San Marcos Mercury | Local News from San Marcos and Hays County, Texas

December 20th, 2010
TCEQ drops three-county groundwater proposal

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Administrative Law Judge Paul Keeper, left, and Hays Trinity Groundwater Conservation District President Jimmy Skipton, right, at a preliminary hearing. Photos by Sean Batura.

By SEAN BATURA
News Reporter

The executive director of the Texas Commission on Environmental Quality (TCEQ) has backed off a recommendation that the Hays Trinity Groundwater Conservation District (HTGCD) be incorporated into a three-county district, at least temporarily relieving HTGCD directors who have opposed the proposal.

In a July report to his agency’s commission, TCEQ Executive Director Mark R. Vickery proposed that the HTGCD be dissolved and its former boundaries be incorporated in a new district with jurisdiction over western Comal County, southwestern Travis County, and western Hays County.

“As long as I’m there, I will fight that as hard as I can,” said HTGCD President Jimmy Skipton to Hays County commissioners on Oct. 26.

In September, HTGCD’s board, by a 4-0 vote, passed a resolution opposing Vickery’s recommendation. However, commissioners courts in Travis, Comal, and Hays Counties have passed resolutions in support of Vickery’s recommendation.

In the face of HTGCD’s opposition, Vickery backed off from his recommendation this month, though he reiterated his view that a three-county district would best serve the public good. Vickery’s change of mind does not eliminate the possibility that the Texas Legislature will create the three-county district he originally proposed.

In May 2003, Western Hays County residents voted 1,702-883 to create HTGCD, a district with the least funding and regulatory powers of all groundwater conservation districts (GCDs) in the Hill Country Priority Groundwater Management Area (PGMA).

Unlike most of other GCDs in the Hill Country PGMA, HTGCD cannot charge well production fees and collect property taxes. The only way the district funds its operations is through new well construction fees and one-time utility connection fees, both of which are capped at $300. The district’s enabling legislation prohibits it from regulating, permitting, or metering domestic, single family wells that produce less than 25,000 gallons of water per day, thereby exempting from regulation about half the water drawn from the Trinity Aquifer.

Jacob’s Well, which feeds Cypress Creek and the Blanco River, flat-lined during summer 2009, the last low rainfall period. According to former HTGCD General Manager Dana Carmean, who quit abruptly after a conservative majority board took office in the spring, 43 wells were reported dry during in summer 2009.

“However, we had reports from the major water supply companies that they were hauling water to a couple hundred customers who did not have water in their wells or rainwater collection tanks,” Carmean said.

HTGCD asked Hays County for $182,000 for fiscal year (FY) 2011. Commissioners instead approved $125,000. Commissioners allocated $100,000 to HTGCD in FY 2010 after giving $75,000 to the district in 2009.

Virtually everyone on either side of the debate agree HTGCD should not be dependent on the county for funding. Skipton said he supports more funding and regulatory authority for the district — just not as much as the previous board — and he is one of many stakeholders involved in a consensus-based process to create a piece of legislation that may solve the district’s financial woes. The stakeholder process would be rendered moot if legislators support the three-county GCD and dissolve HTGCD.

Hays County Precinct 3 Commissioner Will Conley (R-Wimberley), who cast the lone vote against the three-county GCD on the Hays County court, is involved in the aforementioned stakeholder process. State Senator Jeff Wentworth (R-San Antonio) and State Representative Patrick Rose (D-San Marcos) initiated the stakeholder process in the spring. The effort is being directed by Andrew Sansom, executive director of the Texas State University River Systems Institute.

Conley said Vickery’s three-county GCD recommendation is not politically feasible because western Comal County voters have already indicated their opposition. Conley said there are political obstacles in southwestern Travis County, as well.

“Nor does it make sense, from a scientific standpoint, for the interest of most of western Hays County,” Conley said. “Most of our recharge and most of the impacts on the Hays Trinity Aquifer seem to predominantly be coming from the Blanco County area, and very little is known, if anything at all, about the impact and the connectivity of western Comal County, and particularly southwestern Travis County.”

Western Comal County voters twice defeated attempts to create a GCD, and no formal efforts to establish a GCD in southwestern Travis County have succeeded.

A previous incarnation of HTGCD’s board supported the three-county GCD idea. However, the political composition of the board changed with elections in the spring. Skipton said he won election based in large part on his vocal opposition to the three-county GCD option and to more regulation and taxes.

Vickery now supports a secondary recommendation outlined in his July report. According to the secondary recommendation — now Vickery’s primary recommendation — western Comal County should be added to the Trinity Glen Rose GCD and southwestern Travis territory should be included in the Barton Springs/Edwards Aquifer Conservation District. However, TCEQ commissioners may still adopt the July report’s primary recommendation and create the three-county GCD, after hearing arguments from Vickery and Administrative Law Judge (ALJ) Paul Keeper.

Pursuant to Texas law, an ALJ with the State Office of Administrative Hearings (SOAH) must hear arguments from those affected by the recommendations contained in Vickery’s July report, and then make his own recommendation to TCEQ commissioners. A second preliminary SOAH hearing on the matter has yet to be scheduled. The first preliminary hearing occurred in October, though Vickery made a motion for a new preliminary hearing, which Keeper granted on Dec. 15. Vickery said he requested the new hearing because the TCEQ chief clerk mistakenly neglected to send notice of the first hearing to stakeholders in western Comal and southwestern Travis Counties.

In his Dec. 15 order, Keeper said he will consider challenges to party status at the second preliminary hearing.

Entities granted standing in the aforementioned SOAH case include, among others, Hays County, Travis County, Comal County, the Greater Edwards Aquifer Alliance, the League of Women Voters, HTGCD, Citizens Alliance for Responsible Development, Wimberley Water Supply Corporation, Dripping Springs Water Supply Corporation, Aqua Texas, and the Wimberley Valley Watershed Association.

Among the numerous individuals granted party status are Skipton, his wife, Hays County Judge Liz Sumter (D-Wimberley), William Davis, Lenee Lovejoy, W.F. “Dubb” Smith, and Sam Brannon. The aforementioned people have been vocal at recent commissioners court meetings regarding matters pertaining to county spending, property rights and groundwater.

Those eligible for standing include people and entities who can satisfactorily demonstrate to Keeper that they are affected by Vickery’s recommendations. Typically, an affected person is one who owns property in the Hill Country PGMA or resides there.

“Because the San Marcos area is not part of the proposed district, I want to comment on that and the problems we have with people drilling down to the Trinity (Aquifer) here in San Marcos,” said San Marcos River Foundation Executive Director Dianne Wassenich to Keeper on Oct. 28. “We’re extremely concerned about the (SOAH) hearing that is going on, because there is a very strong connection between the springs that flow from the Trinity Aquifer down the Blanco River, into the recharge zone of the Edwards Aquifer, which supplies our springs with the water here in San Marcos at the San Marcos Springs. So, what happens to the Trinity is critical to those of us who live here.”

Keeper will issue his recommendation to TCEQ commissioners in June. The commissioners will then determine a course of action, and if they opt to adopt Vickery’s first recommendation, the Texas Legislature may be more likely to dissolve HTGCD and create the three-county GCD during its 2013 session.

Vickery recommended a property tax rate for the three-county GCD of at least $0.002 per $100 of taxable valuation. Vickery said well production fees alone would be insufficient to fund the GCD. The three-county GCD could not collect property taxes without the approval of voters in its jurisdiction. Vickery recommended that the three-county GCD be governed by a five-member elected board. He proposed two members for Hays County, one for Travis County, and two for Comal County.

State law requires the TCEQ to insure all PGMAs have GCDs, hence the agency’s current efforts. The law allows landowners in a PGMA to either 1) create one or more GCDs 2) have their area annexed to a GCD that adjoins the PGMA, or 3) create one or more GCDs through the state legislative process.

Should local efforts to create GCDs in the PGMAs fail, state law requires the TCEQ to 1) create one or more new GCDs in PGMA areas not already within GCDs, and/or 2) to recommend that such areas, or a portion of the regions, be added to an existing district.

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3 thoughts on “TCEQ drops three-county groundwater proposal

  1. TCEQ dropped this only after being challenged at the preliminary hearing. In particular, their proposal was flawed for fundamentally trying to create another district overlaying an existing district. Two governmental entities may not exist at the same time over the same territory for the same purpose. This is a fundamental principle of Texas constitutional law. One party raised this issue at the preliminary hearing and submitted a written memorandum in support of that proposition to the administrative law judge (ALJ). The judge refused to render a decision on the motion or even to mention it in his Order. However, TCEQ recognized that it had a serious problem and chose to no longer actively pursue this option although it encouraged the ALJ to consider it as a possibility (despite the constitutional prohibition). TCEQ did not just “drop” this, they actually tried to ram it down citizens’ throats and only backed down when confronted with the case law and recognized that they would be in protracted litigation with no chance of success if they maintained their ill-advised course of action. Thus the original motion to dismiss with respect to certain options under the final report was successful even if indirectly so.

    Since that time, another challenge has been raised regarding TCEQ’s standing to continue this proceeding in its entirety. At least this time, the ALJ has indicated that he will make a ruling on the motion. The movant challenged TCEQ’s standing to bring this action 18 years after the two year limit set forth under Chapter 35 of the Water Code. TCEQ has replied that it is not relying upon Chapter 35 for authority but rather its own rules. However, rules must be based upon some statutory authority which by statute (Texas Water Code §5.103) must be specifically identified in the rule. The rule (30 Texas Administrative Code §293.19) makes no reference to any statutory authority as required by law. Under Texas Water Code §5.103 such a rule is void (not merely voidable but VOID). Given that TCEQ has admitted that they have no authority under Chapter 35 and are now relying upon their own rule which appears to be VOID by statute, parties look forward to the ALJ’s ruling on the motion to dismiss. The ALJ has indicated will make a decision after January 5, 2011.

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  3. A motion to Dismiss was filed and TCEQ responded by agreeing in part with the Motion that the TCEQ has no statutory authority to proceed with this contested case. Also contended is that TAC Rule 293.19b is voided by statute (TWC 5.103d), a Rule that the TCEQ is solely relying upon now. TCEQ responded to the Motion to Dismiss on Dec. 27, 2010 and a Reply to the TCEQ’s REpsonse was filed on Dec. 28, 2010. However the Judge rule that Mr. Maurer supplied no additional info (the Judge failed to even acknowlege receipt of Mr. Maurer’s Reply… thus the Judge erred in his decisio9n to Deny the Motion to Dismiss. A Motion to Reconsider has been filed in mid January, 2011. Yet a 2nd prelimenary hearing appears to have been scheduled for April 2011, yet the Judge has failed to rule of the Motion to Reconsider. People have to follow the laws of this state, but it appears that governmantal agencies of this state can have utter disrespect for the laws of which they must follow. The SOAH may per se have a judge… but the SOAH is merely a kangaroo court for the State Agency that brings a case before the SOAH… as the State Agency can OVERRULE the SOAH Judge’s decision.

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