Legal and Institutional Issues Affecting Aquifer Storage Recovery in Texas Edmond R. McCarthy, Jr....

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