Two administrative judges have recommended giving the San Antonio Water System ownership of the billions of gallons of treated wastewater the utility releases into the San Antonio River every year, provided the municipal utility can offer protections for downstream users who say they depend on that water.
Those gallons currently belong to the state as soon as they leave SAWS’ pipes, but for the past 10 years, SAWS has been fighting to take ownership of the water.
Earlier this month, two administrative judges, Rebecca Smith and Heather Hunziker, issued a proposed decision to the Texas Commission on Environmental Quality that supports SAWS taking ownership of the water if the utility can provide more protections for the two entities fighting SAWS for water rights — the Guadalupe-Blanco River Authority and chemical company Union Carbide.
“The Administrative Law Judges find that although SAWS has generally met the requirements for issuance of Permit No. 13098, additional special conditions are necessary to protect [the GBRA’s and Union Carbide’s] water rights that were granted based on the use or availability of the return flows SAWS seeks to divert,” the recommendation states.
Despite the stipulations, utility officials said they are optimistic about the recommendation. SAWS President and CEO Robert Puente said utility officials are not discouraged by directions to include more protections for the GBRA and Union Carbide.
“We’re very happy that there’s been a proposal for it to be granted,” Puente said. “That was the big issue that we had to overcome. Now we have to work out the details.”
The draft permit already contains some protections for downstream users, said Jennifer Windscheffel, SAWS senior corporate counsel, but SAWS is not opposed to adding others as well, she said.
According to the draft permit, SAWS had already been directed to “implement reasonable measures in order to reduce impacts to aquatic resources,” and to include diversion points that help assure downstream areas receive a specific amount of water, based on the availability of the discharged water.
However, because the draft permit doesn’t formally recognize the GBRA and Union Carbide’s water rights as being reliant on SAWS discharge, it wasn’t specifically protecting the two entities, the judges said.
“Accordingly, [we judges] recommend that special conditions to protect [GBRA’s and Union Carbide’s] water rights be added to the Draft Permit,” the recommendation states.
The exact wording on how that will be written into the draft permit and what exactly those additional protections would look like is still to be determined, Windscheffel said.
“We are still in a preliminary stage and [we’re] looking at those options and trying to determine exactly what they mean,” she said. “[This is] a very complicated set of water laws, to be honest.”
Both sides have until Jan. 22 to file responses. They will have an additional two weeks to respond to each other’s responses from there, Windscheffel said. The case will then move out of the contested case process and move back over to the TCEQ, where commissioners can consider an updated draft permit on their agenda at any time, Puente said. The issue could move into a district court from there, he added.
“We would love it to wrap up as soon as possible, but we understand it’s a very long process,” he said.
The GBRA issued the following statement in regards to the judges’ recommendation:
“The SOAH judges found, after hearing all evidence, that, although SAWS generally met applicable requirements, any permit issued to SAWS must protect GBRA and Union Carbide’s jointly held lower basin water rights through additional special conditions. GBRA looks forward to engaging in the next steps before the Commission.”
