by SEAN BATURA
A group of San Marcos residents has formed to oppose some of the Edwards Aquifer Authority’s (EAA) recent enforcement actions in Hays County.
Coalition of Concerned Citizens Opposed to the Edwards Aquifer Authority (CCCEAA) said they formed after some of their number learned they had to buy water rights to pump from wells they had owned for years, while others joined the group after EAA ordered them to seal their unused wells without compensation.
Others involved with CCCEAA include landlords whose tenants draw water from a single well, and consequently do not meet the EAA’s “domestic use” exemption from annual pumping fees.
CCCEAA spokesman Jon Budd said he bought property in San Marcos 10 years ago that contained an abandoned well, which he opted to keep out of service in favor of city water. Budd said the EAA sent him a notice in November ordering him to commit to one of three actions within 30 days: bring the well into service, permanently seal the well (which can cost $5,000), or temporarily seal the well and incur costs including a $500 fine and a $125 annual inspection fee.
“They have a very active well abandonment program, yet they cannot produce one study showing those wells to be harmful to the aquifer,” Budd said.
The Texas Legislature created the EAA in 1993 in response to a federal court ruling issued the same year — the Sierra Club had sued the Secretary of the Interior and United States Fish and Wildlife Service (USFWS) for injunctive relief, citing failure to enforce the Endangered Species Act (ESA). Spring Lake and the San Marcos River sustain eight plant and animal species protected by the ESA.
“The EAA is more interested in making money than it is in protecting endangered species,” Budd said.
Budd said CCCEAA claims some 100-150 members, some of whom voiced their concerns at the March 2 San Marcos City Council meeting, which coincided with Texas Independence Day.
“We’re just trying to flush our toilets and take a shower, we’re not abusing the aquifer,” said San Marcos resident Rick White to city councilmembers. “Sam Houston and Steven F. Austin would be turning in their graves if they knew what was going on here in Texas.”
After being contacted by city officials, EAA District 11 Board Member Mark Taylor, who represents a portion of San Marcos, called Budd, who organized a meeting in an upstairs room at The Dive Shop on March 19. EAA District 10 Board Member Pat Stroka accompanied Taylor at the meeting, which was attended by more than 100 people.
White and his wife Cinda said they and six other property owners pump water from the same well for domestic use. However, their wells are not exempt from a $39-per-acre-foot annual fee because EAA considers multiple people on the same well the equivalent of a municipality under its current rules. The Whites said EAA is threatening them with fines and back payment requirements for not registering their well and for not paying the annual fee.
The Whites said they missed the deadlines set by EAA for registering wells and acquiring water rights because they never received a notice advising them of the requirements. After the deadlines passed, someone else acquired the water rights.
“And now we have to buy our rights from somebody that lives in San Antonio, Cibolo — whoever it was that signed that paper, wherever they live,” said Cinda White.
Taylor said he was not on EAA’s board in the run-up to the registration deadlines.
“If I would have been on the board at that time — and I wasn’t — I think I would have tried something different,” Taylor said.
Dec. 31, 1996, was the deadline for existing well owners to file “declarations of historical use” in order to secure an “initial regular permit,” and Dec. 31, 2005, was the deadline for registration of all wells — whether they needed a permit or not — under an “amnesty” program under which the EAA waived the well registration fee for wells registered by the deadline.
“Not only did a lot of people not know about the deadline, but some people I talked to knew about the deadline but thought they had an exempt use, and it turned out that they were wrong, the way the EAA wrote the rules,” Taylor said.
White said she asked an EAA staff member why she and her neighbors did not receive notice of the requirement. She said the staff member told her that sending out notifications would have been too expensive. EAA publicized the requirements via newspaper and radio.
A resident at the Dive Shop meeting suggested that a new deadline for obtaining permits and registering wells be set and accompanied by an ad campaign, to which the audience applauded.
“I support having a deadline for getting into compliance,” Taylor said. “And I think we might have a chance of getting that through the (EAA) permits committee and then through the board.”
EAA considers wells to be exempt from permitting and annual fees if they each serve one residence and pump less than 25,000 per day for domestic uses.
Someone from at least one of three families using the same well was in attendance to object to being subject to EAA’s annual fees.
“That would really just take a rule change to allow that situation to continue, and then that would be an exempt well serving three families,” said Taylor. “Right now, if its two property owners served by one well, then it’s not exempt. That’s something I’d like the board to reconsider.”
The owners of the Dive Shop, Don and Teresa Dibble, said they are facing EAA enforcement actions regarding a well they think should be exempt from permitting requirements and for which they missed their registration deadline.
“It’s just so wrong for me to be paying somebody in south Bexar County for my own water,” said Don Dibble.
Taylor said the Edwards Aquifer is the only aquifer in the state where people can purchase a water right from a buyer miles away. Taylor attributed the Edwards Aquifer’s uniqueness to its susceptibility to contamination. Water travels into and through the Edwards extremely quickly.
San Marcos resident Rita Samaniego told city councilmembers that EAA sent her letters ordering her to plug a well on her property that she said had not been used for more than a decade. Plugging a well can cost thousands of dollars, which Samaniego said she cannot afford because she is disabled and her only income is social security.
Samaniego told city councilmembers that she does not want to burden her children with the expense of sealing the well on her property. Samaniego said city officials told her no money is available to help her come into compliance. The EAA board created a an “abandoned well” fund in the current budget year to provide funding to plug wells, and the EAA staff is developing guidelines for use of the fund.
“This fund may allow for the EAA to pay for Ms. Samaniego’s well to be plugged,” Taylor said. “So I have asked the EAA staff to withhold further enforcement actions until the guidelines are developed. If the EAA fund covers the cost of plugging Ms. Samanieago’s well, it will not be a grant. Rather, she will be asked to consent to having a lien filed, and the plugging costs will need to be paid back either over time, or when her property changes ownership.”
EAA allocated $300,000 to the Abandoned Well Closure Fund this budget year. Taylor said EAA’s abandoned well rule should be changed to allow for wells to be capped rather than plugged, the latter of which is more expensive.
Jason Isaac of Dripping Springs, Republican candidate for the District 45 state representative seat, attended the standing-room-only meeting at the Dive Shop. Republican county judge candidate Bert Cobb of San Marcos made a brief appearance at the meeting, which lasted well into night. Also in attendance was Peggy Jones, defeated Republican primary candidate for county judge. Jones said EAA had unjustly fined her hundreds of dollars when she was a single mother facing a divorce lawsuit. Jones said EAA should give the money back.
“That was our grocery money, and I had to come up with it,” Jones said. “And it was a penalty for not filing my permit for the well that had been dug in 1985. It was a cased well. It was a clean well. I use anywhere between 4,000 and 5,000 gallons a month, and you might ask, ‘Ma’am, how do you know that?’ Because I was in the water business and I used to be metered, and I know that my water usage did not go up at all.”
Jones asked Taylor how EAA can require municipal use permits from non-exempt well owners if the Texas Commission on Environmental Quality (TCEQ) does not require them to have certificates of convenience and necessity (CCN), as required of licensed water operators.
“I would imagine that the TCEQ definition of municipal use requiring a CCN is different than the EAA definition of municipal use,” Taylor replied.
After the audience rumbled discontentedly, Taylor said he did not vote on the relevant rule.
At the meeting, Jones announced her candidacy for the EAA board seat occupied by Taylor. Days later, Jones said she found out another person affiliated with CCCEAA intends to run for the seat, so she will not file until she confers with the individual to avoid disrupting the group’s efforts.
“Filing for office will begin after the board calls for the election in July and the deadline will be in August,” Jones said. “Many things can happen between now and then, and I don’t want to commit either way until after the filing begins. I am leaning towards running.”
CCCEAA is circulating a petition promoting state regulation of the aquifer, yet stating that “proper management of the Edwards Aquifer water supply should not (be) limited to a single entity such as the Edwards Aquifer Authority, but should instead be a joint effort that actively includes the Citizens of Texas as well as Local, State, and Federal entities.”
The CCCEAA petition condemns “some aspects” of EAA’s regulatory practices such as “unfunded mandates” and expresses the concern that EAA is operating beyond the mandate set by the Texas Legislature. The petition calls on EAA to cease all enforcement actions pending a review of the its bylaws by representatives of CCCEAA, EAA and the Texas Legislature.
“The active well registration program enforcement thus far has been in Hays County,” Taylor said. “It’s about to go into Comal County, I understand, at the end of this year or early next year.”
EAA budgeted $13,894,320 in total revenue for 2010 and $13,087,157 in expenses. Forty-nine percent of expenses are devoted to staff salaries and benefits. EAA General Manager Karl Dreher’s salary is more than $180,000 per year. Thirty percent of EAA’s expenses are devoted to technical and professional services.
“They’re basically set up to be a profit organization to benefit their management and staff,” Budd said.
Taylor said Dreher is “extremely well-qualified” and was “a bargain.” Taylor said Dreher makes $15,000 less than the previous general manager, Velma Danielson.
Dreher, who began work as EAA’s general manager on March 15, is the former director of water resources for the State of Idaho. According to EAA, Dreher has more than 30 years experience in water resources management. EAA’s board selected him from among more than 150 applicants to succeed Danielson as general manager.
The EAA acquires 99 percent of its funding by charging aquifer management fees. The EAA added three new positions 2010: an engineer to assist in the development and administration of a recharge enhancement program, an environmental coordinator to implement the authority’s new rules regarding firefighting activities on the recharge zone, and a new compliance coordinator to help address the increased number of compliance matters.
The 2010 budget also includes about $1.9 million for funding expansion and renovation efforts to the EAA’s main building. The 2010 aquifer management fee for non-agricultural users increased by $2 for a total of $39 per acre-foot. The fee is assessed based on the total groundwater authorized to be used for the current year. Fees for agricultural users are charged on groundwater actually used during the preceding year. In 2001, the legislature amended the EAA Act to limit the agricultural fee rate to $2 per acre-foot.
Some attendees of the Dive Shop meeting said Bexar County has too many seats on EAA. The counties of Hays, Comal, Medina, Atascosa, Caldwell, and Uvalde have two seats each on the EAA board, compared with Bexar County’s seven seats.
San Antonio Water System (SAWS), a public utility owned by the City of San Antonio, is the largest single permit holder of Edwards Aquifer water. The Edwards Aquifer provides water to about 1.7 million people in Texas.
Taylor, whose seat is up for election in November, used to be the attorney for the City of San Marcos.
“We’re not sure that we don’t like you,” Teresa Dibble said to Taylor on March 19. “We’re not sure that we like you. Is that fair? We’re still trying to feel you out. But you’re not our main concern. There are seven people in Bexar County who are telling us what to do with our water rights when we need people who understand our way of life, who will represent our interests, and fairly.”
On April 5, Budd said CCCEAA is looking for new EAA board candidates to support in the general election and subsequent elections.
“We will absolutely not be supporting Mark Taylor,” Budd said. “We do not believe he is supportive of the well owners of the district he supposedly represents.”
Taylor did not indicate whether he would support making owners of single wells serving multiple tenants exempt from permitting and annual fees.
“I would support a rule change to expand the exemption for residential uses,” Taylor said. “I would want to await public input, and more information about the impact of drawing the line in different places (i.e., the broader the exemption, the more aquifer water that can be pumped over and above the statutory “cap” on permits) before deciding where the line should be drawn.
One attendee of the Dive Shop meeting expressed frustration at the EAA for sending him a letter advising him that he is prohibited from watering his grass or his wife’s flower bed, which the resident said are exempt uses.
“An exempt use means it’s used inside of the home or used to water a garden,” Taylor replied. “Use to keep St. Augustine grass going is not an exempt use.”
Another attendee of the Dive Shop meeting asked Taylor if he supports requiring permitting of — and, therefore, annual fees levied on — businesses that use wells for running toilets and other household-type uses.
“My belief is that small businesses should have permits,” Taylor replied.
Taylor asked his constituents to voice their concerns in-person at an EAA permits committee meeting. Taylor said the permits committee, which is composed of EAA board members, has thwarted his efforts at reforming some of EAA’s rules.
“It would definitely help if I had citizens there to show the real-life problems that the way the rules are written now cause,” Taylor said.
The EAA will hold a public hearing in San Marcos to solicit public comment on proposed rules relating to Chapter 709, Subchapter E “Administrative Fees” and Chapter 713, Subchapter D “Well Closures.” The public hearing will be at Dunbar Recreation Center at 6 p.m. on April 20. Budd said CCCEAA members will boycott the meeting and do not plan on holding a protest.
(Editor’s note: The above has been revised to show that the EAA’s public meeting at Dunbar Recreation Center in San Marcos will take place on April 20.)Email | Print