May 5th, 2010
Public pressure could force EAA fee change

State Representative Patrick Rose (pink shirt), discusses Edwards Aquifer Authority regulations with citizens at a recent meeting at the Dunbar Center. Photo by Sean Batura.

By SEAN BATURA
News Reporter

Responding to public unrest and calls from elected officials, the Edwards Aquifer Authority (EAA) may soon subject well owners to an abandoned-well regulation offering cheaper means of compliance with the current rule.

The EAA is proposing a rule change that would enable owners of abandoned wells to temporarily seal them and pay a yearly $120 administrative fee. The current rule requires owners of wells unused for six consecutive months to permanently plug them or buy water rights, either of which generally costs thousands of dollars.

“It is offensive to me and to my constituents in this room, that we’re going to have to pay for the ‘benefit’ of not being able to use the water that’s under the ground,” State Representative Patrick Rose (D-San Marcos) told EAA officials at a public meeting on April 20 in San Marcos. “We understand that you have to monitor. I would submit this: that there is the money available in your budget to be able to monitor adequately those wells without putting a fee on those individuals.”

Rose’s comments received some applause from the standing room only crowd at the Dunbar Center, where EAA held a meeting to solicit public comment regarding the proposed abandoned well rule change. Interested members of the public have until May 10 to comment on the proposed rule change. Most attendees who commented verbally about the proposed rule change opposed the $120 annual fee for capping wells. The EAA was also taking written comments at the meeting.

Some of those who voiced their concerns had formed a group called Coalition of Concerned Citizens Opposing the Edwards Aquifer Authority (CCCEAA). CCCEAA is circulating a petition proposing that the management of the Edwards Aquifer water supply should be “a joint effort that actively includes the Citizens of Texas as well as Local, State, and Federal entities,” rather than a single entity like the EAA.

According to the EAA, the proposed $120 administrative fee is intended to cover the estimated average cost of inspecting a well each year it remains capped. At the April 20 meeting, more than one opponent of the administrative fee and other provisions of the abandoned well rule objected to it on the grounds that it seems to discourage compliance with the law. Other than owners revealing their abandoned wells to EAA, the EAA uses satellite imagery to find wells, and also finds out about them through its inspectors in the field, who are often on the lookout.

At the April 20 meeting, EAA General Manager Karl Dreher indicated that his organization would reexamine the criteria by which it designates water uses that exempt wells from permitting. Wells are exempt from permitting if they each serve one residence and pump less than 25,000 per day for “domestic uses.” Permitting a well costs a $25 application fee and the annual payment of aquifer management fees, which vary depending on how much groundwater water is withdrawn.

Using water from an otherwise exempt well to nourish trees and flowers are uses well owners have received mixed signals about from the EAA in the past two months. Some currently non-exempt uses include car washing and watering grass.

“There’s some ambiguity, and we are going to review the rules that are implementing this statute, including the issue of watering grass,” Dreher said.

Owners of wells exempt from permitting are required to register them, which costs $10, though anyone who did not register by Dec. 31, 2005, may be subject to fines, back-payments, and other requirements. The EAA did not attempt to contact well owners in Hays County directly to inform them of the need to register.

Well owners have frequently requested at recent public meetings that the registration period be re-opened. EAA officials, most of whom were not present during the initial Dec. 31, 1996, deadline for existing well owners to file “declarations of historical use,” said they did as much as they could within their budget to advertise the registration requirement via radio, television and newspapers.

“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 on March 19.

“I never was told this was all going to happen,” said Teresa Slack of San Marcos at the April 20 meeting. “I bought my house in ’86, and these people come along. And somebody bought the water rights.”

Slack said she missed the deadlines set by EAA for registering wells and acquiring water rights because she never received a notice advising her the well needed to be registered. Slack and her son said the well was registered before she bought the house.

“But, evidently, that wasn’t the right registration,” Slack said. “Nobody ever told us.”

Slack, a San Marcos resident who is elderly, disabled, and on a fixed income, said EAA wants to put a meter on her abandoned well for one year to determine her water usage, and then charge her back fees to 1995, which she said may cost $10,000. Slack said she does not have the money to pay the back frees, and after she described her situation, Rose offered her his card and said his office would see what it can do for her.

San Marcos resident Rita Samaniego, also disabled and on a fixed income, went to a March 2 San Marcos City Council meeting to ask for help with her abandoned well. EAA District 11 Board Member Mark Taylor, who represents a portion of San Marcos, said he asked EAA staff to hold off on enforcement actions against Samaniego pending a review of guidelines for use of the “abandoned well fund.” Should Samaniego qualify for aid from the fund, she would have to pay plugging costs and consent to having a lien filed. If the new rule is passed, she would only have to cap the well.

San Marcos River Foundation Executive Director Dianne Wassenich attended the April 20 meeting and voiced her organization’s support for the proposed abandoned well rule change. Wassenich said abandoned wells are often encompassed by sheds that become repositories for household and lawn care-related chemicals, which, she said, can leak into the wells, harming endangered species and human beings. Rusted, deteriorating wells, said Wassenich, can contribute to the pollution of groundwater, which makes capping abandoned wells and diligent inspections of them by EAA “extremely critical.” Wassenich said the $120 annual, administrative fee is reasonable.

“There are many other ways that we can protect the (Edwards) Aquifer besides protect these individual wells,” Wassenich said. “But because these individual wells are holes directly to the aquifer, they are one of the first things we need to do. The next thing we need to is look at impervious cover and development over the aquifer recharge zone.”

Other topics of concern raised by Hays County residents at the April 20 meeting included EAA policies regarding well registration requirements and water rights purchases.

Rose sent a letter to EAA thanking it for being willing to mandate capping of abandoned wells rather than plugging, and applauded its board and staff for wanting to make capping wells cheaper. Rose, in his letter, advocates expanding the exemptions for residential wells and establishing new deadlines for bringing wells into compliance, in addition to opposing the annual administrative fee for capped wells.

Rose wrote that he is concerned Hays County is under-represented on EAA’s board. The counties of Hays, Comal, Medina, Atascosa, Caldwell, and Uvalde have two seats each on EAA’s elected board, compared with Bexar County’s seven seats.

“As such, I will file legislation next session to increase our region’s representation on the board,” Rose’s letter states.

EAA’s current offer to change its rules is not the first time the entity has offered to do so after public pressure. In February 2009, under pressure from Rose and some well owners, the EAA board voted to allow people involved in pending compliance matters relating to unauthorized withdrawals from unpermitted wells to transfer groundwater withdrawal permits of no less than .25 acre-feet per year and no more than three acre-feet per year from west of Cibolo Creek to east of the creek.

EAA’s rules generally prohibit water rights transfers from west of Cibolo Creek, which is the geographic feature between Bexar County and Comal and Hays Counties. Flowpath studies conducted by Austin-based LBG-Guyton Associates in 2006 and 2008 concluded that pumping east of Cibolo Creek adversely affects springflow at the Comal and San Marcos Springs.

“The rising cost of water east of Cibolo Creek was just going to be an exorbitant amount for them,” EAA spokesperson Roland Ruiz said. “And so that rule change was intended to ease the financial burden on them …They’re largely Hays County folks.”

Ruiz said EAA officials had “numerous discussions” with Rose leading up to the Cibolo Creek transfers rule change. Ruiz said both Taylor and EAA District 10 board member Pat Stroka, who represents a portion of Hays County, played an important role in getting the rule change. Taylor, who used to be the attorney for the City of San Marcos, abstained from the actual vote on the Cibolo Creek transfers rule change to avoid the appearance of conflict of interest. Taylor was then representing individuals with a financial interest in transferring water rights across Cibolo Creek.

Taylor, whose seat is up for election in November, said Monday that he has not decided whether to seek re-election. If Taylor runs, he will face San Marcos resident and former Hays County Judge Republican primary candidate Peggy Jones.

“I think with my background as a water operator, and land management background, I think I can bring better balance between the stakeholders and the focus and the mission of the EAA,” Jones said on April 19.

Jones said abandoned wells should be capped to avoid contaminating the aquifer. Jones said one of her first tasks, if elected, would be to try easing the regulatory fees and other rules, such as the well-capping fees, well monitoring fees, and the penalties for missing the well registration deadline.

EAA officials can legally inspect wells without obtaining the owner’s consent, though EAA officials said their policy is to obtain permission first. Some residents at the April 20 public meeting spoke of rude EAA inspectors, while at least one member of the public, an elderly woman who alone clapped after Wassenich’s comments, strongly disagreed, and said EAA staff are courteous.

“The field folks — they all work in my section — they are all the nicest, most conscientious people, and I don’t believe they are ever rude to anybody, unless someone gets in their face and threatens them, you know, with a physical act,” said EAA Assistant General Manager John Hoyt. “We’ll revisit our methods of trying to notify people before we even drive in the driveway. We try to be efficient and respectful, and we’ll continue that, and we’re always looking into ways to refine our process.”