By Moses Leos III

A possible settlement involving Kyle, the Save Our Springs Alliance and the Barton Springs Edwards Aquifer Conservation District (BSEACD) may end a seven-year fight over Kyle’s right to pump from the Edward’s Aquifer. 

“That city is optimistic and we hope the SOS and the [BSEACD] are also optimistic,” Mike Gerson, law partner at Lloyd Gosselink and the city’s attorney on water issues said. “The parties have turned a corner in this whole permit exercise, and we can settle all matters pretty soon.”

The three entities are negotiating a settlement offer that would allow Kyle to pump an additional 165 million gallons from the aquifer on a conditional basis. 

The protracted saga began 2007 when Kyle applied for a conditional production permit to draw more water from the Edwards Aquifer. Getting approval on that type of permit is based on the water supply in the aquifer. The amount pumped from the aquifer decreases during severe and critical droughts, and is eliminated during exceptional droughts stage. 

In order to receive the permit, cities must have alternate water sources to back up the curtailment.  

Kyle sought to increase its permitted pumpage from the aquifer from 185 million gallons to 350 million gallons per day to meet the water needs from the city’s rapid growth.  

The city planned to use an existing well at the 700 block of Kohler’s Crossing to pump the additional gallons.  According to Gershon, the city believed they had the resources to meet the district’s rules. 

At the time, Kyle obtained ground water from the Edward’s Aquifer Association, and surface water from Canyon Lake via the Guadalupe-Blanco River Authority. Kyle also planned for an additional water supply from the Carrizo-Springs Aquifer via the Hays-Caldwell Public Utility Agency. 

“We went into that feeling confident that with the permitting criteria, that [BSEACD General Manager Kirk Holland] was going to grant the permit,” Gershon said. 

However, the BSEACD board of directors rejected the permit, citing the city didn’t have the necessary water sources should the permit be curtailed.

“The evidence that was presented at district hearing on that question produced a number that was short of what the standard should be,” John Dupnik, current BSEACD General Manager, said. 

He added it was a unique situation for the district, and its evolution of conditional permits. Prior to 2004, the district operated on historic permits, which didn’t hold the same rules. 

Instead, the board decided to allow Kyle to pump only 100 million gallons per day. 

After failed negotiations, the city eventually filed suit, appealing the decision. They ultimately won their case in 2011 by virtue of a summary judgment. Hays County District Court Judge Charles Ramsey ruled the BSEACD remand the permit, citing the city had the necessary alternative water measures in place. 

According to Gershon, the city and BSEACD reached a settlement after that decision to grant the city the full permit.   

But Ramey’s decision drew several appeals from SOS. The latest was in 2013, when SOS challenged the district’s remand of the permit in a limited hearing. 

In June, the 22nd District Court of Appeals in Hays County ruled against the SOS’s appeal. 

However, a settlement offer from the SOS in September may signal the end of the legal process for the permit. 

According to Gershon, the SOS proposed to withdraw their objection to Kyle’s permit, if the city withdrew their objection to SOS’s involvement. Gerson is hopeful the settlement will allow the BSEACD to schedule a limited hearing for the permit. 

Currently, the city pumps the 100 million gallons issued by the district in 2011.

No formal date has been established for the district’s limited hearing. 

However, with Kyle currently utilizing its permit, the limited hearing could be more of a formality. 

“Not to say a decision has been made, but [Kyle has] been operating with their permit ever since (2011),” Dupnik said.