Watershed Newsletter
The Wimberley Valley Watershed Association

Protecting Jacob's Well and the Springs of the Wimberley Valley

Saving Cypress Creek

By Jack Hollon,
Vice President, Wimberley Valley Watershed Association

Over the past several months, the lawsuit filed by Wimberley Valley Watershed Association and other concerned citizens challenging pumping permit #168 for a golf course development that was approved by the Hays Trinity Groundwater Conservation District (HTGCD) on Feb 21, 2011, has been brought up several at the Hays Commissioners Court and at HTGCD meetings.  The permit was granted to Wimberley Springs Partners (WSP), developers in the Woodcreek North area of the Cypress Creek Watershed above Jacob’s Well.  The three year permit allows for 250 acre feet of water to be pumped from the aquifer annually in order to install a new golf course.  The permit allows for a one year boost to 500 acre feet under certain rainfall conditions.  These conditions would have technically allowed for increased 'bonus' pumping in the drought year of 2011.

The relationship between pumping in this area and spring flow to the Creek at Jacob’s Well is firmly established.  During dry years, the impact of such pumping on creek flow is severe. In 2011, Jacob’s Well ceased to flow altogether and long stretches of Cypress Creek went dry.  Occasional pulses of water to the creek were seen when there was a pause in pumping of the Aqua Texas wells in the same area.

The importance of a healthy creek to the Wimberley and Woodcreek communities is not the issue.  Blue Hole Regional Park, the Valley’s economy, property values, and quality of life are all at stake.

How can we put the quantity of water in the permit into context?  Three comparisons of water usage:
*         The 81 million gallons of water in the proposed permit is about 45% (almost half) of what Wimberley Water Supply Corp pumped in the entire year 2010 to serve its 1,675 customers – some of which are large accounts, like the public schools and Deer Creek Nursing Center.
*         Stream flow is measured in cubic feet of water flowing per second (cfs).  Two hundred fifty acre feet will supply one cubic foot per second of flow to Cypress Creek for over four months.  There have been times in recent years when we are very happy to have even one cfs flow in Cypress Creek. Average flow from Jacob’s Well to Cypress Creek historically is seven cubic feet per second.

*         250 acre feet will supply 5000 homes with 45 gallons of water to each home every day for a year.  That is a typical usage rate for about two people on rainwater, “being conservative – but not miserly,” as families with rainwater systems in Wimberley report.

Therefore, it is clear that 250 acre feet is an extraordinarily large  quantity of water, most especially  when water is scarce, demand is growing, and the aquifer is declining.  It has been shown in recent studies that the region is already pumping more from the Trinity Aquifer than annually recharges in rainfall. In other words, we are mining the Trinity Aquifer at current pumping rates and depleting the supply.  This resource is of very high quality; it requires little treatment by water supply companies and no treatment by many private well owners.  Suddenly, the idea of spraying drinking water onto an undeveloped golf course – an advertising attraction for more development – does not qualify as a high priority use to most citizens.

That is where the HTGCD comes in.  Local citizens confirmed the continued operation of the HTGCD by a vote of 2 to 1 in May 2003, “…to promote conservation, preservation, recharge and prevention of groundwater waste within western Hays County … and to ensure that groundwater is used efficiently and at sustainable rates.”  (From the HTGCD Mission Statement)

When a for profit company such as WSP requests a permit to pump non-exempt groundwater, HTGCD rules require that the District  must first make an initial determination of a proposed course of action.  Thus, on 2/21/11, the matter came up for the Board’s first consideration of the WSP permit application.  A large audience gathered in Dripping Springs to listen and learn and/or to speak on the permit.  A large majority of those who spoke during the public comment time argued against the application, but when the hearing ended, the Board immediately voted 3 to 2 to grant a permit, without having first made a determination of a proposed course of action or requiring a pump test to determine impact on other wells and Cypress Creek.   The three directors in places 1, 2, and 3, along the Hwy 290 corridor, voted “yes.”  The directors in places 4 and 5, representing Woodcreek and Wimberley – the areas most affected by the proposed pumping – voted “No.” 

Texas State law and HTGCD Rules allow those who oppose the permit application  to request a “Contested Case Hearing” – a formal proceeding that may be conducted before the Board itself or before a State hearings officer who acts as a judge.  Therefore, within ten days after the Board’s initial February 21 action on the application, and in timely fashion in accordance with the Board’s consistent interpretation of its own Rules, ten parties including the WVWA filed formal written requests for a contested case hearing on the matter.  Thereafter, on April 7, 2011, in a highly capricious and arbitrary ruling negating its own prior Notice and Agenda, and reversing all of its prior actions, rules interpretations and communications, the HTGCD Board, by the same split 3 -2 vote, declared that Plaintiffs’requests were untimely and denied Wimberley citizens any opportunity for a contested case hearing on the WSP application. 

In other words, the HTGCD Board majority waited until April 7, 2011, after the newly-proclaimed deadline had passed, to RE-INTERPRET its Rules and declare ex post facto that Plaintiffs deadline for submitting formal request for CCH occurred during the February 21 meeting, thereby denying the requesters any opportunity for a contested case hearing. 
Those of us who had requested the Contested Case Hearing were stunned – up against a wall with only two choices:  We either give up and watch the further decline of the aquifer and the Creek and lose historic spring flow to a golf course development, or we appeal to court to seek reversal of the Board ruling. The only possible decision was to continue our quest for a Contested Case Hearing on the WSP application.   
Our lawsuit is simply an appeal seeking reversal of the HTGCD Board ruling.  We seek to have the Court send the matter back to the HTGCD to conduct a contested case hearing on the WSP application.
 A totally erroneous claim  has been made at public meetings that the County is paying legal expenses for the WVWA in the lawsuit.   WVWA is only one of six Wimberley parties who are sharing in the cost of the appeal.  WVWA’s share of the appeal costs comes strictly from donor contributions. Absolutely none of the appeal expenditures have come from Hays County.  

WVWA  does have one other extraordinary resource in  Malcolm Harris, an attorney with long-time family ties to Wimberley, a home on Cypress Creek, and a legal practice mainly in Austin.  Malcolm is providing expert legal services – pro bono.  He has long been on the board of WVWA and is now serving as Board President.  We are indeed blessed by such generosity and dedication to stewardship for Cypress Creek.  

Funds from the County Parks and Open Space Bond Fund have been and continue to be carefully directed to pay only for land acquisition and operations and maintenance for the Jacob’s Well Natural Area, which is now owned by Hays County.  With the public investment in Jacob’s Well and Blue Hole, and the property values and economic future of the Wimberley Valley at stake, the WVWA and the concerned citizens are fighting to protect the property rights and best interest of our community.  We urge everyone who cares about water and the economic future of the  Wimberley Valley to join us by making a tax deductible contribution online at www.wimberleywatershed.org or mailing your donation to the Wimberley Valley Watershed Association at  PO. Box 2534 Wimberley Texas, 78676.
Jack Hollon, WVWA Vice President, Wimberley TX.