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Legal and Institutional Issues Legal and Institutional Issues Affecting Aquifer Storage Affecting Aquifer Storage
Recovery in Texas Recovery in Texas
Edmond R. McCarthy, Jr.Edmond R. McCarthy, Jr.Jackson, Sjoberg, McCarthy & Wilson LLPJackson, Sjoberg, McCarthy & Wilson LLP
www.jsmwlaw.comwww.jsmwlaw.com
What Is ASR?What Is ASR?
Injection of water into an aquifer through a Injection of water into an aquifer through a well bore for temporary storage and, well bore for temporary storage and, subsequently, recovering the water subsequently, recovering the water through the same or an other well bore.through the same or an other well bore.
Hybrid – using a settling basin to allow the Hybrid – using a settling basin to allow the water to percolate into the aquifer for water to percolate into the aquifer for temporary storage and, subsequently, temporary storage and, subsequently, recovering the water through a well bore.recovering the water through a well bore.
Current Texas Law does not Current Texas Law does not define “ASR”define “ASR”
Related Texas’ “legal definitions”Related Texas’ “legal definitions”
30 TAC §297.1(5) Aquifer Storage and Retrieval Project - A project with two phases that anticipates the use of a Class V aquifer storage well, as defined in '331.2 of this title (relating to Definitions), for injection into a geologic formation, group of formations, or part of a formation that is capable of underground storage of appropriated surface water for subsequent retrieval and beneficial use. …
30 TAC § 331.2(8) Aquifer storage well--A Class V injection well used for the injection of water into a geologic formation, group of formations, or part of a formation that is capable of underground storage of water for later retrieval and beneficial use.
ASR vs. Aquifer RechargeASR vs. Aquifer Recharge
““Intent” is the critical distinction betweenIntent” is the critical distinction between
Intent to “Store” vs. Intent to “Recharge”Intent to “Store” vs. Intent to “Recharge”
Storage contemplates plans to recover Storage contemplates plans to recover
the injected water for beneficial usethe injected water for beneficial use
Recharge may or may not include plans Recharge may or may not include plans
to recover and beneficially use the water to recover and beneficially use the water
Why ASR vs. Alternatives?Why ASR vs. Alternatives?
ConservationConservation New Reservoirs New Reservoirs GroundwaterGroundwater ReuseReuse Cloud SeedingCloud Seeding Out of state importationOut of state importation DesalinationDesalination
Legal History of ASR in TexasLegal History of ASR in Texas
Late 1980s UGRA files for ASR “storage”Late 1980s UGRA files for ASR “storage”
1995 – Court of Appeals upholds UGRA 1995 – Court of Appeals upholds UGRA permitpermit
1995 – Legislature enacts HB 1989 1995 – Legislature enacts HB 1989 codifying the use of ASR for surface watercodifying the use of ASR for surface water
UGRA‘s PermitUGRA‘s Permit
Large conventional reservoirLarge conventional reservoir Substantial impacts to Hill Country habitatSubstantial impacts to Hill Country habitat Significant permitting & construction timeSignificant permitting & construction time Substantial cost - $35M (1990 dollars)Substantial cost - $35M (1990 dollars) ASR – 1 acre pad siteASR – 1 acre pad site ASR – minimal impact to habitatASR – minimal impact to habitat ASR – 5 years including court appealsASR – 5 years including court appeals ASR – $7M including court appeals ASR – $7M including court appeals
Court decision – key pointsCourt decision – key points- ASR storage incidental to beneficial useASR storage incidental to beneficial use- Change in character/Ownership issues do Change in character/Ownership issues do
not effect beneficial usenot effect beneficial use- Inability to control water not an automatic Inability to control water not an automatic
flaw if recoverability can be shownflaw if recoverability can be shown- City ordinance and well location helpedCity ordinance and well location helped- Evidence demonstrated beneficial use Evidence demonstrated beneficial use
possiblepossible- Water is “fungible” – same molecule ruleWater is “fungible” – same molecule rule
HB 1989HB 1989- Authorized surface water to be stored Authorized surface water to be stored
using ASR (Texas Water Code using ASR (Texas Water Code §§11.153-§§11.153-11.155)11.155)
- Encouraged “pilot projects” around the Encouraged “pilot projects” around the statestate
- Required compliance with affected GCDRequired compliance with affected GCD- Required cooperation with affected GCDRequired cooperation with affected GCD- Required any agreement with GCD to be Required any agreement with GCD to be
incorporated into water rights permitincorporated into water rights permit
Legal Status of ASR in TexasLegal Status of ASR in Texas
Surface water storage using ASR authorizedSurface water storage using ASR authorizedGroundwater storage using ASR authorizedGroundwater storage using ASR authorized
Either type storage requires:Either type storage requires:
- UIC Compliance – Class V Injection - UIC Compliance – Class V Injection WellsWells - GCD Compliance (where applicable)- GCD Compliance (where applicable)
Legal Constraints in TexasLegal Constraints in Texas
Which set of “Water Laws” apply?Which set of “Water Laws” apply?
- Surface Water – Chapter 11, Water Code- Surface Water – Chapter 11, Water Code
- Groundwater – Chapter 36, Water Code- Groundwater – Chapter 36, Water Code
- A combination of both- A combination of both
Key Legal IssuesKey Legal Issues(Where Surface or Groundwater Related)(Where Surface or Groundwater Related)
OwnershipOwnership Rule of CaptureRule of Capture
ProtectionProtection Rule of Capture/GCD Rules/Self-helpRule of Capture/GCD Rules/Self-help
RecoverabilityRecoverability Waste/Economic LossWaste/Economic Loss
LiabilityLiability Trespass/PollutionTrespass/Pollution
Surface Water Related Legal Surface Water Related Legal IssuesIssues
State owned surface water requires a permit State owned surface water requires a permit or or an amendment:an amendment:
- Regular Permit - §11.121- Regular Permit - §11.121
- Seasonal Permit - §11.137- Seasonal Permit - §11.137
- Temporary Permit - §11.138- Temporary Permit - §11.138
- Term Permit - §11.1381- Term Permit - §11.1381 Ownership & Protection (condemnation power)Ownership & Protection (condemnation power) Scalping/Over drafting IssuesScalping/Over drafting Issues
Groundwater Related Legal IssuesGroundwater Related Legal Issues
GCD jurisdiction – comply with rulesGCD jurisdiction – comply with rules Permits to producePermits to produce Permits to injectPermits to inject Permits to recoverPermits to recover SpacingSpacing Storage & % Recovery (“toll” provisions)Storage & % Recovery (“toll” provisions) Protection by GCDProtection by GCD Ownership Ownership
Recommendations - Legal Recommendations - Legal Authorizes “scalping” permitsAuthorizes “scalping” permits Require GCDs to draft rules to enhance Require GCDs to draft rules to enhance
ASR developmentASR development Ownership should be a non-issueOwnership should be a non-issue Metering in and out keyMetering in and out key Paying the Piper – recharging the aquiferPaying the Piper – recharging the aquifer Alternative ASR implementation Alternative ASR implementation
Hybrid forms – see El PasoHybrid forms – see El Paso Wastewater ReuseWastewater Reuse
Summary & ConclusionsSummary & Conclusions
ASR provides a water development ASR provides a water development opportunity that can maximize potential opportunity that can maximize potential beneficial use, while minimizing beneficial use, while minimizing (i)(i) impacts to the environmentimpacts to the environment(ii) evaporative losses(ii) evaporative losses(iii) time associated with project (iii) time associated with project developmentdevelopment(iv)(iv) cost associated with project cost associated with project developmentdevelopment
Statutory ChangesStatutory Changes
Expand Chapter 11 beyond Pilot ProjectsExpand Chapter 11 beyond Pilot Projects
Authorize waste water reuse ASRAuthorize waste water reuse ASR
Amend Chapter 36 to recognize ASRAmend Chapter 36 to recognize ASR
Address Ownership/Protect issuesAddress Ownership/Protect issues
Legal and Institutional Issues Legal and Institutional Issues Affecting Aquifer Storage Affecting Aquifer Storage
Recovery in Texas Recovery in Texas
Edmond R. McCarthy, Jr.Edmond R. McCarthy, Jr.Jackson, Sjoberg, McCarthy & Wilson LLPJackson, Sjoberg, McCarthy & Wilson LLP
www.jsmwlaw.comwww.jsmwlaw.com