For almost 10 years, the San Antonio Water System has been fighting to take ownership from the state of the billions of gallons of treated wastewater the utility releases into the San Antonio River every year. But other groups who say they depend on that water downstream have contested the water utility’s claim.
Now, a decade later, SAWS’ legal battle over rights to the water may be finally coming to a close. But could it be the first of many such clashes to come?
As water becomes a scarcer commodity in Texas, every drop will become more valuable, said professor Gabriel Eckstein, the director of Texas A&M University’s Energy, Environmental and Natural Resources Systems Law Program. Eckstein told the San Antonio Report these types of legal water wars will likely become more common as Texas continues to grow in population and resulting economic development and as climate change continues to cause longer, hotter droughts.
“Nothing in a society can happen without water,” he said. “If you think of everything in society, whether it’s construction, manufacturing, of course agriculture, energy production — it all requires water.”
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. An acre-foot is roughly 326,000 gallons — enough water to supply two average households for a year. Currently, that water belongs to the state as soon as it leaves SAWS’ pipes.
“We feel that the water that we obtain for our customers, we spend a lot of money on it,” said Robert Puente, SAWS president and CEO. “We develop the water, we collect it, clean it up and treat it.”
It flows downriver where the San Antonio River merges with the Guadalupe River a little more than 100 miles southeast of San Antonio, then into the San Antonio Bay, the delta where water from the rivers flows into the Gulf of Mexico.
Disputing SAWS’ claim to that water are the Guadalupe-Blanco River Authority and chemical company Union Carbide, which argue SAWS’ ownership of that water would negatively affect their downstream water rights.
“We’re a senior water rights holder, and that permit impacts … our ability to provide water to our customers because it takes water out of the state system,” GBRA General Manager and CEO Darrell Nichols told the San Antonio Report.
The GBRA regulates water from the Guadalupe Basin across 10 counties; more than 350,000 Texas residents utilize GBRA’s water and wastewater operations. Union Carbide, a subsidiary of Dow Chemical Co., uses water from the Guadalupe Basin at its chemical manufacturing complex in Seadrift. The plants’ products are used to make consumer goods such as water bottles, car parts and cellphone components.
The groups have been in and out of Texas courts arguing their positions for nearly 10 years.
Following an administrative hearing this past spring, they are all set to receive a final ruling from the State Office of Administrative Hearings by the end of this year.
Why does SAWS even want this water?
SAWS has plans for the water, Puente said. Primarily, the utility wants to safeguard 50,000 acre-feet of the water to ensure it reaches ecosystems in the San Antonio Bay and nearby estuaries near the Gulf Coast, he said.
“We want that first 50,000 [acre-feet] to make it all the way down to the coast. Once it gets to the bay, it mixes with salt water, and it’s a spot where other wildlife really thrive,” Puente said. “The rest of that water, we want to retain ownership of it.”
The coastal ecosystem is especially important as humans try to battle climate change, said Shaun Donovan, the San Antonio River Authority’s manager of environmental sciences. SARA has supported SAWS’ effort to obtain the permit since 2013.
The freshwater-saltwater mix allows the bay’s wetlands to thrive, helping combat rising sea levels, hurricane damage and other effects of climate change, Donovan said. Animals like redfish, black drumfish, shrimp and blue crab also depend on this mix, and they are essential to the endangered whooping crane’s diet.
SAWS wants 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.
The utility intends to use only that 125,000 acre-feet for now but is seeking permission to take more than twice that amount per year to allow for growth and additional uses, he said.
Is it groundwater? Is it surface water?
SAWS’ case is “quirky,” Eckstein said, because its argument stems from its desire to hold onto water that is mostly groundwater, from the Edwards Aquifer through land SAWS either owns or leases. Its situation is different than many other water utilities in Texas, he explained.
In Texas, different legal frameworks apply to groundwater and surface water. Surface water in Texas 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.
The wastewater SAWS collects from homes and businesses is sent to one of its three wastewater treatment plants, where it goes through several physical and chemical processes to be either discharged back into the San Antonio River or used as recycled water.
“So SAWS is taking this groundwater that it owns and putting it into their system, into the city, then they’re taking it through their wastewater treatment facilities, and then they put it in the river,” Eckstein said.
By doing so, SAWS is giving the state water the utility technically owned, rather than just returning state water to state water sources as others do, he said. The utility is arguing that it should be able to keep or reclaim this water and should be granted a “bed and banks permit” to use the river bed as a delivery mechanism, Eckstein said. A bed and banks permit would allow the water utility to retain ownership of that water and have priority use of it after it becomes surface water.
Warring over wastewater
The GBRA and Union Carbide are contesting SAWS’ claim because they have water rights downstream of the San Antonio River they say would be impacted. The GBRA has water rights dating to 1941, and Union Carbide has rights dating to the 1950s. These “senior,” or older, water rights predate the 1992 formation of SAWS from a merger of the City Water Board, City Wastewater Department and the Alamo Water Conservation and Reuse District, they have argued in court filings.
SAWS has discharged 141,430 acre-feet per year for the last five years into the San Antonio River from the Steven M. Clouse plant, according to its permit application.
The GBRA says SAWS effluent helps keep the lower Guadalupe River Basin from being completely empty during drought.
If SAWS were granted the bed and banks permit it would cause a “substantial reduction in the supply reliability of the water that [Union Carbide] and the GBRA jointly divert under their own separate water right from the Guadalupe River,” according to an affidavit from Tim Finley, Dow Chemical’s water technology expert. Finley states in the affidavit losing the water could cause the plants to shut down when the water supply was insufficient.
“Our argument is that their permits are not based on reliance of our groundwater, our effluent,” Burton said.
As a part of its application to the TCEQ, SAWS submitted an “accounting plan.” The accounting plan serves as a road map for where water will be diverted, how much and when. It also accounts for carriage losses and evaporation, among other factors, he said.
Burton said the accounting plan is a tool that the state’s watermaster for South Texas could use in the event of drought-related cutbacks.
“They have to go in and ensure that people are diverting the water in the correct way,” he said.
Union Carbide disputes the accuracy of SAWS’ accounting plan and says there is no guarantee that SAWS will follow it.
‘We’re in a forever drought’
Climate change, or “extended drought” as some people are calling it, will continue to exacerbate legal water wars in Texas, Eckstein said — especially as Texas continues to grow and gain new residents.
“We’re in a forever drought,” Eckstein said. “So every drop of water is important.”
A large part of the argument between SAWS and the GBRA and Union Carbide is about how much water will be available during periods of drought.
“Because these water rights are so old, they’re very reliable,” Nichols said. “And when there’s a drought or even when times with flows are low in the river, these are reliable.”
Reliability in a region prone to drought and already feeling the effects of climate change is what SAWS is seeking, too. For the utility, getting to keep some of its own wastewater will help it avoid having to seek new water resources as its service area continues a population boom.
“Conserving and reusing this water is critical for SAWS’ commitment to the river, to the coastal environment and for our customers who own the asset,” Burton said.
