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Aquifer district awaits response from company violating pumping rules

Friday, January 20, 2012 by Elizabeth Pagano

The Barton Springs Edwards Aquifer Conservation District shied away from levying considerable fines against one of its permittees last week, despite the company’s failure to attend a public hearing on their violations.


The district has been trying to contact Don and Jessie Farmer, the owners of Don’s Grass at 6420 US 290, for months. Though there was some contact the day of their public hearing, neither the Farmers nor a representative showed.


According to the district, Don’s Grass has violated district rules that mandate water meter usage on their well, and reporting of monthly meter readings to the district. The violations were discovered in September of last year, and a lack of communication (or presumed action) from the owners caused the fines, which are assessed daily and doubled during Stage III drought, to spiral out-of-control in subsequent months.


As of Jan. 5, the estimated fines for the violations were between $57,000 and $117,000.


Senior Regulatory Compliance Specialist John Dupnik noted that the figure was a bit shocking.


“When you compare the enforcement penalties calculated this way, for example, to their annual water use fees, it seems like there can be substantial disconnect in which the penalties are perhaps not commensurate with the annual water use fees,” said Dupnik.

“In this example, their annual water use fees are only on the order of $306 per year.”


The enforcement penalties are set by the district, which does not employ the enforcement policy very often.


After debating a range of modified penalties from $3,000 to about $35,000, and weighing likelihood of receiving the money against the possibility that issuing a larger fine might discourage others from disregarding district policy in the future, the board ultimately agreed on a novel solution.


Most seemed to agree the likelihood of being paid any fine was not great.


“They have a lot of other issues on their plate,” said Dupnik, “We may be well down the line of problems”


John noted that the proposed fines were apparently large enough to discourage the owners from future violations, given the fact that they had taken it upon themselves to pull out their own pump –at a cost of around $3,000.


“It was an extreme reaction that was completely unnecessary on their part. They have a permit. They have a well. And for some reason, I think they just threw their hands up and thought that pulling the pump, would remedy the situation. Again, they failed to communicate any of this,” said Dupnik


Board Member Craig Smith advocated for a fine of $34,600, saying, “If there were somebody here saying ‘I’d pay that,’ I’d go for it. But there’s nobody. I think that any number we come up with has an equal likelihood of being paid. Zero…I’m interested in showing that we’re being fair in charging them a fee that would deter others from doing this. They made some money off of this water that they pumped in violation of our rules.”


Ultimately, the board voted in favor of an unorthodox compromise. They adopted a final enforcement order against the Farmers, which gives the business a choice. They may pay a reduced fee of $12,150, or, in lieu of that penalty, can “provide the district permanent access and use of the well as a monitoring well.”


If they choose to grant the district access to the well for monitoring, they would still be able to use the well.


Though the district had no plans to drill a monitoring well there, General Manager Kirk Holland did state that the well, at that location, would be a value to the district.


It is uncertain how, when, or if the Farmers will choose to respond to the board’s ruling.


Neither Jessie nor Don Farmer responded to requests for comment from In Fact Daily. 


“It’s only escalated to this level, in my opinion, because of the permittee’s failure to respond in any way to any of our correspondence,” said Dupnik. “It seems clear that they took action every time that they were notified of something, but they failed to report what that action was to us. We were completely uniformed.”


The owners would also have to consent to provide accurate accounting of water withdrawals in the future, cease pumping for the remainder of the Stage III critical drought, and update their documentation (UCP and UDCP) as necessary.


The board voted 3-0 to approve the final enforcement order, with President Mary Stone and Board Member Bob Larsen absent.

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