Aquifer Association Proposes Tighter Regulation Of EP

The recent water wars in Hays County have shifted into the courtroom. 

 

The Trinity Edwards Springs Protection Association (TESPA) filed a lawsuit in the Hays County District Courts March 20 against Electro Purification (EP). The lawsuit was initiated on behalf of residents who live within half a mile of the company’s proposed project, according to court documents.

 

The suit was filed in an effort to stop EP’s plans to pump over 5 million gallons of water per day from a currently unregulated area of the Trinity Aquifer, said Jeff Mundy, lead trial lawyer for TESPA.

 

Members of TESPA believe the drilling site falls into the jurisdiction of the Hays Trinity Groundwater Conservation District (HTGCD).  

“We feel very firmly that this is within that HTGCD jurisdiction,” Mundy said. “If that is determined correct, then (EP) has to apply for a permit with that district.”

 

EP officials would have to be more environmentally conscious to obtain a permit based on government criteria, Mundy said.

 

“There’s some statutory criteria the State has put in place that have to be analyzed to determine what amount of water can be pumped in a sustainable fashion so that it doesn’t injure the neighbors or the aquifer,” Mundy said.

 

TESPA officials ask the rule of capture as it applies to groundwater be overturned if the court decides EP’s work site is not under the jurisdiction of the HTGCD, according to court documents.

 

Mundy said under the law of capture, a property owner can pump an unregulated amount of water from any site on his or her property even if their neighbors’ supply is damaged.

 

“And if all of your neighbors can’t live in their homes any more because they have no water, the rule says you’re not liable to your neighbors even though you’ve damaged their land and their homes,” Mundy said.

 

In a March 20 press release Tim Throckmorton, manager of EP, said TESPA officials are trying to take away “every Texan’s fundamental right” to capture and beneficially use groundwater beneath his or her land.

 

Throckmorton said misinformation has been circulated by opposing groups, some of which can be found in the witness statements in the lawsuit filings.

 

Texas is the only state to use the rule of capture. TESPA officials hope the courts will apply the law of reasonable use, also called the “American rule,” that other states use.

 

“The common law of reasonable use is that people can use what water they need for their own domestic and livestock uses,” Mundy said. “But they’re not allowed to pump it off premises to sell.”

 

Vicki Hujsak, president of TESPA, lives about a mile away from a site EP plans to pump from and was “horrified” when she heard of the company’s pitch.

 

“For us, the scariest part is if they (pump the water), the people within one mile, which is an entire Rolling Oaks neighborhood, will lose their water supply,” Hujsak said.

 

She said water is especially precious because of the recent drought.

 

“(We need to) figure out some way to supply water to everybody that needs it,” Hujsak. “But let’s not do it at the expense of destroying something that we can never get back once it’s gone.”

 

Jim Blackburn, co-founder of TESPA, said supporters of the organization work together to achieve progress.

 

“Some people are working at the legislature, some people are working here at the grassroots level, letting people know about what’s happening, and others of us may be going to court,” Blackburn said.

 

Blackburn said the way water rights are determined in Texas is problematic.

 

“We would hope to get an expression by the courts that there’s regulatory authority and that EP has to get a permit before they can proceed,” Blackburn said. “That, at least, would begin to put some measure of reasonableness on the withdraws.”

 

HTGCD officials would be able to equally allocate the water supply if the lawsuit plays out in TESPA’s favor, he said.

“There’s sort of a rural way of life that exists back in the Driftwood and Wimberley area, and I would say that’s threatened very much at this point of time,” Blackburn said.

 

Groundwater is not the only “precious resource” at stake, he said. 

 

“Springs are what makes this part of the state really, really unique and a wonderful place to live,” Blackburn said. “We’re in danger of not only losing our water supply, period, but we’re also in danger of losing those kind of characteristics that make many of us want to live in these areas.”