WIMBERLEY — On a recent weeknight, nearly 200 Hays County residents packed into the Wimberley Community Center for what some described as a celebration.
Six months earlier, three times as many had stormed the place demanding state legislation they hoped would thwart a major water development project that could cannibalize their own supplies.
A bill passed — barely — days before the end of this year’s legislative session, resurrected after a rare about face by the House parliamentarian. Enacted weeks later, state Rep. Jason Isaac’s House Bill 3405 expanded the jurisdiction of the Barton Springs/Edwards Aquifer Conservation District to encompass a previously unregulated Trinity Aquifer well field in western Hays County owned by Houston-based Electro Purification.
In the past year and a half, the company has contracted to provide a Niederwald water utility, a residential developer and the fast-growing — and desperate — city of Buda more than 5 million gallons of water per day within a decade. Once news of the plan spread, a passionate group of activists mobilized and pushed for Isaac’s legislation.
But whether the bill actually will impede the project that inspired its hard-fought conception is far from certain. A variety of factors are at play, including how much the expanded district ultimately will allow the company to pump, and whether the company — or its opponents — will challenge that amount.
Under Isaac’s bill, Electro Purification could technically pump at maximum capacity under a temporary permit the district must grant — regardless of the impact on neighboring wells — until that challenge is resolved. All sides acknowledge such a contested case hearing could take years, potentially creating enough time to complete the project — or another one.
How the case plays out could have big implications for the future water fights sure to pop up across the fast-growing, water-strapped state.
Under Isaac’s bill, the conservation district can deny Electro Purification the amount of water it requests for its final permit if pumping it would have either an “unreasonable impact” on neighboring wells or affect the “desired future conditions” of the aquifer, a benchmark for how much water the formation should hold 50 years in the future.
“What does ‘unreasonable impact’ mean? We don’t know. We’ve got to work through it,” said John Dupnik, the conservation district’s general manager. “Any time you see the term ‘unreasonable,’ that’s where the attorneys really get excited, right? I mean, because that’s kind of a subjective standard.”
How much Electro Purification is allowed to pump indefinitely will depend in part on how the district defines unreasonable impact. The company believes its impact will be largely non-existent, but must definitively prove that through a series of well tests it expects to conduct before the end of the year.
“If the district comes back and says, ‘OK your science proves up, there’s plenty of water,’ which we believe it will — all great. We’ll go. Green light,” said company lawyer, Ed McCarthy, who confirmed the company still is pursuing the project and plans to file an application for a temporary permit before a Sept. 19 deadline. “If they come back and say, ‘Well, you know, you can have three million gallons a day,’ OK, then we have to evaluate whether we can build a 15-mile pipeline and economically transport water at the price we quoted to the customer.”
“I hope it doesn’t happen”
The residents and local officials who rallied against the project are confident “the science” will demonstrate an unreasonable impact — as defined by the district — and the company will get to pump less water than it asks for. They hope that makes the project economically unviable, although they say that even if it does go forward they view Isaac’s bill as a victory because it “leveled the playing field.”
“My personal side is I hope it doesn’t happen, but you have to strike a balance in the community,” said William Conley, a Hays County commissioner who made waves at a raucous February town hall meeting for his pointed verbal assault of Electro Purification’s owner. (At the celebratory town hall last month, Conley said he was “in a much better mood.”)
Before Isaac’s bill became law, the company’s water wells — located on a 1,300-acre lease a few miles northeast of Wimberley — were physically part of the Edwards Aquifer Authority jurisdiction but were unregulated because the authority only oversees wells that tap the Edwards Aquifer, not the Trinity Aquifer.
Driftwood resident Janice Ryals-Rogers, who lives less than a mile from the site in a subdivision considered ground zero for potential impact, is banking on the project at least being smaller scale.
“I don’t think they’ll be able to pump us dry,” she said. “I have concerns but not that I’m not going to have water. I mean, I can’t dream that could ever happen.”
But Ryals-Rogers’ water well doesn’t appear to be in the clear just yet.
“An interesting point”
Under Isaac’s bill, Electro Purification technically could pump as much water as its wells can produce under its temporary permit until the district board takes “final appealable action” on its final, or regular, permit. (The law says the districts “shall issue” those temporary permits, capped at “maximum production capacity.”) That vote wouldn’t come until after a would-be contested case hearing that Dupnik said could take two years or longer. Other experts said it could easily take a half dozen years or more, potentially creating enough time for the company to deliver the water it promised.
That scenario was a concern during the drafting of Isaac’s bill, Dupnik said. But he said he doesn’t see Electro Purification moving forward with the project during a contested case hearing because the company still has so many hoops to jump through to complete it, including building a dozen-mile-plus pipeline and securing another permit from the Texas Commission on Environmental Quality.
(The pipeline-building process is poised to be more contentious than usual with the Goforth Special Utility District, one of the three entities under contract with Electro Purification, planning to make use of its eminent domain authority to secure the needed land even though it wouldn’t own or operate the infrastructure — something Isaac sought to stop in another, unsuccessful bill).
“It’d be a monumental task really to get all that done before this permit proceeding was up,” Dupnik said.
But McCarthy would not rule out the possibility of the company moving forward with the project during a legal challenge, although he cast doubt on the scenario.
“That’s not a legal question; That’s a business question for EP,” he said, confirming that the company will “probably” challenge the permit if the amount is too low. “I don’t think it makes sense because it’s just betting on litigation, but I don’t know the answer to that question.”
Electro Purification did not respond to requests for comment. Even if the company doesn’t launch a challenge, its opponents might, said lawyer Vanessa Puig-Williams, who represents the Trinity Edwards Springs Protection Association. (The non-profit dismissed a previous lawsuit against the company after the passage of Isaac’s bill.)
“If it is necessary to protect adjacent wells, TESPA will oppose EP’s permit by any and all legal means,” Puig-Williams said.
When asked about the possibility of the Electro Purification moving forward with the project while challenging its final permit, Isaac said “It’s certainly an interesting point.”
But the Dripping Springs Republican said he thinks his bill-turned-law “is going to hold up pretty strong in favor of those that may be unreasonably affected.”
“I think they have a much better case and that was really the intent was for existing landowners to be able to sell their assets if they wanted to and doing so without affecting their neighbors,” he said.
Even if the company lost its current customers, McCarthy said it would have no trouble finding new buyers in the region. (Hays County is the fifth-fastest-growing county in the U.S.).
Still under contract
Amid the uncertainty, the city of Buda has turned to other options, striking an agreement last week with the cities of Kyle and San Marcos and the Guadalupe-Blanco River Authority to receive water that will cover a temporary shortfall of 1 million gallons per day projected to hit in 2017. (The city’s next water source comes online six years after that).
Those entities previously had told the city no when it asked for help, said Buda Mayor Todd Ruge, noting the city’s predicament has inspired a neighborly change of heart.
But Buda still is under contract with Electro Purification, which has until Oct. 20 to prove it can supply the water. And the Goforth utility district, which serves nearly 20,000 people, still is banking on it.
“We’ve got an existing, firm contract with EP so we do expect to get water from EP,” said Goforth’s lawyer, Leonard Dugal.
Asked if the utility district would feel comfortable buying water from a pipeline built before Electro Purification secures a final permit, Dugal said “If the pipeline is built, I think we’ll take water out of the pipeline.”
This article originally appeared in The Texas Tribune at http://www.texastribune.org/2015/09/09/new-law-may-not-thwart-controversial-water-project/.