Production Permit Application – Electro Purification
UPDATE: Electro Purification LLC (EP) submitted a production permit application in July 2017. Their permit application was contested and it never reached the District’s Board of Directors for a decision. To date a production permit has not been issued and is not pumping from their wells. The District recently learned that EP has terminated their corporate existence. A full history of the permit is included below.
On July 13, 2017 Electro Purification submitted a Production Permit Application for 912.5 million gallons a year (2.5 MGD) to be produced from the Middle Trinity Aquifer for the purposes of Wholesale Public Water Supply. As of February 4, 2021 this application is no longer under review of an Administrative Law Judge (ALJ) within the State Office of Administrative Hearings (SOAH). On March 9, 2021 the General Manager issued a letter to EP returning the July 17, 2017 application of Electro Purification LLC and explaining that there is no further action that the GM intends to take in connection with the remand. – updated March 2021
Click here for latest activity and current schedule on this permit matter.
Click here for the latest case document filings on this permit (SOAH Docket No 957-18-4985)
Timeline
| 10/1/16-2/28/17 | Aquifer testing and data collection occurred from the period of October 2016 through February 2017. Previous information pertaining to the Electro Purification Test Well Application. |
| 7/13/17 | Electro Purification Submits 1) Production Permit Application (Contracts) 2) Hydrogeologic Report 3) Seven Well Modification Applications |
| 10/11/17 | Disitrict requests additional information from applicant: |
| 11/16/17 | Applicant submits information in response to 10/11/17 RFI: |
| 12/14/17 | Applicant submits revised additional information in response to 10/11/17 RFI: |
| 10/10/17 – 2/19/18 | District completes a series of evaluations of the applicant’s submitted hydrogeological report. These evaluations are compiled in the following three technical memos.
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| 2/20/18 | District provides EP with notice of the General Manager’s Preliminary Finding
District provides EP with notice and update on Well Modifications applications. |
| 3/21/2018 | Applicant submits proposed Compliance Monitoring Plans to District: |
| 3/30/2018 | District requests additional information from applicant on proposed compliance plans: |
| 4/13/18 | Applicant submits revised additional information in response to 3/30/18 RFI: *Note* per the District’s application requirements , the applicant has submitted these proposed plans for staff consideration. However, this plan does not reflect the District’s final review and recommendations. |
| 4/16/18 | INTERA Inc (3rd party geoscience/engineering consulting firm) on behalf of BSEACD, completes a technical memorandum summary that evaluates the potential effects of the proposed EP pumping on water levels.
INTERA Inc (3rd party geoscience/engineering consulting firm) on behalf of BSEACD/GMA 10, completes a Draft technical memorandum summary that documents the evaluation of potential of hydrogeologic impacts to the Trinity Aquifer. Technical Memorandum: Development of an Analytical Element Tool to Evaluate the Trinity Aquifer
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| 5/21/18 | The staff review of EP’s permit application package including additional submitted plans like the Compliance Monitoring Plan, Impact Avoidance Plan and Mitigation Plan, is administratively complete. The General Manager’s Statement of Position is a final staff review and permit recommendation that includes proposed special permit provisions. This document IS NOT a Board approved permit decision. |
| 6/3/18 | Electro Purification published public notice in the San Marcos Record on June 3, 2018.
Public comment period runs from 6/4/18 – 6/25/18. Comments or requests for a contested case hearing must be submitted to the District in writing by email, mail or hand delivery to 1124 Regal Row, Austin, Texas 78748; facsimile (512) 282-7016; or, e-mail bseacd@bseacd.org . |
| 6/18/18 | A public information meeting to review the permitting process, permit details and conditions was held on Monday, June 18 from 6-8pm at the Wimberley Community Center.
Information Session on Draft Permit for Electro Purification |
| 7/12/18 | During the 20-day comment period, the District received 12 requests for a contested case hearing and 312 comment letters on the Electro Purification permit application. Per the provisions of the Water Code, the applicant has the right to request that BSEACD refer all of the contested cases to SOAH, and EP has made this request. At its July 12 meeting, the Board of Directors unanimously approved the following procedural matters relating to this permit application. The Board’s motions:
The District expects the preliminary hearing to be held before the end of September 2018, which at that time the SOAH judge will determine the “parties” and a schedule for the hearing on the merits of the contested case. |
| 9/17/18 | Preliminary Hearing : Docket Number 957-18-4985.
10:00 am – September 17, 2018 300 W. 15th Street This application is currently under review of an Administrative Law Judge (ALJ) within the State Office of Administrative Hearings (SOAH). SOAH Docket #: 957-18-4985. Official Notice Here. At this Preliminary Hearing (9/17/18) the SOAH ALJ will determine which parties have standing, and will also set a procedural schedule (discovery, depositions, hearing) . A hearing on the merits of the application will likely not take place until the Spring of 2019. An ALJ serves as an independent, fact finding, administrative expert. At the end of the preceding the ALJ will issue a proposal for decision (PFD) to the BSEACD Board, and the Board will make the final decision on EP’s application. The BSEACD board can rule differently from the ALJ’s recommendation if they find that the ALJ incorrectly interpreted a law or did not take into account certain evidence. The Board will also consider all of the comments submitted by the public.
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| 3/4/19 | The parties, including the protestants, the District and the applicant, met in Austin for a SOAH ordered mediation. The parties were unable to reach agreement on any issues pertaining to the draft permit. The hearing is scheduled for September 19-27th. |
| 3/13/2019 | District completes an evaluation of potential unreasonable impacts from EP Phase 1 pumping: |
| 5/30/19 | On May 10, 2019, Electro Purification submitted seven well plugging applications to bring the seven existing test wells into compliance with state and Barton Springs Edwards Aquifer Conservation District (District) well construction standards for test wells. EP requested 4 of the test wells to be temporarily plugged at this time, and in the future if a production permit is issued by the District, the wells will be permanently re-completed as public water supply wells. The other 3 test wells will be permanently re-completed at this time and can serve as exempt and/or monitor wells. The plugging applications have been reviewed and have been determined to sufficiently address the information requirements in accordance with District Rule 3-1.4(A). Therefore, the applications are determined to be administratively complete and approved by the General Manager as of 5/29/2019. The applicant has until July 30, 2019 to commence well completion work on the seven wells; work is anticipated to begin on July 22, 2019. All seven test wells will be worked on and completed according to approved plans for temporary plugging or permanent re-completion. A temporary plugging is an alternative plugging procedure that uses gravel and cement caps rather than fully cemented boreholes. Alternative plugging methods are equally protective of the aquifers and are consistent with the District’s well construction standards.
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| 5/30/19 | June 2019 Revised Permit Recommendation (Special Provisions dated 5/30/19). After an attempted mediation in March 2019, stakeholder discussions, and additional staff research, District staff continued to move forward with improvements and revisions to the May 2018 GM Position Statement (draft permit and special provisions). |
| 6/12/19 | On June 12, the District submitted prefiled testimony in response to the applicant’s and the protestant’s previously filed testimonies. The State Office of Administrative Hearings posts submitted documents and decisions made by the Administrative Law Judge (ALJ) on their web portal. Use the Public Case File Search to search for Docket # 957-18-4985. Select the icon on the left to view the documents associated with the contested case. |
| 6/26/19 | On June 26, EP and TESPA asked to modify the hearing schedule to allow them to adjust their testimonies to address the updated special provisions. The District had no objection to the modified hearing schedule. On July 2, 2019, the ALJ granted the modified schedule, reset the prehearing conference to April 24, 2020 at 10:00 am, and reset the hearing on the merits to convene at 9:00 am on April 27, 2020 through May 5, 2020, at the State Office of Administrative Hearings, 300 W. 151h Street, Fourth Floor, Austin, Texas. |
| 9/25/19 | On September 25, 2019 the Protestants filed a Motion for Summary Disposition that asked the ALJs to dismiss EP’s Application on the basis that (1) the phase-in of production volumes should not be permitted without notice and an opportunity for a hearing and (2) the Application is not supported by reasonable non-speculative demand. Before responses to the Motion were due, EP requested and the ALJs granted a schedule abatement because the properties for which EP seeks a production permit are subject to a condemnation proceeding by Permian Highway Pipeline, which may result in EP withdrawing its application. The ALJs have set a deadline of November 22 for the parties to respond to the Motion for Summary Disposition and to propose a new schedule for the proceeding. |
| 3/31/20 | On 3/31/20 EP filed a motion before the ALJ to continue abatement until August 17, 2020. During the abatement Electro Purification (i) proposes to provide monthly status reports to the ALJs and the Parties on or before the first of each calendar month beginning May 1, 2020, and (ii) EP will pursue the adjudication of rights, remedies and damages in the Courts in Hays County in Cause Nos. 19-0896-C and 19-1060-C to determine whether any of the seven wells on the Bridges and Odell Leaseholds relied upon as the foundation for EP’s Permit recommended by the District and the subject of this SOAH Proceeding will have to be relocated and a modified application filed with the District. |
| 5/1/20 | On May 1, 2020, EP submitted an abatement report to the parties and SOAH. The report described that on March 12, 2020, EP had secured a temporary restraining order that precluded Kinder Morgan (KM) from conducting any operations on the EP groundwater leases that could impair or damage the EP wells. On April 21-22, 2020, the Hays County Court conducted a video remote hearing to consider granting a temporary injunction on the KM pipeline activities in the EP easements. Ultimately, KM requested that the courts abate the proceedings so that they could file pleadings to condemn the interests of the EP groundwater leases and to secure possession over those rights as necessary for KM to construct their pipeline project. On April 25, 2020, KM filed condemnation actions against EP which in effect has mooted and dissolved the EP temporary restraining order. The next steps are for KM and EP to set a hearing date for the court to determine the amount of money to be paid into the court to compensate EP. In the interim, between now and the condemnation payout hearing, EP and KM have agreed to enter into settlement discussions. The abatement will continue, with the next report due in June 2020. |
| 6/1/20 | On June 1, 2020, EP submitted an abatement report to the parties and SOAH. The report described that since the May 1st Abatement Status Report, EP and Kinder Morgan initiated both informal settlement discussions and conducted a formal mediation on May 26, 2020, in an effort to address issues related to the threat the pipeline project posed to the ability of EP to implement its proposed groundwater supply project. On May 26th, the formal mediation concluded with a “Mediator’s Proposal for Settlement” to the Parties. Following the presentation of the Mediator’s Proposal to both sides, the Mediator “continued” the mediation to give the Parties the opportunity to consider with their principals the settlement proposal presented, as well as resolve several additional pending issues in the settlement discussion. As of June 1st, the mediation remains in a “continued” status. |
| 7/1/2020 | On July 1, 2020, EP submitted an abatement report to the parties and SOAH. Since the June 1, Abatement Status Report, EP and Kinder Morgan continued negotiation of terms and conditions for settlement of disputed issues between the Parties, the resolution of which would facilitate EP’s ability to move forward with its pending groundwater production permit application pending in the SOAH Docket. EP believes that the terms and conditions of a settlement have been developed and assuming the proposed settlement is acceptable to the management of all affected Parties, the Confidential Settlement Agreement can be executed and, thereafter, be implemented. Timing of when review and approval can be accomplished is uncertain due to response times of Kinder Morgan’s legal team. As of July 1, EP has requested an additional abatement of one month. The current abatement is scheduled to end July 17 and they have asked for an extension to August 17. |
| 7/17/2020 | The ALJ granted EP’s motion to further abate the matter until August 17, 2020 and denied the Protestants motion to dismiss the matter. |
| 8/3/2020 | EP and Kinder Morgan are finalizing the terms and conditions for a settlement. EP is confident that the dismissal of the KM and EP case will be dismissed by the 17th of August. Once the settlement between EP and KM is concluded, EP will continue to pursue its pending groundwater production permit application on the SOAH Docket. |
| 8/17/2020 | EP Abatement Ends |
| 8//28/2020 | SOAH issues New Schedule for Hearing. Order 14 (SOAH Schedule) |
| 8/31/2020 | EP filed a supplemental prefiled testimony. (SOAH Docket No 957-18-4985) |
| 11/4/2020 | Deadline for Protestants (except Commissioner Lon Shell) to supplement prefiled testimony |
| 11/18/2020 | Deadline for Protestant Hays County to supplement prefiled testimony of Commissioner Lon Shell |
| 12/21/2020 | Revised GM Position Statement (December 2020). This GM Position Statement was submitted with the District’s pre-filed testimony on 12/21/2020. |
| 1/11/2021 | EP filed a Notice of Nonsuit and request to the ALJ remand the application back to the District. |
| 1/15/2021 | The District filed a response to the applicant’s Notice of Nonsuit and requested that the ALJs find that with a nonsuit, that EP has withdrawn the application. |
| 1/25/2021 | EP filed a response disagreeing with the District’s request that the ALJs find the application withdrawn. |
| 2/4/2021 | The ALJs responded to the Notice of Nonsuit, dismissing the EP matter from SOAH proceedings and remanded the matter back to the District. The original hearing on the merits will no longer be set for April 2021. |
| 3/9/2021 | The General Manager issued a letter to EP returning the July 17, 2017 application of Electro Purification LLC and explaining that there is no further action that the GM intends to take in connection with the remand. |
| 3/10/2021 | The applicant, EP, responded to the GM’s 3/9 letter (3/10), stating that the they interpret the EP application to be active and necessitating Board Action. |
| 3/17/2021 | The applicant, EP, provided a follow-up letter (3/17) requesting a meeting with the GM and restating that they have neither withdrawn the application nor requested it to be dismissed. |
| 11/2022 | Electro Purification LLC (EP) submitted a production permit application in July 2017. Their permit application was contested and it never reached the District’s Board of Directors for a decision. To date a production permit has not been issued and is not pumping from their wells. The District recently learned that EP has terminated their corporate existence. |