Electro Purification

EP, Rule of Capture, and the Birth of TESPA

In 2015, a private groundwater developer, Electro Purification, LLC (EP) sought to pump almost 6,000 acre-feet a year from the Trinity Aquifer in Hays County near Driftwood and Wimberley in order to pipe water to growing communities along the I-35 corridor.

The very spot where EP chose to drill its wells, into the Trinity Aquifer which sat below the Edwards Aquifer, was unregulated territory. The Edwards Aquifer Authority (EAA) has jurisdiction over the Edwards, but not the Trinity – and at the time, neither of the other two groundwater conservation districts in Hays County, HTGCD or BSEACD, had authority either.

The situation left a supposed ‘sweet spot’ for the groundwater developer as the location was subject only to the 1908 rule of capture — where landowners are prevented from suing each other when groundwater pumping from one property dries up neighboring wells.

In other words, there were no limitations on how much water EP could pump from the Trinity Aquifer. And 6,000 acre-feet per year would eventually do just that.

The EP project was situated right in the middle of an area where hundreds of domestic wells provided the sole source of water supply to homes in the area. Fearing the amount of groundwater the project sought to pump would dry up nearby wells and springs, the local community galvanized behind a movement to stop the project or include the area in a groundwater conservation district. TESPA was formed.

TESPA filed a lawsuit against EP and the landowners who leased their groundwater rights to EP and arguing the courts should overturn the rule of capture – a noble effort for a decrepit rule that had no place in an era of declining rural aquifers and encroaching urban demand.

Ultimately, TESPA dismissed the lawsuit when HB 3405 passed and extended the jurisdiction of BSEACD over this unregulated area. BSEACD adopted new rules implementing the law and modifying the process the District uses for evaluating permits.

New Rules – New EP Permit

In July of 2017, EP applied for a groundwater production permit from BSEACD for a Middle Trinity Aquifer well field in Hays County - the same well field that previously, had been unregulated.

The permit application indicates that pumping rates will be phased in over time with a maximum permitted pumping rate of 2.5 million gallons per day (MGD), or approximately 912 million gallons per year, pumped from seven wells located on the Odell and Bridges properties.

BSEACD projects that pumping this amount of groundwater will cause 300-500 feet of drawdown in the Cow Creek Aquifer within one year and after seven years could result in dewatering of the Cow Creek Aquifer.

In February 2018, BSEACD determined that potentially unreasonable impacts will occur at residential wells in the vicinity of the well field. As a result, EP submitted a compliance monitoring plan and impact avoidance plan to mitigate and avoid the unreasonable impacts subject to BSEACD approval.

On May 21st, BSEACD staff issued a Statement of Position and recommendation to the Board of Directors to grant EP’s permit application. Staff recommended that pumping volumes be phased in over four phases and recommended special provisions to be included in the permit designed to avoid and mitigate unreasonable impacts to wells and the aquifer.

TESPA, Hays County & Landowners Contest EP Permit

On June 25, 2018, TESPA submitted comments and a contested case request to BSEACD related to EP's application and proposed permit. BSEACD received over 300 comments and 11 contested case requests, including TESPA's, one from Hays County Commissioner Lon Shell, and from individual landowners. Electro Purification requested that BSEACD refer the case for a hearing at the State Office of Administrative Hearings (SOAH).

On September 17, 2018, the Administrative Law Judge (ALJ) assigned to the case held a preliminary hearing to determine party status, ultimately admitting all landowners, Hays County and TESPA as parties to the contested case.

TESPA has serious concerns about the impacts the proposed permit will have on groundwater resources in the area. For example, if the Barton Springs Edwards Aquifer Conservation District issues this permit, it will be giving away all of the remaining groundwater to EP that the Texas Water Development Board has determined is available for production based on the current desired future condition for the Trinity Aquifer in Groundwater Management Area 10.

This unprecedented and grossly disproportionate amount to one permittee is not for the benefit of the permittee’s land upon which the wells will produce, but to export the water out of the area. The water is drawn from hundreds of other landowners’ properties without compensation to them, despite Texas law granting them a vested property right to the water under their land.

TESPA Concerns on the EP Permit

• Excessive drawdown in vicinity of residential wells will occur. Drawdowns of 300 feet are projected a distance of two miles from the well field in the Middle Trinity Aquifer. (see map)

• The large-scale pumping will cause aquifer mining, or overdraft in a portion of the Middle Trinity Aquifer with a currently undefined recharge zone,

• Long term impacts on the Desired Future Condition and on spring flow is unknown,

• Phased permitting approach removes ability of landowners to protest at each stage if they are affected.

In June 2019, BSEACD also revised many of the special conditions of the proposed permit in response to public comments and arguments made in TESPA's testimony. While the revisions have many beneficial changes, TESPA's overall concerns with the proposed permit still exist.

See below for Status Report on EP Permit