Mary K. Sahs 2015-08-25 11:36:43
In the water law legislative arena, the continuing drought has shifted the emphasis from traditional sources of water supply to those generally referred to as “innovative technology.” Desalination is addressed in a number of bills. Aquifer storage and recovery received comprehensive treatment. Personal use of gray water also moved forward. This article summarizes some of the major bills of general applicability affecting Texas water resources enacted into law by the 84th regular session. It does not attempt to cover all water bills from the session. Desalination The state moved forward with the use of desalted water as a source of supply, through desalination of brackish groundwater and seawater. For the first time, regional and state water planning must address “opportunities for and the benefits of developing large-scale desalination facilities for seawater or brackish groundwater ...” Additionally, the Texas Water Development Board’s biennial progress report on desalination of seawater is expanded to include desalination of brackish groundwater. See HB 30. Groundwater conservation districts under Water Code Chapter 36 manage the state’s groundwater. The extent to which that authority and responsibility extends to brackish or salty groundwater has been an open question. The Legislature provides a partial answer in HB 30 by establishing a process to designate “brackish groundwater production zones,” which arguably will be managed separately from fresh groundwater. The act aims to incentivize the development of brackish groundwater “in areas where that development would have a minimal impact on existing fresh groundwater use …” The TWDB must designate such zones to reduce the use of fresh groundwater. Protection of freshwater aquifers must be of paramount concern. The bill limits designation based on geology and hydrology, salinity, proximity to wastewater injection disposal wells, location in the Edwards Aquifer Authority and the state’s two subsidence districts, and locations where slightly saline groundwater is a significant source of water supply. The act amends Water Code Chapter 16. One impediment to widespread use of desalinated water is disposal of the brine, or concentrate, generated by desalting brackish groundwater. The concentrate is often disposed of by injecting it into wastewater disposal wells. In recent years, some of the regulatory hurdles making injection an expensive disposal method have been reduced. HB 2230, adding Water Code Section 27.026, continues that trend by expanding the types of regulated underground injection disposal wells that can be used for that purpose. HB 2031 adds Chapter 18 to the Water Code to consolidate and streamline seawater desalination project permitting and regulatory requirements, such as water rights and wastewater discharge permits, and drinking water standards when applicable. Among other provisions, the new chapter directs the Parks and Wildlife Department and the General Land Office to identify in the Gulf of Mexico zones that are appropriate, taking into account protection of marine organisms, for the diversion of seawater and for the discharge of brine from the desalination. The new chapter also authorizes bed and banks conveyance of certain treated marine seawater. HB 4097 addresses the use of seawater for desalination and for industrial use by adding Section 11.1405 to the Water Code and amends Utilities Code Chapter 39 to require that the Public Utility Commission study the adequacy of existing infrastructure for seawater desalination projects and the potential for such projects to participate in the electric power market. Aquifer Storage and Recovery In the simplest terms, aquifer storage and recovery is a process by which water is injected into an underground aquifer for storage and later withdrawn for beneficial use. Several state statutory and regulatory programs apply to such a project. Additionally, a project could be under the jurisdiction of a groundwater conservation district. HB 655 is intended to streamline and simplify the permitting process and to clarify the roles of the Texas Commission on Environmental Quality and GCDs. Under HB 655, an entity with a water right permit or contract for surface water may use ASR to store the water without obtaining additional water rights authorization from the TCEQ. HB 655 also allows the TCEQ to issue water rights contingent on water being available during wetter years with higher river flows, thus allowing those “excess” flows to be stored using ASR. In some instances, the source water is groundwater that has been transported to the ASR facility for injection into the underground reservoir. Under HB 655, any groundwater source, if located within a GCD, must follow the production and permitting rules of that GCD. The actual ASR injection and recovery wells, if located in a GCD, must be registered with the district and the operator of the wells must report injection and withdrawal volumes to the GCD. A GCD may not require permits for such wells nor are such wells subject to the district’s spacing and production requirements or assessment of fees as long as the recovery volume does not exceed the injection volume. As clarified by HB 655, the TCEQ has exclusive jurisdiction over the regulation and permitting of ASR injection wells. Groundwater Regulation The use of groundwater as a water supply source continues to be the focus of legislation. Groundwater has become increasingly regulated by GCDs because it is the only water source for a large part of Texas, is an alternate source for areas where surface water resources are dwindling, and is an often less-expensive source for all uses. This session, similar to all sessions since the end of the 1990s, the Legislature passed numerous bills addressing GCD regulation. Designed to streamline processes and provide greater predictability about groundwater production permits, HB 2179 changes the contested case process and SB 854 streamlines the permit renewal process. For example, HB 2179 amends Water Code 36, Subchapter M to clarify that a GCD may act on uncontested permit applications at a public meeting; introduces a method for apportioning costs among parties to a contested case conducted by the State Office of Administrative Hearings; and revises the requirements related to a district’s final decision after a contested case hearing. SB 854 requires renewal of a production permit without a hearing as long as the renewal does not include a request for a permit amendment that otherwise would require a hearing. The availability of groundwater to meet water supply needs is addressed in a Water Code Chapter 36 process involving regional water planning, euphemistically called the groundwater management area joint planning process. The water availability related decisions made during this process, particularly the desired future conditions, are often disputed. HB 200 establishes a process by which an affected person may initiate a contested case hearing, which will be heard by SOAH. The GCD may accept, amend, or reject the proposal for decision issued by SOAH. The district’s final decision is appealable to the local state district court. Practitioners interested in groundwater law should also see HB 2767, HB 3163, and HB 4112. Protecting and Conserving Water Resources A handful of bills address protecting and conserving water resources. For example, HB 930 amends the Occupations Code, primarily to restore the Department of Licensing and Regulation apprentice programs for water well drillers and pump installers. HB 1902 amends Health and Safety Code Section 341.039 so that the TCEQ may impose minimum standards for the use of gray water, designed to prevent contamination of the potable water supply. Under SB 912, certain spills at local government-owned wastewater treatment facilities are exempt from TCEQ reporting requirements. To be exempt, the spill must be no more than 1,000 gallons and controlled to prevent entering state streams and to protect water supply sources, the public, and the environment. Codified in Chapter 26 of the Water Code. For more on this subject, see SB 1356 (sales tax exemption for water-efficient products), HB 3264 (enforcing domestic wastewater treatment facility permits), SB 551 (Water Conservation Advisory Council), HB 949 (mitigation of water utility system water loss), and HB 1146 (water system operator licensing). Water Utilities SB 1148 amends Chapters 5 and 13 of the Water Code to address issues that have arisen due to the transfer of the rate and certificate of convenience and necessity programs from the TCEQ to the PUC. One of the principle changes is to add Subchapter K-1 to Chapter 13, establishing the PUC’s emergency order authority and procedures. Surface Reservoirs Few sites remain on Texas rivers and streams for construction of new surface water reservoirs. The conflicting interests of preserving the ecology of those water bodies and increasing the state’s water supply are reflected in legislation from this session. HB 1016 classifies segments of the Nueces, Frio, Sabinal, San Marcos, and Comal rivers as being of unique ecological value, thus generally prohibiting public construction of reservoirs. In HB 1042, the site of the proposed Ringgold Reservoir on the Little Wichita River is designated as having unique value for the construction of a reservoir.
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