LIV-Indy News Exclusive: The City of Austin Could Use Eminent Domain to Force Risky Aquifer Storage in Bastrop and Lee counties
"The Power" by SNAP
In this article:
Summary: The City of Austin is scoping out the viability of a plan to inject captured excess surface water allocated to the City into aquifers underlying Bastrop, Lee, and Travis counties. It’s called Aquifer Storage and Recovery (ASR). There is no apparent benefit to the people who live in Bastrop and Lee counties, nor to our local governments and businesses. In fact, there are real risks of aquifer contamination. To boot, the City can use its power to convert private property to public use (the power of eminent domain) through the process of condemnation, if necessary, even outside their jurisdiction. (Local Govt. Code Chapter 251.)
Background: Project engineers from Austin Water, the City’s water utility, spoke to the Lost Pines Groundwater Conservation District last Wednesday night. Their talk came after three community forums held previously in Lee and Bastrop counties. The City’s plan for ASR is in its infancy, but already the “natives are restless.” Several citizens spoke about the risks to the aquifers, the potential use of eminent domain to seize hundreds, if not thousands of acres of private land, and potential contamination. The sole authority to permit ASR projects, the Texas Commission on Environmental Quality (TCEQ), has been accused of non-enforcement of federal clean water and air law. See LIVTX.org news published on February 10.
“Now they [Austin Water] claim that they’ll never take out more water than they put in it. Sounds good. But the city of Austin has a long history of doing everything it can to bring more people. More people, more water use. Now the standard prediction with climate change is we’re going to get drier...The question is what’s in this for us, and what guarantees do we have that our needs will come first?” Hugh Brown, Lee County well owner, in public comments to Lost Pines Board, 2/15/23
The Risks to Aquifers
Aquifer Storage and Recovery – ASR – projects are already established in San Antonio, El Paso, and Kerrville. ASR projects are being touted in California and Arizona as a saving grace for intransigent drought and vast over-pumping of groundwater that hits the news almost daily.
According to a scientific paper, “The Fragile Future of ASR,” one-fourth of the projects fail because they’re risky. They’re risky because:
ASR projects have challenges related to both the type and quality of injected water and the geology of the aquifer itself, including the potential introduction of pathogens (harmful bacteria and viruses) into the aquifer; development of disinfectant byproducts that may contaminate the aquifer; and
release of undesirable elements like arsenic into the groundwater; and clogging of wells from chemical reactions, all of which risk permanent damage to the aquifer. See, for example, this EPA publication. Also, injected water has sometimes migrated out of the confined area of the aquifer due to unknown subterranean fractures and faults, causing loss of injected water into adjacent aquifer formations and into local drinking water supplies.
No Local Control, Eminent Domain Abuse
Texas county governments have no power to regulate ASR projects under current law, and groundwater conservation districts have very limited regulatory authority over ASR projects.
Austin’s ASR project reportedly would require City control of hundreds of acres of rural property, in addition to a pipeline route to deliver and recover injected water, all of which, if necessary, could be acquired by eminent domain, in accordance with Chapter 251 of the Texas Local Government Code;
The proposed ASR project is believed by many citizens of Bastrop and Lee counties to entail significant potential harm to essential groundwater resources and private property rights without any apparent compensatory benefit to them.
The cost estimated for this project shared in an email from Austin Water is as follows:
The ASR costs for Austin Water were originally developed as part of the 2018 Water Forward Plan, Austin’s integrated water resource plan. The cost for ASR as estimated in the 2018 plan was approximately $367M. However, we will be developing updated cost estimates for ASR as we continue the location evaluation process, and expect the cost estimate to increase significantly due to inflation since the original 2018 numbers were developed and a better understanding of the project needs.
Who's Got the Power?
TCEQ has sole power and discretion to issue a permit for the project, including through the issuance of a letter of authorization (“authorization by rule”) for ASR projects without notifying anyone except our groundwater district and without allowing public comment.
It’s hard to believe, but under Texas law, any individual or entity can apply for a TCEQ letter of authorization for an ASR project. And there is no limit to the size of their projects!
Here’s the clincher.
Government entities with eminent domain power may condemn property for these projects even outside their jurisdiction. So far, the City has merely acknowledged this power without saying whether the City is willing to resort to condemnation.
Though the project must abide by the federal Safe Drinking Water Act, it is not unreasonable to ask if anyone is listening who really “counts” in today’s political quagmire. Just ask yourself what has the TCEQ or Railroad Commission done to protect our drinking water in light of the 100,000 uncapped oil and gas wells that pose a clear and present danger to contamination of groundwater, the main source of our drinking water.
Check out the results of this very recently released survey by Texas Water Trade, the CEO of which is a trusted water protection ally, Sharlene Leurig, carried in the Texas Tribune here.
Who's got the REAL power?
"The truth is our Texas Legislators, the City of Austin, and, therefore, YOU have the real power. Will our officials use their power for the good of Texas? Not if you don’t.” LIV Board member, Austin resident, and longtime tenant rights advocate David Jones.
Your Texas legislators have the power to enact laws that govern the TCEQ and the Railroad Commission. In fact, the TCEQ is under Sunset Review (see the Sunset Report to the 88th Legislature here). ASR is not mentioned in the report. So far, we see no legislation introduced in this current legislative session about ASR.
The most powerful people in the equation are these officials – call 'em!
State Senator Charles Schwertner (R-Georgetown) represents Bastrop County and chairs the Sunset Commission. Call 512.463.0105.
State Senator Lois Kolkhorst represents Lee County. Call 512.463.0118
State Representative Stan Gerdes represents Lee and Bastrop counties. Call 512.463.0682
Austin Mayor Kirk Watson, formerly Bastrop’s State Senator. Call 512.978.2100
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