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Water, pipeline companies at odds over future wells

A Houston-based water supplier that was public enemy #1 in Hays County five years ago may have just engineered a significant delay in the construction of the Kinder Morgan Permian Highway Pipeline (PHP), which has taken its place at the top of the list.

If upheld, a judge’s recent decision could keep the natural gas pipeline from being built along a portion of the PHP’s proposed route for 10 months or more.

Electro Purification drew the ire of local governments and rural well owners when it announced plans in 2015 to drill a number of commercial wells, pumping potentially 32.59 million gallons of water per year from the Trinity Aquifer in a spot that was not under the regulation of a groundwater district.

Nearby landowners feared for the future of their own wells, and questions began to be asked about the long-term wisdom of Texas’ “right of capture,” which basically gives landowners the right to the unlimited use of resources below the ground, such as water in an aquifer.

EP had initially sought to pump one million gallons of water daily to supply customers in other parts of the state. The Texas Legislature stepped in and extended the jurisdiction of the Barton Springs Edwards Aquifer Conservation District (BSEACD) to cover the targeted portion of the Trinity.

EP filed for a series of permits and revisions over the course of the next two years and was granted, in December 2019, a permit to pump millions of gallons of water annually, with provisions that the amount could be altered to protect nearby wells and the health of the aquifer overall.

Enter Kinder Morgan in 2018, eager to acquire easements for the 430-mile natural gas pipeline from the oil fields of West Texas to near Houston. Because pipelines are considered infrastructure, the companies that build them are legally allowed to use the power of eminent domain to acquire easements along the proposed route.

That power was challenged in court by Hays County, the city of Kyle and others. However, a district judge tossed out the suit.

The company’s representatives say that most landowners along their proposed route did not object to the pipeline but others complained, and took the company to court, alleging undervaluing easements through Blanco County. Kinder Morgan says it made minor alterations to the route on the behalf of multiple landowners.

However, Kinder Morgan and EP remained at odds over a portion of the route through the Bridges and Odell tracts in Hays County, roughly along FM 3237 west of Kyle. EP wells located there would have to be moved and the company argued it had already invested approximately $3 million in its water project.

Arguing that moving their wells would essentially force a restart of the permitting process, EP sued Kinder Morgan seeking damages. The presiding judge granted EP’srequest for a temporary restraining order that Kinder Morgan cease and desist from actions on the two tracts in dispute until the next court hearing can be scheduled.

EP’s permits continue to be challenged by entities including the Trinity Edwards Springs Protection Association (TESPA). EP had sought to delay a hearing on that dispute until it resolved matters with Kinder Morgan. However, TESPA sought an extension of only three months, and the State Office of Administrative Hearings (SOAH) agreed, citing complications due to the COVID-19 pandemic.

On March 30, EP filed a motion to continue abatement of the pending SOAH hearing. “Given the current circumstances of the pandemic and with the defined end date for abatement, no parties opposed the motion,” TESPA said in a statement issued April 2.

The association says it expects the administrative law judge to extend the abatement through July 17, with the hearing postponed until at least February 2021.

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