October 15th, 2009
Martindale development spurs water protests

The headwaters of the San Marcos River.

By SEAN BATURA
News Reporter

Two river protection organizations and residents of three local counties are protesting a developer’s pumping of San Marcos River water during drought conditions for a future private lake community near Martindale.

The private lakes are being constructed by development company San Marcos River Ranch, LTD (SMRR), which holds a permit issued by the Texas Commission on Environmental Quality (TCEQ) authorizing the developer to divert up to 150 acre-feet per year from the San Marcos River. The permit also grants SMRR the legal right to impound 195 acre-feet of water in a 40-acre reservoir between Scull Road and Harper Road, and to pump .028 acre-feet of groundwater into the reservoir.

The developer’s permit prohibits the diversion of river water during summer months if the river is flowing below 130 cubic feet per second (cfs) at a river flow monitoring site in Luling. The Luling site recorded a flow rate of 251 cfs as of Wednesday after recent, frequent rains. During the last week of September, the Luling site recorded cfs between 80 and 100. The long-term median flow rate for Oct. 14 is 206 cfs.

Opponents of SMMR’s lakes went into action when the developer renewed pumping of the San Marcos River in September. Residents from Hays, Caldwell and Guadalupe Counties, as well as the San Marcos River Foundation (SMRF) and the Texas Rivers Protection Association (TRPA), held a protest rally across the street from the SMRR development on Sept. 26.

“We’re asking people to conserve water by turning the water off when they brush their teeth, (and by) not watering their lawns,” said TRPA President Tom Goynes earlier this month. “We’re doing everything we can to save the Edwards Aquifer and keep the springs flowing in San Marcos, and to keep our rivers flowing. And in the middle of all that, the state gives the water away — basically allows a water right where the developers can take water out of the river — water that should be conserved — and use it for water skiing and for a development so he can sell $400,000 lots. So, we think there is a disconnect here someplace. We can’t afford to give this water away for these kind of uses.”

SMRR’s permit originally authorized the holder to divert San Marcos River for agricultural purposes only. However, TCEQ granted an amendment to SMRR’s permit in 2007, thereby allowing the developer to use diverted river water for recreational, municipal and industrial uses. The permit — originally granted in 1980 — was amended via an administrative process that entailed no legal requirement for a public hearing on the issue, unlike the process for issuing new permits.

“(SMRR developer Gordon Hall) thought when the summer ended … that since the water restriction would cease at that time, that he could just start (pumping) as much as he needed to,” Said TCEQ South Texas Watermaster Al Segovia. “And I told him, ‘No. Because we’re still in a drought condition, you’re going to have to be put on a schedule just like everybody else is.’ And now we’ve been able to let him take a little bit more along with other people because it’s been raining a little bit and the flows have gone up.”

The Edwards Aquifer Authority (EAA), a state-created entity that manages groundwater use in the area, reported that recent rains have not ended the drought. EAA is enforcing Stage 1 drought restrictions, which requires groundwater permit holders in its jurisdiction to reduce their pumping from the aquifer by 20 percent from their authorized annual withdrawal amounts.

“At least for the last 24 months, rainfall has been well below average,” said EAA Communications and Public Affairs Assistant General Manager Roland Ruiz. “Across the region, we find ourselves in what you would consider kind of a rainfall deficit. And so it’ll take some time to make that up. It’ll take some time for aquifer levels to get back to that point where we could say we’re out of the critical period stage. I think probably the thing that works in our favor in terms of the rainfall is, we’re getting the rainfall during a period of time where demand for water is at its lowest.”

Also spurring protest were local media reports that TCEQ authorized SMRR to pump from the San Marcos River even if the river’s flow rate drops to 34 cfs at the Luling monitor. Such reports turned out to be erroneous, but they still motivated opposition.

“So, basically the river can be almost bone-dry and it will still be legal for him to pump,” said Goynes, who helped organize the September protest. “So, that finally got us mad enough to actually start protesting. And now we’re asking our members  and people everywhere to start writing their state senators and state reps, and we’re hoping to get the law changed. We need to change the way we handle these water rights transfers from one … use to another.”

After the protest, Segovia said SMRR’s access to San Marcos River water for filling lakes would “probably have been cut off way before” the river’s flow reached 34 cfs.

“That was a misunderstanding,” Segovia said. “What one of my staff members did, was a person had called in and asked if we have some kind of schedule for the diverters along the San Marcos River … The flow restrictions that were written into the (SMRR) permit ended as of Aug. 31 for the summer months, and there really aren’t any restrictions for the winter months written into the permit. And so our staff just came up with a rough outline of what we would want to have down as far as different water holders and their priority dates, and the amount of water they might be taking, coupled with the flow rates …

“We gave this gentleman the schedule,”Segovia continued, “and the next thing I know is, the last number that was on that schedule shows up on the news report, (which claimed) that we had mandated that they could be at 34 cfs — that you could pump until the river reached that point. Again, that (schedule) is just a tool we use. It’s not written anywhere on a permit or anything. We would look at flows way before that point to see if anybody would be allowed to take water. So, that’s just a number that happened to be on that spreadsheet. I wish the reporter had talked to me first before they kind of gave that to everybody.”

Though there are no state-mandated minimum river flow rates, a TCEQ water master has the discretion to limit a permit holder’s use of surface water after taking into account variables such as drought conditions, a permit’s priority date (older permits have seniority), river flow rate, “general conditions of the river,” the number of diverters, diverters’ individual pump rates, pumping rates at different times of the day and riparian rights (for people who own property along a river’s edge).

TCEQ spokesperson Andrea Morrow said SMRR had diverted 93.5 acre-feet of river water as of two weeks ago, when Segovia began allowing the developer to pump for 24 hours at 1,200 gallons per minute.

SMRF Executive Director Diane Wassenich joined Goynes in saying SMRR should not be allowed to pump any water from the river during a drought. Goynes and Wassenich also said they object to the lack of a legal prohibition against the diversion of unlimited amounts of river water for noncommercial uses by owners of riverfront property (holders of riparian rights).

“So we’ve got problems that are even worse than the (SMRR) ski lakes, though the ski lakes are serious enough,” Wassenich said. “Here we have these big lakes evaporating water like crazy in the heat, in a drought, and taking it out of the river to evaporate it.”

Morrow said holders of riparian rights can impound up to one 200 acre-foot reservoir of river water. An acre-foot of water is equivalent to 325,851 gallons.

“That’s an awful lot of water,” Segovia said. “I can’t lobby for anything, but all I can tell you is that there’s a lot of people (who) are upset that that number is so big. I mean, a couple acre-feet is probably plenty for most people. But I just have a lot of issues with people calling to voice their concerns about people taking so much water for lakes and ponds, and especially during a drought. But, again, even during a drought, I have no authority to stop (riparian right holders) from doing that.”

Morrow said another river-fed lake owned by Utopia River Ranch about three miles upstream from SMRR is 49 acre-feet and is exempt from permitting because it is being used for noncommercial purposes.

Segovia said the six deputies who constantly patrol the 50-county area of his jurisdiction are able to determine when someone is pulling an unusually large amount of water from rivers. Segovia said there are not “a whole bunch” of riparian rights holders pumping from rivers at any given time, and he said they do not seem to have a substantial affect on river flow rates.

“The (San Marcos) River Foundation has been involved, first, in a water right application, and then a lawsuit, to try to protect some minimum flow in the river,” Wassenich said. “But that went all the way through the court system. We won at district court, lost at the appeals court, and then the Texas Supreme Court refused to hear the case, so that case is, I guess, as far as it can go. So, now we’re involved in what is called the Bay Basin stakeholder process that was set up by Senate Bill 3 (a 2007 amendment to the Texas Water Code) a couple sessions ago.”

Wassenich was appointed to the stakeholder advisory group that will play a role in recommending an “environmental flow regime” to TCEQ commissioners. Wassenich said TCEQ may adopt a flow regime in two years, which may affect those wishing to divert river water.

As of early Thursday, EAA monitoring levels indicate that the authority could be soon to call an end to drought conditions. Stage 1 drought is declared when the ten-day averages for the J-17 monitoring well in San Antonio falls to 660 feet above sea level, when the flow at San Marcos Springs slows to 96 cfs or when the Comal Springs slow to 225 cfs. Early Thursday morning, the ten-day average for J-17 was 661.2 feet, for the San Marcos Springs was 129 cfs and for the Comal Springs was 249.9 cfs.