Protecting The Water Of The Hill Country - A Necessity For The Future Jim Blackburn President, Trinity Edwards Springs Protection Association (TESPA) June 22, 2017

Photo By Jim Olive Our Place

Location of the EP Proposed Well Field Between Two Groundwater Districts and Beneath a Third Location of the EP Proposed Well Field Between Two Groundwater Districts and Beneath a Third Drawdown From 1.5 mgd = 90 feet 5 miles away – EP Initially Proposed 5.3 mgd TESPA Formed To Combat Vanessa Puig- Groundwater Plunder Williams

Executive Director and General Counsel

Jeff Mundy

Trial Counsel Impact Reports LBG-Guyton and Wet Rock Groundwater Services • Original proposal for withdrawal of 5.3 MGD – yield determined to be less that 2.5 MGD without consideration of impacts • LBG-Guyton report estimates that at a pumping rate of only 1.5 MGD, water level declines approximately 90 feet 5 miles from the center of the EP well field. • Potential effects of streamflow are discussed in the Wet Rock report which concludes that impacts to Jacob’s Well and Pleasant Valley Springs are unlikely. • “This is contrary to drawdown estimates in the LBG-Guyton report which indicate 90-170 feet of potential drawdown at a pumping rate of 1.5 – 3 MGD 5 miles from the EP well field”. Previous studies have shown minimal reductions in the potentiometric head of the Middle Trinity will have significant impact on the flow for these springs. Additional study is required. March 26, 2015

Source: Meadows Center for Water and the Environment by Doug Wierman, P.G., March 26, 2015 TESPA 2015 Litigation vs. EP + Landowners

Key Legal Issues:

1. Is EP actually within the jurisdiction of the Hays Trinity Groundwater District? 2. Is the Rule of Capture contrary to the Conservation Clause of the Texas Constitution? Rule of Capture

Adopted in 1904 & Texas Central Railway Co. v. East

• Adopted Rule of Capture re: groundwater • Landowner may take groundwater • Even if neighbor is negatively harmed • Damnum absque injuria • “(1) Because the origin, movement and course of [groundwater] and the causes that govern and direct their movement are so secret, occult and concealed that an attempt to administer any set of legal rules in respect to them would therefore be practically impossible. Authority v. Day Texas Supreme Court, 2012 •Reaffirmed the Rule of Capture •Created In Situ Property Rights in Groundwater (as opposed to actually capturing it) •Affirmed Right of Groundwater District to Issue Permit For Less Than Requested •Remanded the Case for Consideration of “Taking” Issue HB 3405: Brought “White Area” under jurisdiction of BSEACD Trade-Offs of HB 3405

• Regulation by BSEACD brought to “white area” • New hybrid permit created for “existing wells” or “wells for which water contract exists” • Temporary hybrid and regular hybrid • Temporary “shall” be granted for maximum amount requested + no hearing • Regular permit may reduce temporary if • 1) failure to achieve the applicable DFC, and • (2) unreasonable impact to existing wells. Current Situation

Contested Case Request

Application of Needmore MUD for 289,000,000 gallons for agricultural use

Initial Hearing – July 31, 2017 Drawdown With No Other Future Wells

Distance-Time Drawdown From Well D

Years Since Initiation of Pumping 0 1 2 3 4 5 6 7 8 9 10 0

10 Q = 550 gpm 20 T = 809 ft2/day 30 S = 0.0000925 (BSEACD Table A-8) 40

50 Drawdown (ft) 60

70

80

90 1 Mile 2 mile 3 Mile 4 Mile 5 Mile

Note: T(ave) w/o Well D Agricultural Basis for the Permit Application 289 million gallons

Assuming each cow drinks 30 gallons per day X 365 = 10,950 gallons

289 million divided by 10,950 = 26,000+ cows

Needmore Ranch = 5000 acres

5 cows per acre? Normal stocking density is at least ten times if not a hundred times lower. Recent Legislative Session

• H.B. 4122 by Kacal – landowner with more than 1000 acres and land in two groundwater districts can transfer into one district. Died in committee • Supported by Needmore, e.g., Greg La Mantia • SB 862 by Senator Perry - Required the losing party in a suit against a groundwater conservation district to pay court costs and attorney’s fees; died in committee. • SB 1392 by Senator Perry - would have completely overhauled Chapter 36 of the Water Code, eliminated historic use permits, emphasized private property rights, required groundwater districts over the same aquifer to adopt similar rules, and prohibited groundwater districts from placing special conditions on permits; died in committee. The Future of the Hill Country Surface Water of Texas is Owned By the Public

Counties, Hill Country

Llano River

:Photo By Jim Olive

Blanco River

Photo By Jim Olive

Medina River

Photo By Jim Olive

Nueces River

Photo By Jim Olive Surface Water Connected to Groundwater By Springs

If the Springs Don’t Flow, Our Property Is Depleted if Not Taken Karst Geology

Jacobs Well Bracken Cave Karst Region of Texas a.k.a. The

Diagram of Karst Geology and Water Flows

Graphic from Austin Parks and Recreation Department Endangered Species – Sierra Club v. Babbitt Sierra Club v. Babbitt

• Suit against U.S. Fish and Wildlife Service for failure to establish minimum drawdown limits on Edwards Aquifer to maintain springs flows at San Marcos and Comal Springs • Suit filed by Sierra Club, Guadalupe-Blanco River Authority, City of San Marcos and City of New Braunfels • Led to creation of Edwards Aquifer Authority by the Texas Legislature to regulate groundwater withdrawals • Led to the adoption of a Habitat Conservation Plan to protect the endangered species of Comal and San Marcos Springs Edwards Aquifer Habitat Conservation Plan

• The Partners • Edwards Aquifer Authority • The City of New Braunfels • The City of San Marcos • The City of acting by and through its San Antonio Water System Board of Trustees • Guadalupe-Blanco River Authority • • Texas Parks and Wildlife Department (TPWD) • Fish and Wildlife Service (USFWS) Edwards Aquifer Authority Hill Country Endangered Species Golden-Cheeked Warbler Breeding Area Showing Recovery Regions Black Capped Vireo Range Barton Springs Salamander Comal Springs Dryopid Beetle

The Comal Springs dryopid beetle was first discovered in 1987 and officially described in 1992 and listed in 1997. . Karst Invertebrates Bexar, Travis and Williamson Counties

1. The USFWS listed seven karst invertebrates from Travis and Williamson County as endangered in 1994, granting them protection under the Endangered Species Act. 2. Nine additional karst invertebrates from Bexar County were listed as endangered in 2000. 3. Critical Habitat for Bexar County karst invertebrates was designated by the USFWS in 2012. Golden Orb Mussel Texas Fatmucket False Spike Smooth Pimpleback Texas Fawnsfoot Texas Pimpleback Commonality Among These Species

• Water is essential to the survival of these species • Most require specific springs or riverine flows • Birds require seeps and springs • All occur within the Texas Hill Country State Efforts to Delist Golden-Cheeked Warbler

Commissioner of GLO George Then-Comptroller Susan Combs filed P. Bush filed lawsuit to compel petition to delist in 2015 based on delisting based on pleadings study by Texas A&M prepared by Texas Public Policy Foundation Current Efforts To Prevent Listing of 6 Mussels

Effort led by Robert Gulley

Working With Comptroller Glen Hagar

Did excellent work on Edwards Aquifer Recovery Implementation Plan

Could lead to protection of mussels and water in exchange for no listing

Could work against mussels and water in the Hill Country and Texas Commonality Among These Species • Water is essential to the survival of these species • Most require specific springs or riverine flows • Birds require seeps and springs • All occur within the Texas Hill Country Addressing the Commonality

Hill Country Wide Groundwater Conservation District Protect the Springs Protect the Riverine Flows Protect Our Heritage

Groundwater Districts & Karst Regions Some Observations • Karst Geology of extremely difficult to model (if not understand) Some Observations • Karst Geology of Central Texas extremely difficult to model (if not understand) • Tremendous difference in groundwater districts – budget, rules, personnel Some Observations • Karst Geology of Central Texas extremely difficult to model (if not understand) • Tremendous difference in groundwater districts – budget, rules, personnel • Texas schizophrenic about property rights • Surface waters are public property • Groundwater is private property Some Observations • Karst Geology of Central Texas extremely difficult to model (if not understand) • Tremendous difference in groundwater districts – budget, rules, personnel • Texas schizophrenic about property rights • Surface waters are public property • Groundwater is private property • Connection between Ground and Surface Water very important – springs and inter-connected flows Some Observations • Karst Geology of Central Texas extremely difficult to model (if not understand) • Tremendous difference in groundwater districts – budget, rules, personnel • Texas schizophrenic about property rights • Surface waters are public property • Groundwater is private property • Connection between Ground and Surface Water very important – springs and inter-connected flows • To protect our public and private waters, we need either • Comprehensive reconsideration of Texas groundwater law • A willingness to fight and to litigate Some Observations • Karst Geology of Central Texas extremely difficult to model (if not understand) • Tremendous difference in groundwater districts – budget, rules, personnel • Texas schizophrenic about property rights • Surface waters are public property • Groundwater is private property • Connection between Ground and Surface Water very important – springs and inter-connected flows • To protect our public and private waters, we need either • Comprehensive reconsideration of Texas groundwater law • A willingness to fight and to litigate • Endangered Species may be very important in the future of Hill Country Water Some Observations • Karst Geology of Central Texas extremely difficult to model (if not understand) • Tremendous difference in groundwater districts – budget, rules, personnel • Texas schizophrenic about property rights • Surface waters are public property • Groundwater is private property • Connection between Ground and Surface Water very important – springs and inter-connected flows • To protect our public and private waters, we need either • Comprehensive reconsideration of Texas groundwater law • A willingness to fight and to litigate • Endangered Species may be very important in the future of Hill Country Water • If we don’t fight for our water, we will lose it

Thank You

Photo By Jim Olive