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Western Travis still Wild West of groundwater with no district in sight

Tuesday, May 13, 2014 by Mark Richardson

A decades-old plan to put an unprotected area of western Travis County into a groundwater conservation district, or GCD, appears to have been killed with the stroke of a pen recently by the Texas Commission on Environmental Quality.


The most recent effort to create a district for the area or to merge it with an existing one, initiated in 2010 by the state environmental agency, was halted in January when TCEQ Executive Director Richard Hyde petitioned the State Office of Administrative Hearings with a motion to dismiss the pending case, which is now officially closed.


The idea for possibly creating a groundwater district in the area originated from a 1990 Texas Water Commission report, which spun off the creation of the Hill County Priority Groundwater Management Area, or PGMA, which includes Bandera, Blanco, Gillespie, Kendall, Kerr Comal, Hays and Travis counties. The TCEQ furthered the idea in a June 2010 study recommending options for unprotected areas within the Hill Country PGMA. (See TCEQ report)


According to John Dupnik, general manager of the Barton Springs Edwards Aquifer Conservation District – which at one time was a candidate to merge with the western Travis County area – the end of the district effort is bad news.


“It basically puts us back to where we were when we began talking about managing in that area,” he said. “All of the groundwater there still is subject to the ‘Rule of Capture,’ which means landowners can pump up all the water they want without any controls.”


The Rule of Capture means that – unlike surface water (lakes, ponds, streams, etc.) – the absence of a permitting authority like a GCD allows unlimited pumping of ground water from beneath an owner’s land. The concept dates back to the founding of the Republic of Texas in 1836 and was codified when the current Texas Constitution was adopted in 1876.


The problem with the Rule of Capture, Dupnik says, is that underground water does not respect property lines or political boundaries. Water pumped from one region can affect landowners next door, as well as those two counties over.


“Aquifers flow for hundreds of miles, crossing dozens of properties and across county lines,” he said. “Someone pumping enormous amounts of water from under their land can lower the level of their neighbor’s well, along with other wells a hundred miles away. That means that even though pumping in western Travis County can affect the levels in our aquifer, we can’t really do anything about it.”


Craig Smith, longtime board member at the Barton Springs district, said he believes the people who live in western Travis County want – and need – a groundwater conservation district.


“Their groundwater is unprotected, and they are not satisfied with leaving the situation that way,” he said. “But with TCEQ out of the picture, at this point I think it will have to be some type of grass roots venture coming up from the population to get something started again.”


Smith said a recent ruling by the Texas Supreme Court could complicate the issue of creating an aquifer district. In Edwards Aquifer Authority v Burrell Day, the state’s high court ruled that landowners do “hold property rights to groundwater under their land and it could be considered an unconstitutional taking if it is regulated arbitrarily.


“It didn’t address the creation of a district,” Smith said. “It did address what a permitting district – in this case the Edwards Aquifer Authority – might do under its constitutional authority.”


Smith said some people say that the case means that groundwater can’t be regulated in Texas.


“But specifically the court said that’s not the case,” he said. “They said that groundwater is subject to ‘reasonable’ regulation. They likened the regulation of groundwater to the regulation of oil and gas by the Railroad Commission.”


“So what’s the big deal?” Smith asked. “We’ve been doing that for decades.”


As early as 2006 – in the midst of a severe drought – landowners in western Travis County complained that over pumping by developers was causing their wells to run dry and began calling for the creation of a groundwater district for the area. (See In Fact Daily, June 14, 2006)


The area in question in western Travis County runs from the county line on the west and south, along Lake Travis and the Austin city limits on the east and along the north border of the Barton Springs district, which runs 2 miles west of South MoPac Boulevard. The area borders the Barton Springs, Hays-Trinity, Blanco Pedernales and Central Texas groundwater districts. Other parts of the Hill Country included in the TCEQ plan included a large portion of western Comal County which includes Canyon Lake.


The 2010 plan, put forth by the TCEQ, had both supporters and opponents. Water district officials and environmental interests backed the idea of either forming a new GCD or merging it with one of those bordering, preferably the Barton Springs district. Opponents included fiscal conservatives opposed to any new taxing authority and developers opposed to any additional agency that could control building in the region.


The creation of a groundwater district must be blessed by the Texas Legislature, which appears to have been the major roadblock in this situation, according to Christy Muse, executive director of the Hill Country Alliance, who said that political support for creating a district has been something of a moving target.


“The TCEQ director issued an order back in 2010 to create a three-county (Travis, Hays and Comal) district and since then, they’ve kept the process alive but they have been altering their recommendations,” Muse said. She said there was political consensus among those in the three-county area in 2010, but that has fallen off as time has passed.


“After support for that fell off, the TCEQ came back with a recommendation that western Travis be annexed by the Barton Springs district and that western Comal be annexed by the Trinity-Glen Rose groundwater district,” she said. “The Barton Springs district did a good job of studying the feasibility of how they could take on western Travis, but it wasn’t a politically popular idea with some of the elected officials.”


In a statement provided to the Austin Monitor, TCEQ information officer Andrea Morrow wrote, “The SOAH hearing on the Hill Country PGMA had lasted for several years. Many of the original parties were no longer actively participating and the ones that were had conflicting ideas on how to address the groundwater issues within the PGMA.”


She continued, “The Executive Director concluded that it was not the best use of everyone’s resources to continue with the hearing under those circumstances. The decision to cancel the hearing was also based on efforts being made to resolve the issues legislatively and locally…”


Legislation to merge the area with the Barton Springs district (as well as the proposed merger in the Comal area) failed to gain traction in the last two legislative sessions. Any remaining support for putting a GCD in the area may have died when bills by State Rep. Valinda Bolton, a Democrat whose district included western Travis County, and the person who followed her in 2013, Republican Paul Workman, both had bills to create districts which failed.


Bolton sponsored a bill in 2011 that would have created a district that included western Travis County in the Trinity Aquifer district. That measure was passed by both houses, by was stripped out in a conference committee after Gov. Rick Perry threatened to veto the measure.


Workman filed a bill in 2013 that would a have created a new GCD in western Travis County, but it failed to make it out of committee after a viable funding formula could not be found.


Bolton says she is still puzzled by the environmental agency’s latest actions.


“The people at TCEQ were ones who were saying, ‘This is a PGMA and it needs a groundwater conservation district. Either you create one, or we’re going to do it,” she said. “But our attempts to create one have failed, and now they say they’re not going to do it. I’m not sure where that leaves us.”

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