The Trinity Edwards Springs Protection Association (TESPA) filed suit in Hays County District Court Friday morning seeking to stop any further work by Electro Purification unless and until they obtain groundwater use permits from the Hays Trinity Groundwater Conservation District. TESPA filed suit on behalf of members living within ½ mile of the Electro Purification project. The suit names Electro Purification and the landowners who leased the groundwater to Electro Purification as defendants.
The suit was filed under provisions of Chapter 36 of the Texas Water Code that allow landowners to sue over water well construction on adjacent property when the wells were constructed without appropriate permits. The suit also complains that the rule of capture applicable to groundwater in Texas under older case law violates the new property right in groundwater established by the Texas Supreme Court in the case of Edwards Aquifer Authority v. Day, particularly given the extensive well drawdown anticipated on adjacent properties due to the Electro Purification project.
According to Vicki Hujsak, a founding incorporator of TESPA, “TESPA was formed to take action to protect our aquifers and springs. It feels good to be fighting back.”
Jeff Mundy, lead trial lawyer for TESPA summarized the main points of the case. “First, our legal research revealed that the Legislature already passed legislation which attempts to protect all of the groundwater in Hays County through groundwater conservation districts. The Legislature gave the Hays Trinity Groundwater Conservation District default jurisdiction over groundwater in all of Hays County, to the extent jurisdiction has not otherwise been given to another groundwater conservation district. The HTGCD has a legislatively mandated duty to protect groundwater to assure it is used wisely and in a sustainable manner.
Second, if for some reason the courts find that the HTGCD does not have jurisdiction to protect this groundwater, TESPA is requesting the Supreme Court of Texas to review and overturn the ‘rule of capture’ as it applies to groundwater, which will have statewide impact in areas not protected by groundwater conservation districts or other water conservation districts. We hope to bring the common law of Texas into accord with the laws promoting groundwater conservation as passed by the Legislature and as mandated by the Texas Constitution.”
According to Vanessa Puig-Williams, an environmental attorney helping TESPA, “The rule of capture is harsh and archaic, dating back to a 1904 decision that referred to groundwater as secret and occult. We are well beyond the occult in our understanding of groundwater today, and we feel that the time is ripe to challenge this doctrine that has long outlived its usefulness.”
As filed, the suit seeks a temporary injunction to stop Electro Purification until the Hays Trinity Groundwater Conservation District decides how to respond to the allegation that they have regulatory responsibility for these contested wells. The Hays Trinity District was served Tuesday with a letter giving them notice that they had 90 days to determine what action, if any, they wished to undertake.
For information, watch the TESPA website, www.tespatexas.org .
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