Last Tuesday, the parties and their representatives in the EP contested case met for a SOAH ordered mediation. Although TESPA participated in the mediation in good faith, the parties were unable to reach agreement on any issues pertaining to the draft permit. We cannot say more than that as discussions at mediation are confidential. At this point, we are proceeding to hearing, which is scheduled for September 19th–27th and will continue working on the case.
For background on the Electro Purification case, click here. The Barton Springs Edwards Aquifer Conservation District staff has recommended a draft permit for a total of 2.5 MGD that would allow EP to severely drawdown aquifer levels in the Middle Trinity Aquifer near Wimberley and Driftwood. The District is required by state law to protect property rights. Their way of doing this is to ensure that landowners continue to have access to their groundwater, by requiring EP in certain circumstances to lower pumps in wells to below where the District has established a trigger/curtailment level in the aquifer. The problem with this is that this scenario gives EP the right to all the water above the trigger—and almost all of this water is owned by other people.
Although the District‘s own science clearly states that the EP project will result in a potential for unreasonable impacts on the aquifer and on wells, they have not recommended reducing the permit. Instead, the District is recommending that the permit is issued in phases. If there are negative impacts on the aquifer, then the District’s position is that they can cut EP back. At a public meeting last May, one of the District’s hydrogeologists stated that he believed they would likely have to curtail EP’s pumping by 100% around 1.25–1.5 MGD as pumping this volume of water could begin to dewater the aquifer. Under this scenario, however, EP will likely already have built out their pipeline, and have investment-backed expectations in their project. TESPA is concerned that granting EP the full permit volume will make the District vulnerable to losing a takings lawsuit brought by EP when the District does eventually have to cut them back.
We believe a more prudent approach is to grant EP a permit for a smaller amount of groundwater that will not result in unreasonable impacts, and then require EP to come back to the District and apply for a permit for more if it is certain that negative impacts will not result. Additionally, groundwater districts, including BSEACD, need to begin thinking about how they can manage groundwater in this new environment where they must protect ALL property rights, including the rights of landowners who want to conserve their groundwater. Ensuring that landowners’ have access to their groundwater from a lower formation while allowing a private company to pump all the water above that formation, is not equitable and does not protect the property rights of ALL landowners.
Although TESPA is contesting the District‘s permit recommendation, we want to work with the District to ensure that it has the tools (both science and regulatory) it needs to protect property rights and to protect the aquifer. We cannot allow our local groundwater districts to be bullied by groundwater developers who seek to export water from an area that is already experiencing groundwater declines.
TESPA relies on donations to fund its work. Our expenses associated with contesting this draft permit are increasing rapidly. Please consider making a tax-deductible donation.