‘This action by Aqua is a threat to all groundwater users in Texas because it threatens the regulatory fabric and framework that we have here in Texas.’ – Jim Blackburn.
AUSTIN — A federal court granted the Trinity Edwards Springs Protection Association’s (TESPA) motion to intervene in an ongoing lawsuit between Aqua Texas and the Hays Trinity Groundwater Conservation District (HTGCD).
Aqua Texas filed the lawsuit in December 2023 against HTGCD and its board of directors for “unlawful and unequal treatment” and for “complete disregard for Aqua Texas’ legal obligation to provide ‘continuous and adequate’ water service to more than 3,000 customers in Hays County,” read a news release that was sent out earlier this year.
The lawsuit was filed in the U.S. District Court of Western Texas after the district fined Aqua approximately $450,000 for pumping nearly twice the amount of water it was allowed to in 2022 out of the Trinity Aquifer that feeds Jacob’s Well and Blue Hole Regional Park, which have experienced diminishing and record-low water levels. Aqua claims that the district exceeded its authority and gave the water company “unlawful and unequal treatment,” stating that the fine was targeted specifically toward the company, as the district has forgiven similar water utilities for their penalties.
In the January 2024 news release, Aqua claimed that after sending out fine notices using the “illegal rate,” HTGCD applied an “unlawful double standard.” According to Aqua, the district “completely forgave the fine assessed against other utilities, but insisted that Aqua Texas pay the almost half-million dollar fine in full” despite the water company’s expense to find leaks, replace old lines, purchase property outside of the Jacob’s Well area to protect the springs and other measures to promote conservation.
“Aqua Texas continues to be focused on our lawsuit with the Hays Trinity Groundwater Conservation District, which failed to treat Aqua Texas equally. Aqua Texas is pouring more than $30 million into improving our Wimberley Valley water infrastructure and [has] already completed the replacement of 5,000 feet of aging water mains — the first of several phases totaling 25,000 feet,” an Aqua Texas representative wrote in a statement. “The upgrades also include the construction of a new $25 million wastewater treatment and reuse plant and the establishment of new groundwater wells that will reduce pumping in the Jacob’s Well Groundwater Management Zone.”
According to HTGCD General Manager Charlie Flatten, most people in the Wimberley Valley, including the city of Woodcreek, rely on the Trinity Aquifer for their drinking water.
Therefore, everyone in the community must do their part to conserve and observe the district’s rules to manage and protect the limited supply of groundwater or the entire community suffers, Flatten continued.
“Aqua Texas failed to manage its permits, which require it to conserve water, especially during droughts, and Aqua Texas must be responsible for its decisions and actions,” he said.
Flatten said that the district also: is entitled to recover civil penalties against anyone who violates the district’s rules; offered to settle its claim for civil penalties against Aqua Texas and provided a deadline for Aqua Texas to resolve the violations, which it failed to do; and disagrees with the legal arguments Aqua Texas has made about the validity of the district’s rules and actions.
TESPA’s motion to intervene
On Sept. 23, Senior United States District Judge David Alan Ezra granted TESPA’s motion to intervene in the case.
The request was filed in the interest of protecting Texas groundwater, which is being threatened by Aqua’s legal action in federal court, according to TESPA.
“We were formed to defend the groundwater users of the Wimberley area and the Hill Country, and also to protect our springs. Ultimately, the water that flows out of the ground and is used for recreation and also for residential and commercial purposes,” said TESPA President Jim Blackburn.
“This action by Aqua is a threat to all groundwater users in Texas because it threatens the regulatory fabric and framework that we have here in Texas.
We felt that this was the type of adverse action [where] we just had to stand up [to] try to have a say and try to have an effective, positive role for groundwater users, owners and resources.”
The motion to intervene is a way for members of TESPA to ask the court to let them join in the litigation because they have an interest that is different from that of the district and that should be heard when the court considers the case, explained Blackburn.
“We represent the groundwater users and we have property rights that the district does not have. We have issues, from a constitutional standpoint, that [are] different from the groundwater district, which is really being sued in this regulatory capacity, but it raises issues about our ownership rights in groundwater and the overall environmental health of the community,” the TESPA president said. “We are acting in that capacity. A motion to intervene just says to the court, ‘We're out here.
We're interested in coming in and we think we either have a right or we think we could add something.’”
Next steps
The case remains in federal court pending further action on Aqua’s claims against the groundwater district.
“I believe that the parties have agreed to a 60-day delay in any filings to give us a chance to come in and participate in the development of expert testimony and the development of a schedule for taking depositions,” Blackburn explained. “There's a lot of behind-the-scenes work that goes into these lawsuits before you actually get to trial and so we are trying to reach an agreement on scheduling right now as to how this whole federal case will unfold.”
According to Blackburn, TESPA’s hopes for the conclusion of the case are that the district’s ability to regulate will be affirmed, the court will find that the regulations that they're imposing are reasonable and that Aqua has suffered no financial loss for which the district would be required to pay.
“And that Aqua [would] essentially be ordered to kind of get their house in order or to cease and desist violating the permit,” Blackburn continued. “I don't know that the federal court will entertain all those issues, but we'd like to at least try to raise those types of issues before the federal judge.”
As for HTGCD, while litigation will not result in more water in the aquifer, the district is hopeful that Aqua Texas will come into compliance.
“The district is hopeful that Aqua Texas will come into compliance with the district’s rules, apply for, obtain and comply with necessary permits for its systems, improve its system to lose less water and better conserve water,” Flatten said, “And make the district whole for the substantial expenditure of its limited financial resources to bring Aqua Texas into compliance with the law, like other groundwater users.”
While many residents may be concerned about their access to water being interrupted due to the case, Aqua Texas stated that it has a legal and moral obligation to continue providing water to its customers, according to Aqua Texas Regional Communications Specialist Jennifer Tuminelli.
Blackburn said that the worry about the long-term availability of groundwater is real.
'We believe that groundwater rights are at risk … We’ve seen Jacob's Well has dried up several times during drought conditions. I think that indicates the impact that overpumping during drought times can have,” he stated.
“We're hoping to try to avoid any types of loss of access to groundwater, but that’s what we're really standing up for is the principle that these regulations are important and that they, frankly, need to be honored and enforced by both the federal and state courts.”
The district recognizes that water is essential for life, said Flatten; therefore, it does not plan to take any action to prevent groundwater withdrawals based on Aqua Texas’ “poor management of our groundwater resources.”
To learn more about the pending litigation between Aqua Texas and HTGCD, visit www.aquawater.com/ htgcd.php or www.ourwaterourtexas. com.
