with the firm.

After a long line of citizens and officials skeptical of the project spoke out Tuesday night, the council voted 6-1 to approve the contract. The council added a mitigation plan in which Electro Purification would pay for improvements for property owners whose wells are impacted.

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