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Quarries question aquifer district’s authority to prohibit water use

Monday, November 23, 2009 by Laurel Chesky

In September, the Barton Springs-Edwards Aquifer Conservation District passed a set of new regulations designed to protect the aquifer during times of drought. Those rules aren’t sitting well with at least one of the district’s constituents, who has indicated that legal action might be in order if the district enforces the rules.


The rules tightened water-use restrictions during drought, calling for a tiered schedule of curtailment during various phases of drought severity. During the most extreme drought conditions, the rules call for a 100 percent ban on water use except for health and safety purposes.


That means that in extreme drought, two industrial permittees in Buda, CenTex Materials and Texas Lehigh Cement Company, would have to shut down their operations. The companies use well water from the Edwards Aquifer to wash rock mined from their quarries and produce cement.

“We feel like the industrial permittees should not take the brunt of the (drought) conditions,” said David Loftis, president of CenTex, at the district’s September board meeting. “We are vital to this community and we should be considered and not overlooked. … We are working towards other water sources but it doesn’t happen overnight.”


Nevertheless, the board passed the rules, and permittees were notified that they were required to update their User Drought Contingency Plans to comply with the new rules. But late last month, CenTex made it clear that it’s not in a hurry to acquiesce.


“… Centex will be uniquely and significantly impacted by the drought restrictions in the adopted rules,” Loftis wrote in an Oct. 30 letter to the aquifer district. “CenTex is currently evaluating its options and the impact of the rulemaking on its operations and at this time we will not be submitting an amended UDCP by the October 31, 2009 deadline.”


Apparently, one of the options CenTex was considering is legal action against the aquifer district. At the Nov. 19 district board of directors meeting, district General Manager Kirk Holland said that in a subsequent communication, a CentTex representative indicated that the aquifer district “went beyond its authority” in the rulemaking and that the curtailment rules “constitutes a taking.” An unjust “taking” is the legal term for the government condemning property without fairly compensating the owner.


Complicating the matter is the fact that the board cannot easily change the rules. Amending them requires an extended public education and comment period.


The board went into closed session to discuss the matter with the district’s attorney, Bill Dugat. Afterwards, in open session, the board voted to suspend the requirement for submitting an UDCP to comply with the new rule until August 2010. The board also directed Holland to set up a series of meetings with CenTex to discuss the rule changes and to continue studying the possibility of the company replacing aquifer water with treated wastewater effluent.


CenTex and Lehigh are currently in discussions with the city of Buda to acquire treated wastewater effluent to use for their operations. The district, concerned about effluent contaminating the aquifer, is also working with the businesses to identify and implement methods of diverting runoff away from the aquifer’s recharge zone.


Aquifer board members have indicated their initial support for the project in order to conserve the nearly three million gallons of aquifer water the two companies collectively use each year. 


At last week’s meeting, Board Member Mary Stone reiterated her strong support for the effluent project, saying that she’d prefer aquifer water not be used to “wash rock.”

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