A historic ruling by the state’s environmental agency has made it official: the San Antonio Water System will take ownership from the state of Texas for billions of gallons of treated wastewater the utility releases into the San Antonio River every year.
On Wednesday, the Texas Commission on Environmental Quality verbally issued a final ruling on SAWS’ decade-old request to retain its rights to the treated wastewater that the utility releases into the San Antonio River. The agency’s three commissioners ruled in favor of SAWS, 3-0, granting SAWS a permit to retain its rights over the released water, without conditions.
That’s despite the fact that five months ago, two administrative state judges recommended giving SAWS ownership of the water, with the condition that the municipal utility can offer protections for downstream users who say they depend on that water. These users — the Guadalupe-Blanco River Authority and chemical company Union Carbide — have been fighting the utility’s claim to the water since 2014.
The ruling is a first of its kind due to its magnitude, said Jennifer Windscheffel, SAWS’ senior corporate counsel. While there have been so-called “bed and banks” permits issued in Texas before, they’ve never been for such a large amount of water, she said.
The ruling, which SAWS President and CEO Robert Puente laid the groundwork for in the late 1990s as a legislator, is “very, very rewarding,” he told reporters Thursday.
The ruling “is the confirmation … that the investments that our ratepayers make in the water that we acquire for them, which is mostly groundwater, is still owned [by SAWS] after they’re done using it,” Puente said.
The utility wants to safeguard a good part of that water — at least 50,000 acre-feet of it per year — to ensure it reaches ecosystems in the San Antonio Bay and nearby estuaries near the Gulf Coast, Puente said. An acre-foot is roughly 326,000 gallons — enough water to supply two average households for a year.
SAWS plans to divert another 50,000 acre-feet of the water for CPS Energy to use at its power plants and to put an additional 25,000 acre-feet to use in its recycled water system, said Donovan Burton, vice president of water resources and governmental relations for SAWS.
Under the new ruling, SAWS is guaranteed access to as much as 260,991 acre-feet per year, but currently, only has plans to use 125,000 acre-feet.
The ruling also reaffirms that the Guadalupe-Blanco River Authority and Union Carbide’s permits are not issued in reliance of SAWS discharged treated groundwater, Burton said.
“Whatever their permits are, they are not impacted by our permit so they have whatever they have based on [other factors]” he said. “This is really just about getting water into the river.”
Decades in the making
SAWS first applied to the Texas Commission on Environmental Quality in 2013 for a permit that would allow the water utility to claim up to 260,991 acre-feet per year of treated wastewater it puts into the San Antonio River.
Historically, that water belonged to the state as soon as it left SAWS’ pipes. SAWS has discharged about 141,430 acre-feet per year for the last five years into the San Antonio River from the Steven M. Clouse plant, according to the permit application.
In Texas, different legal frameworks apply to groundwater and surface water. Surface water belongs to the state; distributors are given access to use so many gallons of it. By contrast, groundwater in Texas is owned by the landowner who owns the ground it came out of or someone granted those rights.
However the groundwork for the permit goes back even further than that, SAWS staff said Thursday.
They credited Puente for laying the legal groundwork for the permit. During his time as a state legislator, Puente introduced an amendment to Senate Bill 1, which created 16 regional water planning areas that were each required to adopt a regional water plan by January 5, 2001 and every five years after that; and Senate Bill 3, which ordered regional entities to determine environmental flow standards for all of the major river basins and bay systems in Texas.
“This was a big issue in the water world in 1997: What is the nature of this water? How are we going to characterize it, when it’s [groundwater that is] discharged into the river?” Windshuffel said. “Mr. Puente had a vision for what happens to that water when it is discharged into the rivers and streams.”
Burton said these flows will be particularly important during periods of drought.
“It does give assurance to the bays and estuaries, the tourism industry and the fishing industry that they will have that necessary mix of freshwater and saltwater,” Puente added.
GBRA’s response to the ruling
Authorities from the Guadalupe-Blanco River Authority were less than thrilled with the ruling.
The GBRA regulates water from the Guadalupe Basin across 10 counties; more than 350,000 Texas residents utilize GBRA’s water and wastewater operations. The GBRA has formerly said SAWS effluent helps keep the lower Guadalupe River Basin from being completely empty during drought.
“The TCEQ ruling is disappointing because it disregards the record evidence and relevant law, undermining the reliability of GBRA’s senior water rights in the Lower Basin and, ultimately, the water for GBRA’s customers, which include small and medium-sized municipalities,” said the GBRA’s external legal counsel Samia Broadaway, a partner at Baker Botts L.L.P.
Broadaway said this decision “rewrites Texas law,” including the legislature’s decision on a 1997 statute, and “threatens to have a ripple effect throughout the entire Guadalupe-San Antonio Basin and beyond.”
The GBRA is exploring all options to address this decision, including a judicial appeal, she said.
Puente noted that the ruling immediately prohibits others from trying to get the 50,000 acre-feet and immediately provides protections for the river, there are legal actions GBRA and Union Carbide can take to try to halt the permit from going into full effect, such as asking the TCEQ for a rehearing or appealing the decision to a district court.
SAWS is likely looking at another three to four months to “have an actual final permit,” Windscheffel said.
Correction: This story has been updated to correctly refer to Puente’s Senate amendment and the number of months until a final permit.
