Title
Receive report from EAA staff related to metered and unpermitted withdrawals from the Edwards Aquifer and consider further enforcement action on a well owner who has failed to resolve unauthorized groundwater withdrawals, thus resulting in a violation of EAA rules.
Body
STAFF RECOMMENDED MOTION:
Move the board refer the matter related to Bohdi Partners, LLC, to general counsel to initiate formal enforcement actions, including taking action in district court.
SUMMARY
The purpose of this agenda item is for the board to receive a report from EAA staff regarding Edwards Aquifer well owners who make metered groundwater withdrawals from the Aquifer without first obtaining a groundwater withdrawal permit. EAA staff will discuss how well owners come into this situation, how their unpermitted groundwater withdrawals are resolved each year, and possible further enforcement on those well owners who fail to resolve their unauthorized groundwater withdrawals.
Background
EAA rules state that a person desiring to withdraw groundwater from the Aquifer (for non-exempt withdrawals) is required to obtain a groundwater withdrawal permit before commencing the withdrawals (see § 711.12) and that a person may not withdraw groundwater from the Aquifer unless authorized by a groundwater withdrawal permit (see § 711.224 (a)).
Edwards Aquifer well owners making non-exempt withdrawals from the Aquifer are required to maintain a meter on their well, and should obtain, by sale or lease, sufficient groundwater rights to meet annual needs. Such rights are required to be in place by the annual filing deadline of January 31 to reconcile pumping for the previous calendar year.
There are circumstances where well owners have metered their wells, but have not obtained any permitted rights, or failed to maintain leased rights on their wells. These situations most commonly occur when the property and well are sold to a new owner and the rights are retained by the seller, when a limited production well (LPW) loses its LPW status due to repeated over-pumping, when resolving an ‘unmetered well’ violation for a non-exempt well, or when a well owner no longer maintains a lease of withdrawal rights.
From a policy perspective, EAA has historically not taken enforcement action on non-exempt well owners for simply not obtaining or maintaining a groundwater withdrawal permit, so long as they maintain the meter on the well, report annual groundwater withdrawals, and resolve their annual groundwater withdrawals using the EAA’s ‘overpumping’ settlement approach as outlined in the Compliance Settlement Guidelines. During a review of 2023 ‘overpumping’ violations, EAA staff is processing 25 well owners for making groundwater withdrawals without any permitted rights assigned to their wells. These well owners ‘overpump’ from a zero-permit and must simply resolve their annual withdrawals using any of the settlement options available in the settlement guidelines.
EAA staff has identified one Edwards Aquifer well owner who has failed to resolve its unpermitted withdrawals over the past few years and has been unresponsive to EAA compliance outreach efforts. The following is a more detailed explanation of the violations of EAA rules.
Bohdi Partners, LLC
Bohdi Partners, LLC, is the owner of Edwards Aquifer well W100-481 located at 8611 New Laredo Highway in San Antonio, Texas. The well services the Lazy Acres Mobile Home Park of about 35 units situated on 14.450 acres of land. Bohdi Partners, LLC, acquired this property from IBG Enterprises, LLC, in December 2021, but did not transfer the associated EAA Permit P104-867 (0.553 acre-feet) that should have transferred with the land.
Since the sale of the property to Bohdi Partners, LLC, the new owner has failed to respond to annual use reporting requirements and has not responded to any correspondence seeking a final settlement to transfer the associated permit and resolve its unpermitted groundwater withdrawals. EAA records show that under this new ownership, total groundwater withdrawals during 2022 and 2023 were 7.938 acre-feet, 15.649 acre-feet, respectively.
On April 30, 2024, EAA staff mailed a Final Notice of EAA General Manager Settlement Offer for these years of unpermitted withdrawals and offered to settle all these matters by collecting back Aquifer Management Fees (AMFs) on those withdrawals made during 2022, and to resolve 2023 pumping by utilizing the overpumping settlement rate of $271.62 per acre-foot pumped. This settlement offer amounted to a payment of $4,870.92. EAA staff received no response to this notice. EAA staff mailed a second notice by Certified Mail on May 21, 2024, notifying them of possible discussion of this potential violation at the June 24 Permits/Enforcement Committee meeting and received no response.
Proposed Action
Since the well owner has failed to respond to EAA staff notices to settle the matter, and since efforts have been ongoing over multiple years, EAA staff recommends the EAA Board of Directors refer the matters to EAA General Counsel for further enforcement action.
STRATEGIC PLAN REFERENCE:
This agenda item helps build and/or create Assuredness in Regulatory Programming - a key objective in achieving the EAA’s goals identified in the 2021-30 Strategic Plan.
FISCAL IMPACT:
Initiating formal legal action will incur attorney's fees, which are included in the 2024 budget. Exact costs are unknown at this time. Attorney fees related to enforcement of EAA rules are recoverable under the EAA Act.