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Aquifer district ends six-year dispute with Kyle

Wednesday, April 15, 2015 by Courtney Griffin

Board members with the Barton Springs/Edwards Aquifer Conservation District wrapped up a six-year dispute with the City of Kyle on Thursday night at their regular meeting, pending a few issues.

“This means we can move on,” said John Dupnik, general manager with the district. He commented that everyone had spent “entirely too long on the matter” anyway.

The disagreement stretches back to 2009, after Kyle disputed an amendment to its conditional production permit, which had been granted by the aquifer district, that allowed it to pump additional water from the Barton Springs/Edwards Aquifer.

In the original agreement, the district granted Kyle access to an additional 100.7 million gallons of water a year. The conditions of the permit stipulated that Kyle needed to have enough backup water supply to meet its demand on top of the additional 100.7 million gallons, according to legal documents.

The documents also state that the conservation district can cut off access to its water supply during a drought or if other factors change.

In February 2010, however, Kyle challenged the district’s decision in the 22nd District Court, saying it misinterpreted its own permitting rules. The city won, resulting in an increase in its production permit to cover 185 million gallons of water a year.

The court ruled that the aquifer district’s “erroneously” employed “ad hoc permitting standard” made its backup water supply requirement too high. It was determined that Kyle only needed to show it had an alternative water supply equivalent to the new production permit’s amount, rather than the demand plus the new permit’s amount.

“At this point, Kyle and us were on the same page,” Dupnik said, referring to the court’s summary of judgment.

In August 2012, however, the Save Our Springs Alliance filed a motion of intervention with the 3rd Appeals Court in Austin, which resulted in the case’s reopening.

“Our primary concern with the Kyle application for the additional ‘Conditional Use’ permit was that the City had not demonstrated that it had alternative, non-Edwards water supplies to rely on during drought conditions,” said Bill Bunch, executive director of SOS. “Our other concern was that the district’s ‘Conditional Use’ permits do not step back pumping early enough during the onset of drought conditions to avoid increasing the frequency of low spring flow conditions.”

But in 2013, the court struck down SOS’s pleas for intervention, which would have allowed SOS to become a third party in the suit, aligning itself with the conservation district.

“The appellate court (ruling) doesn’t even address the intervention issue, but does say, ‘We think … that a judge can’t do that,’ so (the case) got sent back to district court,” said Bill Dugat, an attorney representing the conservation district.

After going back and forth with the Hays County Court for a while, it became clear to aquifer district staff that SOS and Kyle were not very far apart in their differences, Dugat said. Therefore, the district court kicked it back to board for a limited hearing to interpret the rule.

Thursday, the dispute was in its final stage. Kyle, SOS and the district agreed on the rule and Kyle’s 185 additional million gallons per year permit. In addition, the conservation district will also meet with the aquifer district twice a year for three years to discuss pumping in Edwards Aquifer.

At the meeting, however, SOS filed some last-minute paperwork that was more “form over substance,” clarifying the inclusion of a contextual detail in the settlement agreement, Dugat said.

The ordeal caused Board Member Robert Larsen to ask SOS to act like professionals. He questioned why SOS consistently brought in documents at the eleventh hour.

The paperwork shuffle threw somewhat of a wrench in the process, as it required the mayor of Kyle’s signature to move forward. Mayor Todd Webster found out about the requirement an hour before the hearing.

Board members unanimously approved the agreement as long as the Webster’s signature is on the document by April 16.

While Kyle got “almost everything they asked for,” Bunch said the district had done a good job of limiting pumping in the aquifer.

“But at this point,” Bunch said, “we need to be retiring some of those permits rather than allowing yet more pumping, even during higher flow conditions.”



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