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Explainer: The Hays County Water Deal

Monday, February 2, 2015 by Michael Kanin

Each week, the Explainer offers a closer look at stories we have been following. This week we look at the Electro Purification water deals coming out of Hays County.

As Andy Sevilla has reported over the past 10 days or so, Electro Purification — a Houston-based company — is looking to pump nearly 2 billion gallons of water annually out of the Cow Creek Formation of the Trinity Aquifer through a well the firm sunk in western Hays County. The spot Electro Purification chose appears to have been selected for at least one major reason: It is, as Sevilla reported, “located on property just outside the jurisdiction of the Barton Springs/Edwards Aquifer Conservation District and the Hays Trinity Conservation District near Wimberly.”

In other words, Electro Purification found a hole in the regulatory patchwork that Texas grants to authorities that govern the use of groundwater in the state. To be clear: This is perfectly legal. But it’s also enough to have Republican Hays County Pct. 3 Commissioner Will Conley calling for action “to be taken to fill in that white zone.”

Texas water law is notoriously complex. Some water rights trace back to before U.S. annexation, others are governed by quasi-governmental river authorities, such as the Lower Colorado River Authority — which is responsible for the surface water that runs through Austin — and still others are subject to nothing more than the “rule of capture” law perhaps best (simply) described by Daniel Day Lewis’ Daniel Plainview character from the film There Will be Blood as “drinking milkshakes.”

Written concern about water supply in the Western portion of the United States goes back at least as far as John Wesley Powell, who in the latter portions of the 19th century argued that only a fraction of the region “could be sustainably reclaimed.” (More on Powell, a later examination of water in the West and a 2010 study of water in the West from UCLA is here.)

In October, a dramatic vision of all that came courtesy of the San Antonio Water System, when the San Antonio City Council approved a $3.4 billion, 142-mile pipeline that will ship 13.4 billion gallons of water a year from the Carrizo-Wilcox Aquifer underneath Burleson County. (Water infrastructure costs are a subject for another day.)

The San Antonio project is roughly eight times the Hays project in terms of sheer water volume. However, the same regulatory principles apply. According to the Texas Water Development Board, groundwater — the legal definition of the stuff that’ll be used by both the San Antonio and Hays County projects — accounts for “about 60 percent” of the water used by Texans. The board assigns Groundwater Conservation Districts within Groundwater Management Areas to regulate usage in those regions. And though some have long called (and worked) for further regulatory authority in the Central Texas region, that has yet to happen.

And that brings us back to Electro Purification and Hays County. Because there is no active groundwater conservation district in the region of the Trinity Aquifer where the company has placed its well — and despite significant local opposition — there is no specific local regulatory mechanism for the project. It’s all enough to have the Barton Springs/Edwards Aquifer District looking into annexation of well areas in the region — though this could, as Kara Nuzback reported this morning, prove problematic.

Still, just because a regulatory authority exists does not mean that ambitious projects such as these would be tempered. Indeed, the groundwater conservation districts in Burleson County — from whom San Antonio would ultimately be purchasing water — is a partner in the pipeline project.

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