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Edwards Aquifer News for 2016

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June 2016

San Antonio bans use of coal tar sealants

On June 30, the San Antonio City Council banned the use of coal tar-based road sealants, effective January 1. Scientific studies have shown that chemicals released by coal tar sealants known as polycyclic aromatic hydrocarbons (PACs) are cancer-causing, and the San Antonio River Authority believes that runoff containing PACs is harmful to wildlife.

Many other cities already have bans on coal tar sealants, but San Antonio will be the largest when the measure goes into effect.

Representatives of the paving and sealant industry had mounted an all-out assault on the ban, calling it an unsound, costly idea that would have a tremendously detrimental effect on business owners, pavement sealant manufacturers, and tax revenues.

Councilman Ron Nirenberg said a coal tar ban would protect public health, and said "This is a long-overdue measure that is based in common sense and backed by science."

Ownership claim of Spring Island settled

In November of 2013, an ownership squabble developed over a scenic little spot in the Comal River called Spring Island. For many decades, the general public has been excluded from the one-acre island - the only persons allowed were those residing within the Comal County Water Recreational District No. 1 in the Landa Park Highlands and Landa Park Estates subdivisions. The District was created in 1937 for mosquito and trash control and is the state's only Water Recreational District. The legislation that established it said its purpose was to "protect the health of those residing in such district and keep such waters in good condition for the recreational purposes of swimmers and fishing therein and boating thereon by those entitled to do so." This was interpreted to mean the only "entitled" persons are those in subdivisions with deed provisions that grant them access. After a spate of trespassing complaints in 2013, the District was asked to produce a deed, which it couldn't. Board chairman Cecil Eager said "The district was given authority over the island by the Legislature. I believe it's owned by the residents of the subdivisions." Mike Reynolds, publisher of the Texas Citizen weekly newspaper said "They're basically squatting on public property and claiming it for themselves," and he offered to fund the defense of the first person arrested for trespassing. "We want to see this ownership claim test in court. It's not going to pass muster," he said.

Eventually, a title search revealed the Island was actually owned by the Lower Colorado River Authority, which acquired it in 1972. In 2015 the LCRA transferred title of the Island to the Colorado River Land Trust, a nonprofit created by the LCRA in 2013 to preserve the natural beauty and history of the Colorado River basin. The site is not in the Colorado River basin, it's in the Guadalupe River basin, but the LCRA Trust and the Water Recreational District have similar goals, so they began negotiations to sell the Island to the District. In April 2016 the Trust sold to the District 9.46 acres of river property between Houston and Landa Streets, including Spring Island and other small islands, for $300,000. The District assessed a special one-time charge to each of the 311 residential property owners in the district to fund the purchase.

So the title issue was solved, and the District defended its practice of restricting public access to the land even when it didn't own the land. Property owners have deeds which give them rights to build structures, swim, fish, and enjoy the place, and the District's lawyer Leonard Dougal said "We've always believed those were exclusive rights, otherwise there would be no need to include them in the deed. Because they were exclusive rights, the district that manages the property had grounds to exclude people from the property."

For more on the Comal River and Comal Springs see the Comal Springs page.

Rare Mexican blindcat found in Texas cave

On June 17, Christine S. Sinatra reported news from the College of Natural Sciences at the University of Texas at Austin: the university's curator of ichthyology Dean Hendrickson had identified two live fish collected in a deep limestone cave near Del Rio as Prietella phreatophila, the rare Mexican blindcat. The fish grows to only about three inches in length and is adapted to a unique ecological niche where things like eyes, pigmentation for camouflage, and speed are not needed. Instead it has evolved extra-sensory abilities to survive in total darkness. It is slow-moving and a pale pink color because its blood can be seen through translucent skin.

The discovery brought to three the number of blind catfish species known in the United States. The other two are the Toothless blindcat (Trogloglanis pattersoni) and the Widemouth blindcat (Satan eurystomus), both found only in wells more than 1,000 feet deep underneath San Antonio (see the discussion of Deep Water Biota on the Intro page).

There had been rumors of sightings of blind, white catfish since the 1960s in the area of Amistad National Recreation Area, but none had ever been confirmed or scientifically identified. Jack Johnson, a National Park Service resource manager at Amistad, spotted some of fish in April of 2015 and assembled a team of biologists that succeeded in netting two specimens where groundwater rose to fill a deep cave. They were removed to the San Antonio Zoo where they will be maintained alive in a facility specially designed for cave and aquifer species.

The discovery lends support to the theory that water-filled caves below the Rio Grande connect the Texas and Mexico portions of the Edwards-Trinity Aquifer.

Others involved in the discovery were Andy Gluesenkamp and Ben Hutchins of the Texas Parks and Wildlife Department, Gary Garrett and Adam Cohen of UT Austin, and Jean Krejca of Zara Environmental.

Mexican blindcats found in a limestone cave near Del Rio. Photo by Dante Fenolio.

Kerfuffle over land purchase ends with approval for land purchase

In early June, news reports outlined plans by the city to purchase about 204 acres of land near Stone Oak that is over the Recharge Zone, part of what is known as the Classen-Steubing Ranch. In a two phase deal, 165 acres would be purchased first and would be preserved in an undeveloped state for Aquifer protection. Another 39 acres would be purchased if voters approve a $3.8 million bond program in 2017, and that tract would eventually get ball fields, hike-and-bike trails, and other park amenities.

Within days, the Greater Edwards Aquifer Alliance issued withering criticism of the deal, saying developers had figured out a way to use Aquifer protection funds for their benefit. The Classen-Steubing family will retain about 400 acres, part of which could be developed, and the entire proceeds from the sale will fund road construction. GEAA director Annalisa Peace said "Basically, what it looks like to us is they shaved off the part of the land that's undevelopable and are selling it to the city for this really high price so they can get the infrastructure they need to develop the rest of the site."

Councilman Joe Krier defended the deal, saying "We could have stood on the sidelines and watched as a developer built as many as 3,500 residential units on the Steubing Ranch. But we thought the better approach would be to talk with the Classen-Steubing family about an agreement that would have a far, far smaller impact on the recharge zone. And that's what we got."

Krier also noted the property has vested development rights, and "If they had wanted to get started some time ago, we could have developers out there today cutting down 100-year old heritage oaks, and they'd be completely within their right to do so.

On June 16, City Council unanimously approved the first part of the purchase deal, under which $5.3 million of Aquifer protection funds will be used to acquire the 165 acres. It also approved $1 million to purchase 5.3 acres for park development. Purchase of the remaining acreage is contingent upon approval by voters.

Work under way for endangered species habitat at Comal Springs

By June of 2016 a second phase of improvement and restoration efforts had begun under the Habitat Conservation Plan to protect habitat for four endangered species Comal Springs. New retaining walls, re-contouring, and native plantings will restore about 1,000 linear feet of steep and eroding bank alongside the first hole of the Landa Park Golf Course. This will minimize erosion from that slope and protect the instream habitat for fountain darters, the Comal Springs riffle beetle, the Comal Springs dryopid beetle, and a small crustacean known as Peck's cave amphipod. The project cost is $870,000.

Phase one of the improvements began in 2013 and were the first project carried out under the By the spring of 2013, New Braunfels had begun implementing a number of management and restoration efforts listed in the newly approved Habitat Conservation Plan to protect the endangered species in the Springs and the Comal River. An island was removed in the Comal River to increase Fountain Darter habitat, and other measures in the plan include flow management, restoring and maintaining native aquatic vegetation, managing public recreational use, and controlling harmful non-native species such as Asian gill parasites (see the New Braunfels section of the HCP). Over 75,000 snails were removed, along with 2,300 pounds of non-natives such as nutria and talapia, erosion control mats were installed, and more than 10,000 aquatic plants were planted. There were plans to consider a ban on certain types of non-native live bait and develop an education program for fishermen regarding what types of bait are appropriate in such a sensitive area.

May 2016

Texas Supreme Court extends accommodation doctrine to groundwater

Under Texas' "accommodation doctine", owners of underground mineral rights such as oil and gas must accommodate the activities of whoever owns the surface estate. On May 27, the Texas Supreme Court ruled the accommodation doctrine should also apply to groundwater, in addition to oil and gas.

This means, for example, that surface landowners now have a specific legal doctrine on which to challenge plans to pump water from below their property. And so some observers hailed the decision as a major victory for landowners.

Others were not so positive, because the ruling also establishes the rights of groundwater owners are dominant over those of surface owners. The groundwater owners now have an explicit and expansive right to access the surface tract without the permission of the surface owner and without compensation.

Also, the burden of proof under the accommodation doctrine is very high and falls on the surface landowner. In the Texas Tribune, Austin water lawyer Vanessa Puig-Williams noted that landowners must not only prove that drilling operations will substantially impair their existing use of the land and that there are no reasonable alternatives, but they must also prove that reasonable alternatives are available to the producer. Historically, it has been difficult to meet that burden in oil and gas drilling disputes. "The accommodation doctrine is really not that protective of the surface owner's interests," she said.

Ground broken for Confluence Park

As part of the San Pedro Creek Improvements Project, a new park at the confluence of the San Antonio River and San Pedro Creek will highlight the science and culture of San Antonio's deep relationship with water and landscape. On May 11 a groundbreaking ceremony was held for the new park, which will include a 30-foot tall pavilion as its focal point, a multi-purpose room with solar panels, a vegetative green roof, and areas demonstrating various Texas ecotypes.

To get some idea of the overwhelming amount of important local history that surrounds these places, you really should read the pages on San Pedro Springs, San Antonio Springs, and the San Antonio River.

Braggs awarded more than $4.5 million

On May 6 Judge Tom Lee of the 38th Judicial District Court awarded Glenn and JoLynn Bragg compounded daily interest on their jury award of $2.55 million, adding $1.97 million to the total award the Braggs will receive in their takings case.

In February a victory for the Braggs marked the end to more than a decade of litigation. For more on the February decision see the News item below, and for the whole story of the Bragg case, see the extended write-up on the Laws and Regulations page.

April 2016

Sen. Carlos Uresti may get involved with suits over leaking underground storage tanks

On April 17 Gilbert Garcia of the Express-News reported that Bexar County was considering lawsuits against businesses with leaking underground storage tanks, and that Sen. Carlos Uresti's had been involved in discussions and his law firm may get involved.

Back in February, local attorney Justin Hill provided the county's Public Works Department with a list of 304 Leaking Petroleum Storage Tanks in Bexar County. All of them "have self-admitted that they were polluting some water supply, at least. All the way to some of those admitting that they were polluting into the Edwards Aquifer."

Hill has worked with law firms in Houston who represented Harris County on similar underground storage tank litigation, and he asserted "The state has quit enforcing some environmental regulations, and so you've had counties, which have the right under state law to bring these on their own, stepping up and filing actions for enforcement of environmental actions."

County Commissioner Kevin Wolff was skeptical, saying "I see this as nothing more than ambulance chasing at a different level. It's not fixing anything. It's just a way to try and generate fees for a (law) firm, cloaked in 'revenue for the county' and "protecting the environment'". Lawsuits may be successful at collecting fines, but they could not force the violators to fix their environmental problems.

Garcia reported that Wolff saw the issue as one that is already monitored by the state and belongs under the purview of the Texas Commission on Environmental Quality.

March 2016

Rule changes proposed to better manage Trinity Aquifer in newly annexed area

In March of 2016, the Barton Springs-Edwards Aquifer Conservation District began a formal rulemaking process as part of their new responsibility to manage the area that legislators added to their district with the 2015 legislation. The District noted that proposed rules would focus on management strategies that will protect existing wells and preserve the long-term availability of water supplies from the Trinity Aquifer. Under the proposed rules, applications for large-scale groundwater projects would require more rigorous aquifer testing, an expanded public outreach area, and continued aquifer monitoring. "These rule changes would establish a framework to allow for a science-based evaluation of prospective applications, assess the potential for unreasonable impacts to existing wells and the aquifer, and require the necessary measures to avoid those impacts," said District General Manager John Dupnik.

The addition of the area in Hays county resulted from controversy over a new water project being pursued by the Electro Purification company. See all the details on the Trinity Aquifer page.

Olmos Creek may get long-awaited improvements

To put this news item in perspective, you really should read the page on the San Antonio River. The Olmos Creek improvements are one aspect of a much broader environmental management challenge, and there is a tremendous amount of interesting history and current science involving the San Antonio River.

Anyway, as for the topic at hand of the problems in Olmos Creek, which is really the same thing as the San Antonio River, is trash. In March of 2016, Master Naturalist Lissa Martinez explained to an Express-News reporter that to understand the value of Olmos Creek, you have to look beyond all the trash. Intact riparian ecosystems offer large benefits for water quality and urban wildlife, but Olmos Creek is largely degraded by erosion, invasive plants, and litter.

Martinez spoke of new hope that a 14-year old plan to improve Olmos Creek might finally get underway in 2017. A stream restoration plan developed by the U.S. Army Corps of Engineers, the city of San Antonio, and the San Antonio River Authority would remove and replace invasive plants, create more shade over the creek, and address erosion. The area to be upgraded reaches from the San Pedro Driving Range to the Olmos Dam. A 50-foot wide buffer of bottomland hardwood forest, which is crucial for water quality, would be added in most of the reach and would be 300 feet wide in some places.

February 2016

Landmark Bragg v. EAA case ends with victory for landowners

On February 22, after hearing closing arguments in the Bragg v. EAA case, jurors spent the afternoon deliberating and found that Glenn and JoLynn Bragg were owed $2,551,490 by the EAA for unconstitutionally taking their private property. The decision marked an end to more than 10 years of litigation. "We're pleased to have it over," JoLynn Bragg said. "We can live with this." Including interest, the Braggs will eventually see more than $4 million in compensation.

Legal experts noted that in the end, additional issues remain and uncertainty continues to exist. Because the Supreme Court let the appellate decision stand and did not weigh in on the issue, there is still a lack of direction from the highest court. As is stands, the appellate court's ruling seems to tip the balance toward landowners when faced with limits to their water use imposed by groundwater districts.

Staff lawyers at Lexology, which provides legal analyses to business professionals, concluded that groundwater authorities should fear that landowners across the state will be encouraged to attack existing regulation on their pumping. They wrote "...landowners now have strong footing in the assertion that regulations limiting their ability to pump groundwater represent a "taking" that deprives them of their property right in the water underlying the land. In application, groundwater authorities could find that current and future regulations restricting a landowner's ability to pump groundwater could require compensation to landowners."

Also, it is not clear if the ruling will apply if property is purchased after the creation of a regulating water authority, or how future denials of pumping permits will be affected. Lexology noted "Until the Texas Supreme Court clarifies these issues, litigation will likely ensue and appellate court opinions could begin to splinter, thereby, further muddying groundwater regulations across Texas."

For the whole story of the Bragg case, see the extended write-up on the Laws and Regulations page.

Bragg v EAA goes to trial

On February 16, mediation failed in the Bragg v. EAA case and a jury selection began. The jury will be asked to determine the amount of compensation owed to pecan farmers Glenn and JoLynn Bragg by the EAA.

January 2016

Mediation scheduled in Bragg v. EAA case

On January 14, William Hoover of the Hondo-Anvil Herald reported a mediation session had been scheduled for January 25 where parties will attempt to agree on the amount of compensation owed to pecan farmers Glenn and JoLynn Bragg by the EAA for unconstitutionally taking their private property. The case was decided in May of 2015 after more than a decade of litigation and marked the first time that a landowner in Texas had a ruling that groundwater rights were taken by a groundwater conservation district. If mediation fails, the case is scheduled to go back to a trial court on February 16. For the whole story of the Bragg case, see the extended write-up on the Laws and Regulations page.

Government Canyon may grow by 230 acres

On January 4, the Express-News reported a 230 acre tract known as Goodhorse Ranch may become the latest addition to Government Canyon State Natural Area. Though the deal is not yet final and would require city council approval, the city and Texas Parks and Wildlife Department are moving forward with purchase plans. This would be the latest acquisition under the city's Edwards Aquifer Protection Program, which is funded by a 1/8 cent sales tax that citizens have voted in favor of four times since 2000.

Government Canyon State Natural Area is currently about 12,000 acres and was the focus of the first major battle over the Edwards Aquifer in the early 1970s. For the complete story see A Water Quality History.