Hays Trinity Ground Water Conservation District President Andrew Backus addressed Hays County Commissioners last week. Photo by Sean Batura.
By SEAN BATURA
The Hays County Commissioners Court heard testimony last week from Hays Trinity Groundwater Conservation District (HTGCD) Board President Andrew Backus (District 3), who expressed displeasure at another failed attempt by the district to obtain what he called “sustainable funding mechanisms” available under Chapter 36 of the Texas Water Code.
The commissioners court passed a resolution in early March supporting state legislation to increase HTGCD’s power and funding, though commissioners stopped short of advocating full Chapter 36 authority. Since then, the ground water district and local legislators have been unable to agree on a legislative proposal.
“The Hays Trinity Groundwater Conservation District was created as a shell district that is unable to do its job,” Backus said to the court. “We’ve been stating that for — since 2003, when we were confirmed. And since 2005, we’ve been attempting to work with Representative (Patrick) Rose (D-Dripping Springs) and Senator (Jeff) Wentworth (R-San Antonio), and gotten nowhere. We’re in that situation again, so we’re just kind of forewarning you that we will be back with our hand out, asking for help again next year.”
The Hays County Commissioners Court in each of its last two budget cycles allocated $75,000 to HTGCD.
“Currently, we don’t have adequate funding,” Backus said after the commissioners court meeting. “We need on the order of $400,000 a year revenue to do the job we’re supposed to do. And right now, the revenue that we’re allowed is about $80,000 a year. Oh, and by the way, the only way that we can generate any revenue is by encouraging production from the aquifer that we’re supposed to manage. So, it’s contrary to the whole concept of a district. It’s sort of like, your job is to save the whales, but the only way you can do that is by selling hunting permits.”
Hays County Commissioner Karen Ford (D-Dripping Springs) and Hays County Judge Liz Sumter (D-Wimberley) said they sympathize with HTGCD board members’ frustration. Ford and Sumter reiterated their support for full Chapter 36 authority for the district. Sumter abstained from voting on the court’s March resolution. Ford, along with the rest of the commissioners, voted for it, while emphasizing the political impossibility of gaining full Chapter 36 authority for HTGCD.
“I really do hope that we find a way to get there,” Sumter said last week. “Because it is important for our water resources on the west end of the county … Not to have that local authority (to) handle our groundwater district is probably a huge mistake … You’re talking about a number of wells out there that don’t go regulated at all. Anybody who has a residential well could, if they wished, take 25,000 gallons of water a day out of it. And that is a phenomenal number, when you consider that most use just a couple hundred gallons a day. So, yes, not having full Chapter 36 and (not) having a real handle on what our real water usage is is tough, and will have phenomenal consequences in the future.”
HTGCD is located in a “priority groundwater management area,” as designated by the Texas Commission on Environmental Quality (TCEQ). State law defines priority groundwater management areas as those regions that are experiencing or are expected to experience “critical groundwater problems.” Backus said water levels in many northwestern Hays County locations are showing long-term decline. He said well construction reports indicate that drillers are encountering water at deeper levels than they were 10 years ago.
“This fits with the concept that we are over-drafting the aquifer, using it beyond a rate that is sustainable,” Backus said. “We just got some isotope data back that age dates water in our three aquifers. It indicates, as it does elsewhere in the Hill Country, that lower Trinity Aquifer water is more than 10,000 years old. Meaning, that water does not recharge in human time frames, (so) we need to be very deliberate as to how to exploit that resource, because once we use it, it’s gone.”
HTGCD Vice President Doug Wierman (District 1) said the district has received complaints from residents concerned about the amount of water pumped by neighbors. Under Chapter 36, a GCD cannot require permitting of a domestic well or a well that provides water for livestock or poultry on a tract of land larger than 10 acres that is incapable of producing more than 25,000 gallons of groundwater a day.
“We know of people that are filling up lakes and vanity ponds on their property that are easily pumping that,” Wierman said. “I don’t think it’s a general rule. If it was, we wouldn’t have any water left in the aquifer … We do know people that pump more than that.”
HTGCD’s enabling legislation bans the district from requiring permitting of all domestic wells pumping less than 25,000 gallons, regardless of acreage. HTGCD also cannot require the permitting of a well used for “conventional farming and ranching activities,” regardless of acreage or amount of water pumped.
After the commissioners court passed the resolution in March supporting legislation enabling near-Chapter 36 powers for HTGCD, the district’s board members submitted draft legislation to Rose and Wentworth. As more district residents read the draft legislation and provided input, HTGCD board members made revisions, submitting at least 10 versions of the bill to the legislators.
HTGCD’s proposed legislation would have allowed the district to hold an election so voters could decide whether to institute an ad valorem tax to fund the district’s operations. The legislation would also have allowed the board to require permitting and metering of wells not exempt under Chapter 36 and some wells currently exempt under the district’s enabling legislation.
“We figure we have about 6,500 wells in the district,” Backus said. “At the current time, we have no intention of or interest in trying to meter all those wells. That’s a lot of wells to try and meter and police and do all that stuff to.”
Backus said the board would likely require permitting of non-exempt wells on less than five acres of land. HTGCD’s proposed legislation would have also allowed board members, who are elected officials, to vote on whether to institute other funding mechanisms. The new funding mechanisms, which Backus said are used by surrounding groundwater conservation districts, would include allowing the board to increase the new well construction fee cap to $400 and increase the cap on the utility connection fee payment up to $400. The current fees, which constitute the district’s only funding mechanisms, are both capped at $300. The proposed new connection fee would be charged each time property containing a well changed ownership, as opposed to the current one-time connection fee. HTGCD’s proposed legislation would allow board members to implement a new well owner registration fee of up to $125 and a production fee of 17 cents per thousand gallons of pumped groundwater.
“All these fees would be eliminated in the event we got ad valorem taxation — or they would be greatly reduced,” Backus said. “Ultimately, how that plays out would be up to the board. The (proposed) legislation gives us the authority to do all those things, but the primary purpose to having all those fees is to keep the district alive in the event that ad valorem taxation is not approved by the voters.”
Backus and Wierman met Rose at Wentworth’s state capitol office on March 30 to see what the two legislators had developed. Also present at the meeting were Wentworth, HTGCD attorney Greg Ellis, HTGCD lobbyist Phil Cates and reporter Asher Price of the Austin-American Statesman, which never published an article on the matter.
Wentworth and Rose described the legislation, which would not grant HTGCD any new authority, but would allow the district to charge utility customers served by wells pumping more than 25,000 gallons a day a $2.00 per month fee to finance a study of the aquifer. The amount the district could collect with the new fee would be capped at $100,000 per year. HTGCD’s authority to collect the fee would cease after two years under the proposed legislation.
Said Backus, “When we left the meeting, we said ‘Look, we hear what you’re offering. We’re not thrilled. We’ll let you know when we see it in writing.’ In the meeting, there was just no room for discussion. We kept trying to bring up things, and we just kept getting, ‘Well, that’s all I can do for you.’ There was no discussion — there was no discussion allowed, is the way to put it.”
Backus said the board received written copies of the Rose-Wentworth legislation around April 16. The three HTGCD board members present at the April 23 HTGCD Board Meeting — Backus, Jack Hollon (District 5) and Joe Day (District 4) voted to reject the legislation. Backus, Hollon and Day were the only members of the five-member board who were present.
“We told them (at the March 30 meeting) what we were prepared to introduce, and we asked them if they would support it, and they said ‘yes,'” Wentworth said. “And then they changed their mind — literally, a day or two before the hearing. And that’s just not the way you do business up there. In addition to which, they’re not members of the legislature. They can draft bills all day long, but they can’t introduce them.”
Rose said Wierman and Backus expressed “verbal support” for the funding mechanism proposed by the Rose-Wentworth legislation at the March 30 meeting.
“Because the district recently reversed its position, this legislation will not proceed,” Rose said.
Backus said the legislators’ bills, identical in content, were unfair because only utility customers are charged a fee, though well owners and utility customers are each using about half of the aquifer.
“(Rose and Wentworth) never criticized our bill,” Backus said. “They never gave us any feedback, specifically, on what we sent them. All they did was tell us, ‘All we can help you with is what we’re giving you,’ which looked nothing like what we gave them. It was completely, you know, the other side of the moon from what we asked for.”
The board submitted a revision of its proposal — the 11th version — that Backus said was drafted largely to accommodate the concerns of the Hays County Republican Party, which gave input.
“First, (the revised legislation) removes all powers of eminent domain authority,” said Backus in an email he said he sent on April 24, a day after board members voted to reject the Rose-Wentworth legislation. “Second, it limits the ability of the district to enter property to inspect exempt wells. Third, it limits any property taxes authorized at a property tax election to no more than 5 cents per $100 valuation. Fourth, it makes clear that metering an exempt well is an owner decision. Finally, we add limitations on the fee rates the district may charge for new wells, new water taps, transferred well ownership and transferred water taps.”
Wentworth said he did not recall what concessions HTGCD was willing to make, but remembered receiving the last iteration of the board’s legislation.
“But it was a little tardy,” Wentworth said. “And we’d already told them, ‘Here’s the bill we’re prepared to go forward on.’ And we already introduced our bills, and (we) explained to them very clearly (that) ‘This is the deal, we hope you support it, and if you do, we’re going to move forward on it.’ And they said they would, and so we introduced them and we’re ready to proceed.”
Ellis, who worked in the legislature for four sessions, said Rose and Wentworth had until the end of April to file the 11th version of HTGCD’s legislation. Ellis said if the authority to collect property taxes and the change in director term durations would have been taken out of HTGCD’s proposed legislation, the legislators could file the bill at any time or amend it on an existing bill.
Rose said the HTGCD requested “numerous new powers,” including allowing district employees to enter private property, decreasing the number of grandfathered wells and allowing the district to charge up to 50 cents per $100 valuation in ad valorem taxes.
“I do not believe that during these difficult economic times homeowners should be asked to pay more taxes on their home and property,” Rose said.
Ellis, Backus and HTGCD General Manager Dana Carmean noted that during the last legislative session, Rose attached to SB 3 an amendment which created a new municipal utility district in Hays County. True Ranch MUD #1, now inactive, has the power to impose ad valorem taxes without voter approval and has eminent domain authority.
“(Rose) also could have amended the same bill last session with everything that we wanted to do for the Hays Trinity District,” Ellis said.
Two bills authored by Rose this session, HB 4725 and HB 4761, would create or reactivate two municipal utility districts in central Texas with the authority to impose ad valorem taxes and exercise limited eminent domain powers. The Parklands Municipal Utility District No. 1, reactivated by 4761, could levy ad valorem taxes without voter approval. Wentworth authored bills that would create six special districts in central Texas with the authority to impose voter-approved ad valorem taxes, issue bonds and exercise limited eminent domain powers.
Wentworth said most people in Hays County do not want HTGCD to have Chapter 36 authority, especially the power to collect ad valorem taxes. Asked if he thought most residents in the district would have voted for the ad valorem tax, Wentworth said, “I don’t know. I haven’t done any polling on that. I don’t have a feel for that.”
Rose said HB 3265 would grant “limited authority” to some commissioners courts, including those of Blanco and Hays County, to regulate land development in unincorporated areas of the county.
“The ability to use these powers is based directly on the desire to protect our limited groundwater, and any infrastructure fees assessed must be spent on road improvements that serve the new development,” Rose said.
Had the Rose-Wentworth legislation passed, HTGCD would have declined utilizing the new funding mechanism.
“Which is better than they’re getting now,” Wentworth said. “And they elected to say, ‘No, we don’t want that, we want something more,’ after we already told them, ‘This is the deal, and we need you to support it.’ And they said, ‘No we don’t support it.’ And we said, ‘OK, we won’t go forward with the bill. We’ll see you in 2011.'”
About the prospect of the district someday gaining full Chapter 36 authority, HTGCD Treasurer and Board Member Mark Hemingway (District 2) said, “I certainly don’t have any particular reason for extreme optimism, but you never know what can happen over two years.”Email | Print