Published: Thu, 01/11/24
San Antonio Express-News
By Liz Teitz, Staff writer
A private company accused of pumping too much water from the Trinity Aquifer has filed a federal lawsuit against a Hays County groundwater district, saying the district's decision to hit the company with a $448,000 fine amounted to "unlawful bias."
The Hays Trinity Groundwater Conservation District, which is tasked with managing the conservation and development of groundwater in western Hays County, issued the fine last year against Aqua Texas.
The district said the company in 2022 pumped twice as much water as it was allowed to from the Trinity Aquifer during drought conditions. The Trinity Aquifer is a groundwater system that stretches from southwest of San Antonio to northeast of Dallas, through much of the Hill Country; it's made up of different formations, so water enters and recharges the aquifer at different rates depending on location.
In addition to the fine, Hays Trinity district officials threatened to not renew Aqua Texas water pumping permit if an agreement wasn't reached.
Aqua Texas responded by suing the district in federal court in December, calling the district's actions and its "almost half-million-dollar illegal penalty" unlawful.
Aqua Texas, which says it serves 276,000 people in 53 Texas counties, serves customers in three water systems that fall within the Hays Trinity district's boundaries: Woodcreek Phase I and II and Mountain Crest, near Wimberley. The company received a violation notice this past April assessing a penalty of $448,710 for "exceeding the annual drought-adjusted permit amounts" in 2022, Aqua Texas said in the suit.
The company alleges the district's board reached settlements and penalty forgiveness agreements with four other water service providers in exchange for spending the amount of the assessed penalty on conservation efforts, but that Aqua Texas was denied that option. In a news release, the company called it "unfair and unequal treatment."
“To date, Aqua Texas has voluntarily spent millions of dollars in water conservation and replacing aging infrastructure to reduce water loss, to proactively address conservation and for line leakage with the Hays Trinity GCD during the drought curtailment period,” the company said. "The amount that Aqua Texas has spent far exceeds the $448,710 penalty" the company was assessed by the district, Aqua Texas said.
The company cited efforts to drill new wells in an attempt to reduce pumping in the zone near Jacob’s Well, the iconic Hill Country spring that went dry this summer, as well as collaboration on a groundwater study and work to replace aging distribution lines. The company says it spent $85,000 on a study that found its new wells were “hydraulically separated from Jacob’s Well." The company says allowing those wells would benefit Jacob’s Well, but the groundwater district has “refused to permit” those wells.
The district has a moratorium in place on new “nonexempt” wells, meaning those that aren’t solely for domestic or livestock use. The moratorium was needed to protect existing permittees' water supplies, district general manager Charlie Flatten told the Express-News last summer.
Aqua Texas also alleges the district's penalty fees violate state statutes. The district is fining the company $5 per 1,000 gallons above permitted amounts, while the company argues state law caps those fees at 3 cents per 1,000 gallons.
The company said the district’s actions are “placing Aqua’s customers in danger of having their homes deprived of water service.”
“Without this court’s intervention, if the Hays Trinity GCD is allowed to continue its unequal treatment and unlawful bias against Aqua Texas, the residents who are served by Aqua Texas will be left without water with no viable substitute for water service,” the company said. “This circumstance is plainly untenable.”
In a news release, the Hays Trinity district disputed many of the claims made by Aqua Texas.
“Aqua Texas is currently in breach of its local groundwater permit for a variety of violations including failure to adhere to its approved drought management plan, overproduction of groundwater, and failure to maintain its water supply infrastructure as required by district rules,” Flatten said in a written statement. The company produced 89 million gallons more in 2022 than it was allowed, and its systems lost almost one-third of its water “due to poorly maintained water pipe infrastructure."
The district said it has “never threatened” the company’s customers' access to water, and said it has “offered a settlement agreement that reflects Aqua's enormous overproduction, largely due to Aqua Texas’s failure to fix leaking infrastructure.” The agreement aims to encourage Aqua Texas to comply with its own drought conservation guidelines and improve its infrastructure, the district said.
In response to the company’s claim that it has spent money on infrastructure for conservation purposes, the district said it hasn’t been determined if those expenditures “qualify as conservation improvements or out of the ordinary weather-related line failures,” or if those costs are simply “regular maintenance and operational costs," which wouldn't offset penalties.
"Put simply, Aqua Texas has not abided by its permit from the District and has failed to keep its infrastructure in shape, resulting in the ongoing overproduction of its permit," he said.
Flatten said the population of western Hays County has doubled and the local Trinity Aquifer is "at its lowest recorded levels."
According to a December update on the district's website, all of the wells in the district are below the 50th percentile. While well levels have recovered somewhat since the fall, the district remains in emergency drought conditions, requiring a 40% curtailment district-wide and a 30% curtailment in the Jacob's Well Groundwater Management Zone, a 39-square mile area around Jacob's Well where restrictions are based on spring flow.
Aqua Texas is part of Aqua, a Pennsylvania-based company that provides water and wastewater treatment in eight states, including Illinois, New Jersey and Virginia. It owns and operates 1,518 public water systems and 227 public sewer systems, according to its website, and has been growing rapidly by acquiring existing systems, including 66 between 2015 and 2022.