Left to right: Hays County Precinct 3 Commissioner Will Conley, Hays Trinity Groundwater Conservation District (HTGCD) attorney Greg Ellis, and HTGCD co-general manager Dana Carmean. Photo by Sean Batura.
By SEAN BATURA
Following a contorted process in which a local groundwater district couldn’t agree with local state legislators on a funding bill, Hays County commissioners appear ready to increase the district’s funding from the county.
Commissioners intend to provide $100,000 in the Fiscal Year 2010 budget to the Hays Trinity Groundwater Conservation District (HTGCD), the same amount of money the district may have generated on its own had its governing body not rejected a funding bill offered by legislators this spring.
The elected board members of HTGCD, the governmental entity tasked with managing groundwater in western Hays County, asked State Senator Jeff Wentworth (R-San Antonio) and State Representative Patrick Rose (D-Dripping Springs) at the start of this year’s legislative session to grant it full Chapter 36 status common for groundwater districts throughout the state. Rose and Wentworth declined, instead offering legislation that may have provided up to $200,000 over two years.
HTGCD’s board voted to reject the legislators’ proposal, then offered a compromise version of the legislation it had proposed earlier. Rose and Wentworth decided to not move forward with any legislation for HTGCD, which received $75,000 from Hays County in the county’s 2009 budget. Commissioners considered that allocation a temporary expense, believing HTGCD would work out a deal for state funding going forward.
Hays County Precinct 3 Commissioner Will Conley (R-San Marcos) and Precinct 2 Commissioner Jeff Barton (D-Kyle) support continuing to support the district with county funds, but criticized HTGCD for rejecting the legislators’ proposal.
“When I’m in Vegas, I take bigger risks when I’m playing with my brother-in-law’s money,” Barton told HTGCD attorney Greg Ellis at the Aug. 11 commissioners court meeting. “And I feel a little bit like some members of the district board felt insulated from risk because they had the county’s money to play with. When I first came on this commission, (county money given to HTGCD) was to be one-year stop-gap funding … until we got funding from the legislature. And then we got to the legislature and (you) said, ‘Well, that’s not enough, we want more and better funding sources.'”
The proposed FY 2010 county budget includes $100,000 for HTGCD, which has jurisdiction over 54 percent of the county’s land mass. The county has allotted $75,000 to HTGCD in its last two budgets. In June, after turning down the legislators’ proposal, HTGCD asked commissioners for $250,000.
HTGCD Board Member Andrew Backus (District 3) said in June that HTGCD usually receives about $80,000 per year but needs about $400,000 per year to effectively do its job.
Groups such as Take Back Texas and individuals like Hays County property owner Mark Key say all HTGCD board members except Greg Nesbitt (District 2) have a “no growth agenda.” Key spoke at the Aug 25 commissioners meeting to oppose more county funds going to HTGCD. Citizens for Responsible Development representative James McMeans, who was at the Aug 11 meeting to support allocating county money to HTGCD, said his group is not against growth, just unsustainable growth.
Conley, whose precinct includes the Wimberley Valley, said more “independent” research needs to be done on the Trinity Aquifer if effective means of recharging it are to be found. Volunteers conduct a large percentage of scientific investigations initiated by HTGCD.
HTGCD President Doug Wierman (District 1) said in an email Saturday that all of HTGCD’s scientific work is performed by or under the supervision of professional geoscientists licensed by the Texas Board of Professional Geoscientists, whether they are paid or volunteers. Conley said Friday that research conducted by paid professionals is more objective and credible than work performed by volunteers.
“Knowing who the volunteers are and their background, it’s more valuable than paid work,” said Hays County Precinct 4 Commissioner Karen Ford (D-Dripping Springs) on Aug 25.
Ellis, who is also Executive Director of the Texas Alliance of Groundwater Districts, responded to Conley’s concerns voiced on Aug 11 by saying that he would trust conclusions reached by volunteers, as long as he could verify that they use the proper scientific procedures.
“On the other hand,” Ellis said, “in lots and lots of cases, where you have two people in the exact same field with the exact same degrees, you reach the exact opposite conclusions about an aquifer, based on who it is that hired them and how much they were being paid to reach that particular conclusion.”
Ellis said the Texas Water Development Board (TWDB) has not expressed concern about HTGCD’s scientific results so far. Conley said last week that he is unmoved by Ellis’ reasoning, reiterating that not enough independent research has been conducted. Conley said he would tie county funds received by HTGCD to paid professional research, if he could.
“I don’t have the votes on the court to do that,” Conley said. “They could use all the $100,000 on lawyers if they wanted to. Or lobbying the state legislature if they wanted to. That’s the way it is set up today.”
Ellis said HTGCD would use the $100,000 for the operations of the district, part of which would be for scientific work and paying district personnel. Ellis said that in return for funding the district, HTGCD would assist the county with plat reviews and water availability studies.
HTGCD has declared a moratorium on any new pumping permits until the TWDB issues the managed available groundwater number, which will set a limit on how many water pumping permits can be legally issued by HTGCD. Ellis said the district is granting no new permits, so will not have to revoke them later.
“In the next year, the role of this district is going to change dramatically,” Ellis said at the Aug 11 meeting. “And that is because the deadline for setting the desired future conditions is in 2010. And once we set that desired future condition, which basically is a description of what we want these aquifers to look like over the next 50 years, the (Texas Water) Development Board is gong to be issuing what they call a ‘managed available groundwater number.’ And this district is duty-bound at that point then to issue permits up to that number to insure we achieve that desired future condition … It’s going to be very difficult for this district to do so because they are so limited in their authority and so limited in their funding.”
Hays County residents voted to create the HTGCD in 2000. The district was structured in 1999 according to the designs of Wentworth, then-State Representative Rick Green (R-Dripping Springs), then-Hays County Judge Jim Powers (R-Dripping Springs), and others. Had residents voted against creating the district, the state would have imposed one on the county with all the authority granted to GCDs under Chapter 36 of the Texas Water Code, which is the authority district officials wished to obtain during this year’s legislative session.
As it turned out, HTGCD was created without the ability to collect ad valorem taxes or charge well production fees. HTGCD’s enabling legislation also bans the district from requiring permitting of all domestic wells pumping less than 25,000 gallons, regardless of acreage, and the district cannot require the permitting of a well used for “conventional farming and ranching activities,” regardless of acreage or the amount of water pumped. The only way the district can fund its operations is by charging new well construction fees and one-time utility connection fees, both of which are capped at $300.
“From 2006-2007, (the number of new wells) was cut in half,” Ellis said. “It’s cut in half again by 2009. So we’re bringing in one-quarter of the amount of money we brought in in 2006 because the number of registered wells has gone down. Now, quite honestly, that’s a good thing for the aquifer … but by tying our funding to the number of wells that are drilled, the legislature, in fact, actually requires us either to forego funding or to forego doing our job. That’s an untenable situation that cannot continue. We’re going to have to get the legislature at some point to fix it.”
Hays County Judge Liz Sumter (D-Wimberley) said she has supported more funding mechanisms for HTGCD since 2000, when she campaigned for the district’s creation and for its initial board members. Sumter said that because Jacob’s Well stopped for the first time that year, there was an increased sense of urgency to create a GCD. Sumter said that if residents had opposed the creation of the district, they might have gotten one with full Chapter 36 authority, though it might have taken too long, which is why she would still have supported creating, in her words, a “gutted” GCD if given a second chance.
Three current board members have contributed money to Sumter’s re-election campaign. At a June 21 event, Doug and Constance Wierman contributed $75, HTGCD board member Jack Hollon (District 5) gave $100 and David Baker (District 4) contributed $50. Baker is also Executive Director of Wimberley Valley Watershed Association (WVWA), an organization “dedicated to protecting our region’s water quality and quantity by promoting sustainable watershed management through community education, conservation, and land protection,” according to its website.
WVWA board members Pokey Rehmet and Dorothy Knight gave $50 and $25 to Sumter’s campaign, respectively, on June 21. Former board member Joe Day (District 4) contributed $50 the same day.
Hollon contributed $100 to Ford in September 2008. Ford, has been a vocal advocate of full Chapter 36 authority for HTGCD. Just before Ford voted for the March 3 resolution for greater HTGCD authority, she said the legislature was not likely to support full Chapter 36 for HTGCD, so it was better to get “something, not nothing,” and work for more later.
Conley told Ellis on Aug 11 that if HTGCD board members had supported the March 3 resolution, Rose and Wentworth may have been more willing to give the district more power and funding mechanisms. Sumter abstained from voting on the resolution, citing her opposition, echoed later by HTGCD’s board, to an item added at the last moment that asked the legislature to exempt “existing residential well owners” from permitting and metering, and insure “certain lot owners with no other access to water” be entitled to pumping permits from HTGCD.
The Rose-Wentworth proposal would have allowed HTGCD to generate up to $100,000 per year for two years by charging utility customers served by wells pumping more than 25,000 gallons per day a $2.00 per month fee to finance a study of the aquifer. At the Aug. 11 meeting, Ellis told commissioners that the Rose-Wentworth proposal suffered from “very serious legal infirmities.”
Said Ellis, “As soon as we adopted that rule, we would have been sued, and probably would have been in the courts for the entire two years that that funding was supposed to have been available, and would have been spending all that additional money that we didn’t have on trying to defend the fee rather than on collecting the fee. The problems with the fee were there were equal protection problems, meaning it was not designed to hit all the pumpers. There was a problem in that it was not voted on by the people. It was a flat tax, if you will, per meter, as opposed to funding based on how much groundwater was being pumped.”
HTGCD’s board members said the proposal offered by Rose and Wentworth in March unfairly charged only half of groundwater users a fee and contained no new regulatory authority. The proposal offered by HTGCD’s board to the legislators on April 24 contained five compromises, including a removal of eminent domain authority, a limit on property taxes authorized by a property tax election of no more than five cents per $100 of valuation, and a limitation on the ability of the district to enter property to inspect exempt wells. Rose had said he was against granting HTGCD the power to enter private property. Wentworth and Rose said they opposed allowing residents of western Hays County to vote on whether to allow HTGCD to collect property taxes.
No HTGCD board members were at the Aug 11 meeting, which Barton said disappointed him because he had specifically asked for them to be there for their presentation, which was conducted instead by Ellis. HTGCD constituent and Henly resident Jimmy Skipton was at the meeting, expressing dismay that the elected board members had sent their lawyer on behalf of themselves, though he supported the county funding the district.
Hollon appeared before the commissioners court at an Aug 25 meeting to explain that “conflicting summer schedules” had prevented board members from participating in the presentation.
Public hearings on the proposed budget will take place at the Hays County Courthouse on Sept. 2 at 9 a.m., and on Sept. 9 at 6 p.m. County commissioners plan to vote on the final version of the budget after a 9 a.m. public hearing on Sept. 16.
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