Effort to regulate Hays wells proving difficult

When Chad Norris moved into his home in an unincorporated area between Wimberley and Kyle, he found a sign hanging over the well pump that said, “Springs of Water, Bless the Lord,” the name of a baptismal hymn. Although he’s not religious, Norris decided to leave the sign up.

“It’s our sole water source,” Norris said of the well. “It really makes you conserve and think a lot more about that resource and how precious that is.”

Norris and many of his neighbors are worried that a nearby commercial well field being built by Houston-based Electro Purification could threaten their wells. The firm is operating just outside the reach of water regulation authorities and has plans to pump up to 5.3 million gallons of water per day to Hays County communities on the Interstate 35 corridor.

“I’ll probably end up going to rainwater harvesting while they have green grass over in Buda,” Norris said.

Despite a groundswell of outrage from residents like Norris and the support of key local officials, the effort to bring the well field under regulation is proving to be a politically and logistically difficult process.

The two groundwater conservation districts nearest to the well field both support annexing the properties, but pulling the area into either will present a unique set of challenges. The most likely plans of attack require action from the Legislature, where there are no guarantees. Meanwhile, the clock is ticking as Electro Purification moves toward selling its water, at which point its operations will likely be grandfathered into any new regulation, if it isn’t already in that position.

Electro Purification has built seven test wells on two properties off of RM 3237 that are in the territory of the Edwards Aquifer Authority. But the company is drilling through the Edwards formation to draw water from an underlying layer of the Trinity Aquifer. Consequently, the Edwards Aquifer Authority cannot regulate the wells because it is a different source of water, and the Hays Trinity Groundwater Conservation District also lacks jurisdiction because the wells are just outside its territory.

The city of Buda, the proposed Anthem subdivision near Mountain City and the Goforth Special Utility District, which serves the Niederwald area, have contracted to buy water from the company. Although those deals had been in the works for years, the controversy over the project didn’t erupt until last month, when neighbors near the wells began questioning the project.

Legislative action

State Rep. Jason Isaac on Friday filed a bill that would create a five-mile buffer zone around all groundwater conservation districts in which commercial well operators would need approval from the Texas Water Development Board. The Republican from Dripping Springs has also begun the process of posting public notice of his intention to file two bills that would bring the wells into either the Hays Trinity district or the Barton Springs/Edwards Aquifer Conservation District, which is also nearby.

“I am taking several approaches, because I don’t want to put all of my eggs in one basket,” Isaac said. “I’m confident that we’re going to get one of them done.”

State Sen. Donna Campbell, R-New Braunfels, whose district includes the wells, didn’t respond to a request for comment. She was absent from a meeting last week that she was invited to by the Hays County Commissioners Court.

State Sen. Judith Zaffirini, D-Laredo, has pledged to carry Isaac’s bills in the upper chamber if Campbell does not. Her district includes part of the Barton Springs/Edwards district and the utilities buying the water.

Changing the jurisdiction of the Edwards Aquifer Authority to let it regulate Trinity wells isn’t being discussed because the authority’s mission is to ensure water sources are strong enough to protect endangered species in the Edwards-fueled San Marcos and Comal springs. That leaves the nearby Groundwater Conservation Districts — the Hays Trinity and the Barton Springs/Edwards Aquifer — to pick up the slack.

Adding territory

The Texas Water Code provides two ways for a district to add territory. The longer route is for residents in an area outside the district to petition for annexation, get the approval of the district’s board and win a majority vote among affected voters on a ballot question, which wouldn’t be possible until November. The shorter option is for the Legislature to amend the district’s borders, which could be finished by June if Isaac is successful.

Isaac said he would prefer to see the area become part of the Barton Springs/Edwards district because it is in the same state-determined Groundwater Management Area as the wells. Although there is no prohibition on groundwater districts crossing into multiple management areas, and some already do, Isaac said it would be better policy.

John Dupnik, general manager of the district, said his board is open to the possibility of annexation but is hesitant about the cost of adding territory: registering and surveying new wells, redrawing board members’ districts, possibly adding office space and other tasks. Most of the district’s budget comes from the city of Austin and from production fees on Edwards Aquifer wells, which Dupnik said creates an “expectation” that most of its money fund Edwards projects.

Looming over the Barton Springs/Edwards option is a question raised by a former state representative on the jurisdiction of the district. Days before retiring last month, state Rep. Bill Callegari, R-Katy, asked for an attorney general’s opinion on whether the district can regulate water in its territory “other than the Barton Springs segment of the Edwards Aquifer, including the Trinity Aquifer.”

An opinion siding with Callegari could provide the basis for a lawsuit from Electro Purification if the Barton Springs/Edwards district regulates its wells. New Attorney General Ken Paxton has up to five months to make a ruling.

The Hays Trinity district, meanwhile, is also worried about the cost of adding territory because of a funding crisis that was underway before the Electro Purification issue came to light. The district doesn’t have taxing authority or state approval to collect fees from well operators based on how much water they pump, as most groundwater districts do. Instead, the district relies primarily on one-time fees for new permits and on a county-administered fund that is drying up after this year.

The district’s annual budget is about $165,000, compared with the Barton Springs/Edwards’ $1.4 million, about 60 percent of which comes from the city of Austin.

Linda Kaye Rogers, president of the Hays Trinity board, said the district could only take on the new territory if the Legislature provides it with a new revenue stream. Isaac said he opposes allowing the district to tax residents but might be open to letting it charge production fees for commercial pumping.

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