Ridenbaugh Press/Water Rights

In January of 2013, two boys exploring the construction site of a new residential development near Hwy. 281 and Loop 1604 discovered a 450-foot long cave that experts say may be the 5th largest in Bexar county. With large stalactites and numerous other types of formations, it rivals the natural beauty of show caves in the area like Natural Bridge Caverns. It was named Rock Dove Cave.

Aquifer advocates became alarmed after obtaining pictures of what they said was a large new sewer line transecting the roof of the cave. They claimed it would eventually leak, releasing raw sewage into the Edwards Aquifer. While the route of the new sewer line on plan drawings did indeed pass through the cave, the developer said it had already revised plans for sewer line to miss the cave and the pipe had only been put there to block an entrance and keep people out.

On March 14, in a letter to the Texas Commission on Environmental Quality, the Greater Edwards Aquifer Alliance asked the developer be required to remove all existing fill material and pipes. GEAA recommended the cave be thoroughly mapped by experienced geologists, and that sewer lines and trenching be moved to avoid the cave (see the GEAA letter).

As the site is outside the city limits, none of San Antonio’s aquifer protection ordinances apply, and the city can only comment on any remedies that might be proposed or approved by the TCEQ.

A Habitat Conservation Plan covering the Edwards Aquifer will be granted approval by the US Fish and Wildlife Service, bringing unprecedented assurance to the region’s ability to maintain local control over its most valued water resource. The US Fish and Wildlife Service today announced it has published its Record of Decision regarding its intent to approve the Edwards Aquifer Habitat Conservation Plan and issue the Incidental Take Permit in the Federal Register.

According to federal process, the ITP will be “issued” to the Edwards Aquifer Authority and its co-applicants — the City of San Marcos, the City of New Braunfels, the San Antonio Water System, and Texas State University — 30 days from the date of publication in the register. This historic achievement brings resolution to the decades-old conflict between the region’s use of the aquifer and the species protection required by the Endangered Species Act.

“Approval of the EAHCP is a momentous achievement for the entire Edwards region,” said Luana Buckner, chair of the EAA board of directors. “We finally have an answer to Judge Bunton’s decree of 20 years ago that told us to address the endangered species issue or else the federal courts would. Having a plan in place to ensure protection for the species means we now have greater assurance in our right to use the Edwards Aquifer as a water resource.”

State Rep. Doug Miller, Dist. 73, said, “Sustainable water resources are critical to the future of our state, and certainly no natural resource is as critical to a region as the Edwards is to greater south central Texas.” The former chairman of the EAA board of directors added, “I am particularly proud of the region for coming together to develop this plan. It validates that we are fully capable as Texans of managing our natural resources in a responsible way rather than having the federal government dictate to us. It also benefits protected species and preserves the economic well-being and sustainability of our diverse communities who depend on the aquifer.”

State Sen. Glenn Hegar, Dist. 18, added, “The value of this HCP has been in the consensus process that built agreement where there once was disagreement. By providing coverage to all user groups including residential, municipal, recreational, and agriculture users, this HCP gives us broad economic certainty across the region, which will serve us well as we continue to work toward firming up our water supplies for the future.” Hegar authored legislation in 2007 that amended the EAA Act to include the Edwards Aquifer Recovery Implementation Program (EARIP) process that led to the development of an HCP.

The EAHCP is a plan built on region-wide consensus by over 39 stakeholder groups that participated in the EARIP. Five-plus years in the making, the EAHCP is designed to protect various species that are listed as threatened or endangered under the Federal Endangered Species Act and whose only known habitats are the aquifer-fed Comal and San Marcos springs.

The ITP protects the users of the Edwards Aquifer and associated spring systems from liability in the event incidental harm comes to the threatened or endangered species protected by the Endangered Species Act caused by use of the aquifer and spring systems. For more information regarding the EAHCP visit EAHCP.org.

The Edwards Aquifer Authority 2013 budget will fully fund the first-year implementation of a habitat conservation plan, but will not require an increase in user fees. The EAA Board of Directors, at its regular monthly meeting on Tuesday, adopted a $33.5 million budget that includes a $13.1 million general operating fund and a $20.4 million habitat conservation plan fund supported by an overall aquifer management fee rate of $84 per acre foot of Edwards groundwater authorized for municipal and industrial users.

The $84 aquifer management fee rate for municipal and industrial users is unchanged from 2012. The $2 rate for agricultural use is set in statute (EAA Act) and also remains unchanged for 2013. The $84 fee rate is made up of a $47 per-acre-foot rate to fund the general operating fund and a $37 per-acre-foot rate to fund implementation of a habitat conservation plan that is currently pending approval from the U.S. Fish and Wildlife Service.

In other action, the board approved various changes to its rules. Changes made to existing water quality protection rules are intended to minimize non-point source pollution risks to the aquifer by clarifying and adjusting how the EAA regulates the storage of regulated substances on the recharge zone and specific portions of the contributing zone. More specifically, the rule changes include a provision that allows new aboveground storage tanks on the recharge zone, but only with the incorporation of acceptable tertiary containment measures. The rule changes also include a ban on the use of coal tar pavement sealant products on the recharge zone within Comal and Hays counties as a means to further protect aquatic life in the two major aquifer-fed springs ecosystems.

Other rule changes include the creation of one uniform annual deadline for the transferring of groundwater rights, and the addition of new requirements for permitted wells aimed at enhancing the accuracy of reported groundwater use. The updated rules take effect November 23, which is 10 days from the date of their adoption.

The Edwards Aquifer Authority on August 30 announced it has lifted Stage IV mandatory pumping reductions for Edwards Aquifer users within the Uvalde Pool (Uvalde County) effective retroactively to August 28. The Uvalde Pool had previously entered Stage IV on June 22 due to declining aquifer level readings at the J-27 Index Well in Uvalde.

The EAA was able to lift Stage IV and return the Uvalde Pool to the less restrictive Stage III based on the 10-day rolling average water level at the index well rising to above 842 feet above mean sea level. The last time a water level was recorded below 842 feet at the J-27 index well, which is the Stage IV threshold, was 1958, long before the existence of the EAA and its critical period management plan. While Stage IV required Edwards groundwater permit holders to reduce pumping by 35 percent off their authorized amounts, Stage III requires a 20 percent reduction.

The Uvalde Pool started this year in Stage II, having been in that stage since June 27, 2011, and had been under Stage III restrictions since May 10th of this year, prior to Stage IV. Meanwhile, the San Antonio Pool remains under Stage III limits.

The intent behind mandatory pumping reductions is to help stabilize aquifer levels and spring discharge rates until sufficient rain returns to the area to replenish the aquifer. Stage III reductions apply to all Edwards groundwater permit holders in Uvalde County who are authorized to pump more than three acre-feet annually. Just as with Stage IV, Stage III requires all affected permit holders to report their pumping totals to the EAA on a monthly basis.

In the Edwards Aquifer Authority and The State of Texas v. Burrell Day and Joel McDaniel, the Texas Supreme Court ruled against some forms of water regulation and may have opened the spigot to a string of new water-related lawsuits.

The decision concluded, “We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does. We affirm the judgment of the court of appeals and remand the case to the district court for further proceedings.”

The case concerning Day and McDaniel concerns their farm land atop the Edwards Aquifer.

“To continue to use the well, or to drill a replacement as planned, Day needed a permit from
the Edwards Aquifer Authority. The Authority had been created by the Edwards Aquifer Authority
Act in 1993, the year before Day bought the property. The Edwards Aquifer is “the primary source of water for south central Texas and therefore vital to the residents, industry, and ecology of the region, the State’s economy, and the public welfare. The Legislature determined that the Authority was “required for the effective control of the resource to protect terrestrial and aquatic life, domestic and municipal water supplies, the operation of existing
industries, and the economic development of the state.”
“The Act “prohibits withdrawals of water from the aquifer without a permit issued by the
Authority”. The only permanent exception is for wells producing less than 25,000 gallons per day for domestic or livestock use. The Act gives preference to “existing user[s]” — defined as person who “withdr[ew] and beneficially used underground water from the aquifer on or before June 1, 1993” — and their successors and principals. With few exceptions, water may not be withdrawn from the aquifer through wells drilled after June 1, 1993.”

Day made a filing to pursue a well; after an extended period, the authority did not act. “Although the Authority cautioned that it still had not acted on the application, Day proceeded to drill the replacement well at a cost of $95,000. In November 2000, the Authority notified Day that, “[b]ased on the information available,” his application would be denied because “withdrawals [from the well during the historical period] were not placed to a beneficial use”. Day protested the Authority’s decision, and the matter was transferred to the State Office of Administrative Hearings for hearing.”

The result was a split decision on the merits of the case, though it meant some shift of legal ground for the authority: “We begin by considering whether, under the EAAA, the Authority erred in limiting Day’s IRP to 14 acre-feet and conclude that it did not. Next, we turn to whether Day has a constitutionally protected interest in the groundwater beneath his property and conclude that he does. We then consider whether the Authority’s denial of an IRP in the amount Day requested constitutes a taking and conclude that the issue must be remanded to the trial court for further proceedings. We end with Day’s other constitutional arguments, concluding that they are without merit.”

Luana Buckner, chair of the Edwards Aquifer Authority Board of Directors, responded to the decision, “At this time, we are reviewing the Supreme Court’s opinion in detail to further ascertain the implications it may or may not have for the continued effective management and protection of the Edwards Aquifer and the economic interests of those who rely on it as their water source. It is important to note that the Supreme Court’s opinion affirms that procedurally the Edwards Aquifer Authority appropriately carried out its responsibilities to the letter of the law as prescribed by the Edwards Aquifer Authority Act. However, the opinion leaves unresolved the question of whether properly following the EAA Act and granting the plaintiffs’ permit in accordance with the Act has resulted in a compensable taking of property as defined by the Texas Constitution and remands that issue to the trial court for further proceedings. We will await further legal review of the opinion before commenting further.”

The Edwards Aquifer Authority Board of Directors approved a funding and management agreement on December 28 that details how the EAA, with participation from the City of New Braunfels, the City of San Marcos, the City of San Antonio through the San Antonio Water System, and Texas State University in San Marcos, will pay for implementing a habitat conservation plan aimed at protecting threatened and endangered species whose only known habitats are the aquifer-fed Comal and San Marcos springs.

The HCP, which was developed over the past four-and-a-half years by a stakeholder group known as the Edwards Aquifer Recovery Implementation Program (EARIP), was approved by the EAA board earlier this month.

Approval of the funding and management agreement clears the way for the EAA and the other co-applicants to file the HCP and supporting documents with the U.S. Fish and Wildlife Service (USFWS) along with an application for an incidental take permit under the Endangered Species Act. If the USFWS approves the HCP and issues an incidental take permit, it would bring resolution to the decades-old conflict between the federal mandate to protect threatened and endangered species associated with the Edwards Aquifer and the region’s dependence on the same aquifer as its primary water resource. Implementation of the approved HCP will help protect the region from litigation under the Endangered Species Act and will bring unprecedented certainty to Edwards groundwater rights for as long as the HCP is in effect.

The Edwards Aquifer Authority, for the first time in its history, has declared Stage II of its critical period management plan for Edwards groundwater users in Uvalde County, based on a continued decline in aquifer levels resulting from drought. Stage II for Uvalde County means a 5 percent reduction in pumping for Edwards groundwater permit holders who are authorized to withdraw more than three acre-feet annually. The intent behind the mandatory pumping reductions is to help stabilize aquifer and spring discharge levels until rain returns to the area and replenishes the aquifer.

The Stage II requirements apply to municipal, irrigation, and industrial Edwards permit holders within the Uvalde Pool of the Authority’s jurisdictional boundaries, which consists of Uvalde County in its entirety. Irrigators, however, who file a notice of intent to finish out a crop in accordance with Authority rules, are exempt from the critical period reductions until that crop is completed. Irrigators also may file a notice of intent to plant an additional crop during critical period, but watering of those crops will be subject to the pumping reductions. Stage II also requires all affected permit holders to report their pumping totals to the Authority on a monthly basis.

On June 27, the 10-day rolling average of water level at the J-27 Index Well in Uvalde County dropped below the Stage II threshold of 850 feet above mean sea level (msl), thereby prompting Stage II. Declining aquifer levels are the result of a drought that has been exacerbated by rising temperatures and seasonal demand for water.

Stage II for Uvalde County will remain in effect as long as the J-27 Index Well level remains below Stage II, but above the Stage III trigger level. The San Antonio Pool, consisting of Bexar and Medina, and parts of Atascosa, Caldwell, Comal, Guadalupe and Hays counties, has been under critical period restrictions since April 18.

Residents and businesses who receive their water from a public water system are encouraged to contact their water provider directly to find out how Stage II reductions may affect them. Private well owners should comply with water restrictions in effect for the municipality closest to them.

More information on Stage II requirements is available by calling the Authority’s critical period team at (866) 931-3239 or by visiting the Authority’s website at www.edwardsaquifer.org. The Edwards Aquifer Authority manages, enhances, and protects the Edwards Aquifer, one of the major groundwater systems in Texas serving approximately 2 million people.

New rules adopted by the Edwards Aquifer Authority Board of Directors at its monthly meeting May 10 simplify the process for well owners to properly cap (or temporarily close) wells when they’re not in use. The new rules eliminate the current requirement that a well owner acquire at least a half-acre foot of Edwards groundwater rights for a well when capping it.

By simplifying the well capping process, the Authority believes well owners will be more likely to properly close their wells when not in use rather than leaving them open and susceptible to pollution risks. The changes to the rules also set a well inspection fee and clarify the criteria for determining when a well is considered “abandoned.”

Well capping is the practice of temporarily sealing the top of the well casing until such time that the well is put back into service or permanently closed. Both practices, temporarily capping or permanently closing, are performed to prevent the infiltration of pollutants into the aquifer through unattended wells.

Other rules changes approved by the board include a clarification to the eligibility requirements for granting applications to convert base irrigation groundwater to unrestricted use based on changes in land use and the installation of conservation equipment. The rules take effect on May 20, 10 days from the date of their adoption. The revised rules, in their entirety, can be viewed online at www.edwardsaquifer.org.

The Edwards Aquifer Authority in cooperation with Bexar Metropolitan Water District and local well owners conducted a tracer test beginning March 11, in which non-toxic dye will be injected into the aquifer to investigate groundwater flow paths in northern Bexar County near Lorence Creek. Dye will be injected into two locations in the Hollywood Park area and then monitored and recovered over several days and weeks in wells near Lorence Creek and Highway 281.

Dye tracing enables scientists to trace the direction and velocity of groundwater as it travels through segments of the aquifer. The dyes used in this testing are safe for human consumption, and are not likely to be observable in local water supplies. The results of this tracer test will help to characterize groundwater conditions in the area east of Panther Springs Creek where the Authority has previously completed other tracer tests.

The Authority conducts tracer tests as part of its ongoing region-wide study of the Edwards Aquifer. Such studies continually improve the general understanding of the aquifer system and how to best manage and protect it as a water resource and for the associated habitats of federally listed aquatic species.

The Edwards Aquifer Authority Board of Directors, at its meeting October 12, took a step toward strengthening protection of the aquifer from contamination. The board voted to approve the basic framework of a comprehensive water quality protection program that would include measures to reduce the risks associated with storm-water running off urbanized lands across the aquifer’s most environmentally sensitive area — the recharge zone.

More specifically, the board’s action directs staff to develop concepts for rules that would require the implementation and maintenance of certain best management practices to mitigate the adverse effects of storm-water runoff into the aquifer. As proposed, the regulatory program would apply to those portions of the recharge zone and contributing zone that are within the Authority’s jurisdictional area. The board could consider proposing rules for public comment in early 2011.

The recharge zone is particularly susceptible to pollution because it is the area where the aquifer is exposed at the land surface and where cracks, sinkholes and caves in the limestone serve as direct conduits to the aquifer below. Across the recharge zone, much of the water that enters the aquifer does so by way of storm-water that runs off the land and into openings that can send water directly into the aquifer without the benefit of any filtration.

The Authority’s board had explored a regulatory program that would have placed hard limits on impervious cover for future development on the recharge zone, but for now opted for an approach aimed at preventing the degradation of water in the aquifer through improved storm-water management and monitoring.