County readies argument for EP party status

Hays County leaders will spend the next few weeks preparing written arguments to the State Office of Administrative Hearings (SOAH) in their fight to receive affected party status against Electro Purification.

The arguments must be submitted by a. 8 by all parties seeking status, including the applicant, Electro Purification.

The Houston based company applied for a permit through the Barton Springs Edwards Aquifer Conservation District (BSEACD) to pump nearly one billion gallons of water a year from the Trinity Aquifer. In July, BSEACD officials gave the green light for a contested case hearing at the request of EP.

EP is expected to list reasons why Hays County should not receive party status in its brief to Administrative Law Judge Joanne Summerhays.

But the county is receiving support from certain parties that have already received affected party status by SOAH, including Saint Stephen’s Episcopal Church and School in Wimberley.

“Everyone at our church is extremely concerned and vocal in their opposition in this proposed permit,” said Patrick Cox, senior warden at Saint Stephen’s Episcopal School. “Judge Summerhays has laid out a schedule and we are going to be watching this process unfold very closely.”

Cox said opposing the permit goes beyond the applicant’s wishes to pump from the aquifer, and stem from the church’s philosophy to be stewards of the natural resources in the Hill Country.

Lon Shell, Hays County Commissioner for Precinct 3, said he is pleased that the judge allowed the parties to submit written briefs and believes the county has a strong argument in the case.

Despite EP’s legal team arguing that the county cannot regulate groundwater, Hays County elected officials and staff are arguing that the County has land in the immediately affected area.

Although Hays County cannot regulate groundwater, the County’s does have the authority to look at groundwater availability when regulating subdivisions.

The County is arguing that excessive pumping by EP would be a burden to the citizens in the subdivisions, a key argument that may give Hays County affected party status.

EP is also contesting affected party status for James Chisholm, a landowner with one mile of the EP well fields.

Edmond and Eddie McCarthy, EP’s attorney’s, are arguing that Chisholm’s property lies at the jurisdiction of the Hays Trinity Groundwater Conservation District, which should disqualify him from affected party status.

“It’s telling me that it doesn’t matter to EP if you’re going to be impacted by this pumping even if you’re on the other side of an arbitrary line,” Shell said. “We have an opportunity to include some citizens located on the Hays Trinity side, and that would be huge for this fight.”

At a June town hall hosted by the BSEACD, groundwater district officials said EP will be financially responsible for any damages that may occur to citizens’ wells.  

But if residents located on the Hays Trinity jurisdiction fail to receive party status, Shell fears preliminary agreements could be scrapped.

“If these residents don’t receive that party status, that will be something EP will hang their hats on,” Shell said. “If the Judge says we have standing, that will strengthen our argument. Again, we want to focus on true impact, not arbitrary lines.”

Cox said the County has a clear role in the contested hearing and believes the officials at the first hearing presented their arguments well.

Judge Summerhays will receive briefs on Oct. 8 for review, and an additional reply brief on Oct. 16. Summerhays will determine affected party status at that time, and final hearings are expected by summer 2019.

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