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Kyle rejects BSEACD water-permit proposal

Monday, September 27, 2010 by John Davidson

Negotiations between the Barton Springs Edwards Aquifer Conservation District and the city of Kyle over a lawsuit the city filed against the district in July hit a snag last week when the city rejected a proposal from aquifer district staff.


The lawsuit stems from a dispute over the city of Kyle’s permit application to increase the amount of water it can draw from the Barton Springs portion of the Edwards Aquifer by 185,000,000 gallons — from 165 million gallons to 350 million annually. In February, the district voted to grant the permit but reduced the amount to 100.7 million gallons, which did not please city officials and prompted them to file an appeal in April.


The district rejected the appeal and on July 12 the city filed a lawsuit in Hays County District Court against the BSEACD, claiming the aquifer district had violated state law by not following its own rules and that it had applied a different standard to Kyle than it had to previous applicants.


“We complied with the district rules in our application; we’re interested in following the district’s rules,” Kyle City Manager James Earp said. “Anything short of the district following its own rules is unacceptable.”


Earp would not discuss the details of the most recent proposal, which is confidential, but said the city was not interested and would continue its lawsuit in district court.


The proposal itself was not a settlement offer, according to John Dupnik, a senior regulatory compliance specialist with BSEACD. The district board was briefed on the contents of the proposal before it was sent to the city, Dupnik said, although board members took no official action.


The aquifer district maintains it acted within its authority and that it is on “solid legal ground,” according to District Manager Kirk Holland. Both sides have said they hope to settle the suit out of court to avoid costly attorney fees, but Holland and Earp have each said they will go to court if necessary.


Settling the suit, however, might prove more difficult now that a third party has joined the fray. On September 14, the Save Our Springs Alliance filed a plea in intervention, effectively making them a party to the lawsuit.


Since the city of Kyle first applied for a permit to increase its draw on the aquifer, SOS has opposed its efforts. In August 2009, SOS was recognized as an official party to the permitting process, which means that it has the legal right to contest Kyle’s permit application. The group claims that granting the permit would not only put too much strain on the water supply and force nearby residents outside Kyle to ration their water use but would also harm the already endangered Barton Springs salamander.


“The permit as proposed was inconsistent with the district’s rules and responsibilities to manage the aquifer,” said SOS Staff Attorney Andrew Hawkins. “It’s also inconsistent with the regional water supply plan, which acknowledges that this section of the aquifer is over-permitted.”


At the heart of the controversy is whether or not the city is able to replace all the additional water it’s allowed to draw from the Barton Springs portion of the Edwards Aquifer with alternative sources of water, such as from the Guadalupe-Blanco River Authority, where Kyle currently gets a portion of its water supply. The ability to replace the water supply is important because the permit stipulates that access to aquifer water be reduced by 50 percent during an alarm-stage (first-stage) drought and 75 percent during a critical-stage drought. In case of an exceptional-stage drought, access to aquifer water would be shut off completely.


When they filed an appeal in April, city attorneys argued that Kyle proved it can replace all 185 million gallons in case of a drought and contended that the district board deviated from state law by requiring the city to show not only an ability to meet its water demand without relying on aquifer water in case of a drought but also keep an additional 185 million gallons of non-aquifer water in “perpetual reserve.”


Hawkins said that SOS believes the district was well within its authority to grant a permit that limits Kyle’s increased draw to 100.7 million gallons per year, and although they would have liked to see more restrictions attached to the permit, “we see no basis for overturning the board’s decision.”

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