TWCA Confluence Newsletter April 2017

CONFLUENCE APRIL 2017

Texas Water Conservation Association | twca.org

85th Legislative Session in full swing

IN THIS ISSUE: • Four Corners Doctrine: 10 years later • Legislative update • Annual Convention recap and awards • Texas Water Day recap • Litter bill update • And more...

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April 2017 Confluence

Table of Contents

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President’s Message Phil Kelley

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Incoming President’s Message Mike Booth

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Marshall and the Four Corners Doctrine Martin Rochelle and Nathan Vassar Lloyd Gosselink Rochelle & Townsend, P.C.

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85th Legislative Session in Full Swing

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Innovative Solutions & Texas-Sized Takeaways Chairman Bech Bruun

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Stacey Steinbach, TWCA

Texas Water Development Board

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Annual Convention Recap

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Texas Water Day 2017 Tom Ray

Adeline Fox, TWCA

Lockwood, Andrews & Newman

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Court Addresses Reuse Permitting Requirements in the Brazos River Basin Emily Rogers

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Bickerstaff Heath Delgado Acosta LLP

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Chaos & Calamity on Texas Roads

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Texas Water Leader to be Inducted in AWWA Hall of Fame

TWCA Risk Management Fund

Adeline Fox, TWCA

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Litter Cost Analysis Shows Tip of Iceberg Courtney Griffin

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Booth, Ahrens & Werkenthin

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SAWS Opens Brackish Desalination Plant at H2Oaks Center

Bill Stein, P.G., LBG-Guyton Associates Richard Donat and Saqib Shirazi, SAWS

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Board Members & Past Presidents

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What’s new with TWCA?

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How well do you know your TWCA staff?

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Message from the President

Phil Kelley- Jefferson County Drainage District #7 As I write my last President’s Letter, I reflect on my time serving TWCA and realize the year has virtually flown by. I feel very lucky to have represented such a knowledgeable and diverse membership. It’s been an honor and certainly a rewarding experience, and I can’t express how much I appreciate the support and dedication of the staff and all of you during my time as President. With that said, TWCA has had a great 2017 so far. Dean and Stacey have done fantastic work this legislative session as they have successfully initiated 15 bills in the House and Senate. In February, we added a new staff member named Adeline Fox who is working as Director of Communications for the organization. We are glad to have her on board and confident she will do an outstanding job for the Association. We also had our Annual Convention in Austin on March 1-3. We had a great turnout with more than 400 people attending. The keynote speakers included the Texas Land Commissioner George P. Bush and Cassidy & Associate’s Charles Brittingham II, both of whom did an outstanding job addressing the audience. In addition, we were honored with the presence of Senate Agriculture, Water and Rural Affairs Committee Chairman Charles Perry and House Natural Resources Committee Chairman Lyle Larson. We very much appreciated them taking time out of their busy schedule, especially during a legislative session, to address the group and field questions. While the convention was great in all aspects, the highpoint was certainly the awards dinner.

We honored outstanding individuals who have accomplished great things in the industry. Retired GBRA General Manager Bill West and Robin Lloyd with Lloyd Gosselink Rochelle & Townsend, P.C. received Lifetime Membership Awards. The conference was dedicated to Robin Lloyd. Emily Rogers with Bickerstaff Heath Delgado Acosta LLP received the President’s Award for her tremendous work as chair of the Water Laws Committee. She was very deserving of this honorable award, and I owe her a special thanks for agreeing to chair this important committee during my term. Kim Wilson with TCEQ also received the President’s Award for her outstanding job of streamlining operations in the Water Availability Division. We appreciate her involvement with the Association. Last but not least, Alvin Schuerg with Guadalupe-Blanco River Authority was honored with the second annual Leroy Goodson Leadership in Water Award. Congratulations to all our award winners!

Again, it has been a real pleasure and honor serving as your president, and I’m very grateful for the opportunity. What impresses me most about TWCA is the fact that our members roll up their sleeves and get things done. Please join me in welcoming our incoming President Mike Booth.

Mike is an outstanding attorney in the water industry and an all-around good guy and will do a great job representing all interests of TWCA.

Phil Kelley

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TWCA Officers & Executive Committee President - Phil Kelley President Elect - Michael J. Booth Immediate Past President - John Grant Panel Chairs: Timothy L. Brown Lyn Clancy John Chisholm James C. Conkwright Sonny Hinojosa

James Kowis Wayne Owen J. Kevin Ward Mike Yost Vice Presidents: Fiona Allen Kim Carroll Tom Gooch Glenn Jarvis Kathy T. Jones

Glenn Lord Martin Rochelle Michael F. Thuss Walt Sears

TWCA Staff General Manager Dean Robbins drobbins@twca.org Assistant General Manager Stacey Steinbach ssteinbach@twca.org Office Manager/Events Coordinator Lisa Henley lhenley@twca.org Director of Communications Adeline Fox afox@twca.org Administrative Assistant Becky Arledge barledge@twca.org

Texas Water Conservation Association 3755 S. Capital of Texas Highway, Ste. 105 Austin, Texas 78704 www.twca.org | 512.472.7216

Message from the Incoming President Mike Booth- Booth, Ahrens & Werkenthin

It is a great honor to be representing TWCA as its incoming President. As you can see from my predecessors, TWCA leaders are the who’s who of the water business. I have some big shoes to fill. However, I would be remiss if I did not acknowledge the great work our current President and his team have been able to accomplish recently. Phil Kelley, along with the Finance Committee, has supported Dean and Stacey in the modernization of TWCA’s financial accounting and reporting to ensure the Association has a solid financial foundation to stand upon. Phil has also spearheaded the Communications Committee’s recommendation to modernize TWCA’s communication, membership and outreach efforts. Part of that recommendation brought onboard Adeline Fox, our new communications director. This edition of the Confluence is, in fact, Adeline’s, along with the rest of the TWCA staff ’s, first effort. I look forward to reading it and watching TWCA members grow more informed and more involved as a result.

TWCA is, definitively, the go-to association for matters of water policy in this state, and Dean and Stacey’s hard work towards maintaining that reputation shows this session. Not only is the power duo attempting to pass an unprecedented number of bills from our surface water and groundwater legislative committees, but they are congruently educating lawmakers about the water industry’s complexities. Our staff and dedicated volunteers who work on the legislative committees are also to be commended. The next time you see Lyn Clancy, Bob Brandes — our surface water chairpersons — and Hope Wells and Brian Sledge — our groundwater chairpersons — along with Emily Rogers — our water law chairperson — tell them you appreciate their hard work.

Looking forward, I intend to continue the great work of my predecessors but concentrate on supporting additional modernization of the association, creating leadership opportunities for our newer and younger members, and increasing the association’s federal presence. Indeed, the Communications Committee intends to bring a recommendation to the board at the Mid-Year Conference on a new logo! I am also hoping the By-Laws Committee will have recommendations on more streamlined by-laws and suggestions to the vexing question regarding how the association can add new directors to provide younger or newer members’ board experience. And on the federal presence, Phil and I have collaborated in the creation of a small committee to explore whether and how the TWCA might have a greater impact on the federal dispensation of funds to Texas and ensure our seat at the table as environmental laws are modified under the new congress and administration. To great things ahead!

Michael J. Booth

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Marshall and the Four Corners Doctrine: 10 Years After

By Martin C. Rochelle and Nathan E. Vassar

We recently marked the 10th anniversary of the Texas Supreme Court’s decision in Marshall v. Uncertain, 206 S.W.3d 97 (Tex. 2006), where the court squarely identified the factors to be considered by the Texas Commission on Environmental Quality (“TCEQ”) in its assessment and approval of certain water right amendments, and thus by applicants in their preparation of amendment applications.

Following that decision and the remand of the City of Marshall’s application to TCEQ for further consideration in light of the court’s opinion, TCEQ implemented a stakeholder process to define a procedural protocol to implement the court’s direction. Thereafter, TCEQ Commissioners took quick action to approve several applications involving the most prevalent types of amendments, and without notice or the opportunity for expensive, timeconsuming hearings. Since then, many dozens of amendments to water rights have been issued by TCEQ following the agency’s review, and without the requirement of notice or the opportunity for contested case hearing.

To date, our water supply planning series has focused on the value of water supply audits to identify supply shortfalls and prioritize needs, developing the right team to develop strategies to address such needs, and the availability of exempt interbasin transfers (“IBTs”) to enable

the provision of water supplies across river basin boundaries. Like the exempt IBT approach, the “Four Corners” or “Full Use” doctrine assessed by the Texas Supreme Court in Marshall can, if implemented appropriately, afford water suppliers an avenue to maximize their use of existing supplies without the risks of protests or hearings. The doctrine is a product of statutes, case law, and agency action, and as such, its benefits become available by framing water right amendment applications in a manner that honors the doctrine’s historical and legal foundations.

The requirement that water right holders secure amendments has evolved, beginning with case law dating to the 1940s. In Clark v. Briscoe Irrigation Co., 200 S.W.2d 674, 684 (Tex. Civ. App.—Austin, 1947, no writ), the court determined that one of the TCEQ’s predecessors, the Texas Board of Water Engineers, maintained jurisdiction over changes of purpose and place of use by water right holders. The current statute addressing amendments to water rights (Texas Water Code § 11.122(b) incorporates the “Four Corners” doctrine. It provides that certain amendments “shall be authorized,” if specific requirements are met. These provisions reflect policy enacted in 1997 via Senate Bill 1, where the Legislature directed TCEQ to authorize 6

certain water right amendments – those that did not propose to enlarge the diversion right or increase the rate of diversion, and that did not cause adverse impacts to other right holders or the environment of “greater magnitude” than if the base water right (without the amendment) were “fully exercised.” In short, the Legislature directed, and the Supreme Court subsequently confirmed in Marshall, that certain water right amendments are not subject to notice and hearing requirements if the amendment would not pose any greater impact to other water rights or the environment than if the terms and conditions of the pre-amendment right were fully exercised. The statutory and judicial history of “Four Corners” has certainly informed TCEQ practice in the decade since the Marshall decision. Pursuant to the court’s determination, if applicants for amendments are to avail themselves of the opportunity that Four Corners affords, they must be careful to frame their applications so as to address statutory requirements related to a host of “limited public interest” factors, including conservation, beneficial use, and consistency with state and regional water plans, and they must also address possible impacts of the proposed amendment that may be “irrespective of the full use assumption.”

Needless to say the construction of amendment applications since Marshall has demanded a thoughtful approach. The scope of water right amendments that are candidates for the “Four Corners” treatment continues to

evolve, as new amendment applications are presented to and considered by TCEQ. Among the amendments that are most often available for streamlined actions by TCEQ are applications to: (1) cure ambiguities in a water right; (2) change the place or purpose of use of a water right; (3) move a diversion point where there are no interjacent water users between the existing and proposed diversion locations; and (4) increasing rates and/or periods of diversion from storage reservoirs. Depending on a variety of factors, including location, other nonnoticed amendments may also be secured. An appropriately crafted amendment application may invoke the “Four Corners” doctrine and take advantage of the benefits afforded through it, if the applicant can demonstrate that it meets the doctrine’s statutory requirements, as detailed by the court in the Marshall case.

By framing amendment applications in a manner that avoids the hurdles, costs, and delays that accompany notice and hearing, water suppliers may implement the very purpose of Senate Bill 1 – as quoted in Marshall, to “make better use of existing supplies, . . . encourage conservation, . . . and to encourage systematic water-resource planning.” As such, adjusting water rights in order to address current and future service needs through water right amendments that use the “Four Corners” doctrine can be among the most effective water planning tools available to water suppliers.

Martin C. Rochelle is the Chair of the Water Practice Group at Lloyd Gosselink Rochelle & Townsend, P.C. in Austin. Martin focuses on the development and implementation of sound water policy. He represents a wide array of water interests across Texas. Contact Martin at (512) 322-5810 or mrochelle@lglawfirm.com.

Nathan Vassar is an attorney in the firm’s Water Practice Group. Nathan’s practice focuses on representing clients in regulatory compliance, water resources development and water quality matters. Nathan regularly appears before state and federal administrative agencies. For questions, please contact Nathan at (512) 322-5867 or nvassar@lglawfirm.com.

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85th Legislative Session is in Full Swing

By Stacey Steinbach

With April upon us, we are well into the 85th Legislative Session, and TWCA is keeping busy with tracking and advocacy efforts at the Capitol. By many counts, it has been a busy session. Legislators filed 6,654 pieces of legislation by the March 10th bill filing deadline, second only to the 81st session, when legislators filed 7,324 bills and resolutions during that period. TWCA is currently tracking 432 of those bills, with over 30 percent of those on our high priority list. While it’s too early to tell which of those bills will become law, TWCA is actively supporting some legislation put forth by its members this session.

As in previous years, TWCA’s Groundwater Committee worked on consensus legislation during the interim. You may recall that the committee produced seven pieces of legislation prior to the 2015 session, and six of those bills passed. This interim, the committee’s 80+ members produced 11 draft bills, and we found sponsors for 10 of those bills. The TWCA Board of Directors also convened a Surface Water Committee for the first time during the interim.

That committee, with more than 130 TWCA members, approved three consensus bills, one Groundwater Committee bill, and one legislative concept, all of which have been filed as bills this session. I have provided summaries for the Groundwater and Surface Water Committee legislation below.

You can find TWCA’s tracking report for these bills and other important information, including more detailed summaries, on the legislative page of our website, located at www.twca.org. For our legislative subscribers, we also provide detailed tracking reports, summaries, and updates for the other bills we are currently following.

Groundwater Committee Bills Advisory Committee Bill HB 3043 (Workman) SB 1528 (Creighton) This bill adds permissive authority for Groundwater Management Areas (GMAs) to add voting or nonvoting members to the GMA and creates a process for the creation of joint planning advisory committees authorized to make recommendations to the GMA. Direct Deposit Bill HB 3497 (Burns) SB 865 (Perry) This bill authorizes Groundwater Conservation Districts (GCDs) to use online banking tools such as direct deposit, online bill pay and other electronic banking applications that increase efficiency in financial transactions.

Proposed Export Amendments Bill HB 4050 (Larson) This bill clarifies and amends provisions related to issuing and renewing groundwater export permits, including the addition of a provision requiring export permits to be automatically extended to conform to the term of the related operating permit.

Export Extension Provision Bill HB 2378 (Larson) SB 774 (Perry) This bill, a cutout from the export amendments bill, provides for an automatic extension of an expired export permit or condition to conform to the term of the related operating permit.

Application Administrative Completeness Bill HB 4017 (Larson) SB 1009 (Perry) This bill clarifies the requirements for obtaining a designation of administrative completeness for a permit application at a GCD by limiting the list of items a GCD can require to what is already listed in statute as well as other relevant information included in a GCD’s rules.

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6,654 bills filed this session

Considering Registered Wells in Permitting HB 3417 (King) This bill requires a GCD to consider whether the proposed use of water in a permit application unreasonably affects registered wells exempt from permit requirements in addition to existing groundwater and surface water resources and existing permit holders when issuing permits or permit amendments.

Surface Water Committee Bills

DFC Adoption Process Bill *HB 2215 (Price) SB 1312 (Miles) This bill amends the deadlines for proposing and adopting DFCs by GCDs to align the process with the state water planning process. The bills currently differ in some ways, but we hope to align them through the legislative process.

Chapter 11 Cleanup Bill HB 3735 (Frank) The purpose of this bill is to conform the requirements of a water rights application with the current Texas Commission on Environmental Quality (TCEQ) practice and modern technology, including an amendment to the requirement that water right applications be consistent with state and regional water plans.

Modeled Sustainable Def inition Bill HB 3166 (Lucio III) This bill provides additional data for use by GCDs in developing DFCs. It adds a definition of “modeled sustainable groundwater pumping” and includes the figure in the list of hydrological conditions to be considered by GMAs in developing DFCs.

Water Rights Hearing Process Improvement Bill HB 3742 (Phelan) *HB 3535 (Price) *SB 225 (Taylor) This bill aims to streamline the hearing process for water rights applications at TCEQ and make the process more consistent with other program areas at the agency.

State Auditor Review Bill HB 180 (Lucio III) This bill, also filed last session, aims to reduce duplicative oversight by limiting the powers of the State Auditor’s Office to review GCDs to a financial audit only, consistent with the SAO’s review of Chapter 49 water districts.

Actions by Executive Director (“MTO”) Bill HB 3177 (Lucio III) This bill defines when a matter becomes uncontested before parties are named and clarifies the process for challenging an action of TCEQ’s Executive Director with TCEQ’s Commission first and then by filing a district court appeal.

Groundwater as Alternate Supply Bill HB 3031 (King) SB 864 (Perry) This bill requires notice when a permit applicant proposes to use groundwater as an alternate source in a surface water permit application if the groundwater to be utilized is within a GCD’s jurisdiction. This bill is also a Surface Water Committee bill.

Water Availability Models Concept HB 4006 (Larson) SB 696 (Perry) This bill would require TCEQ to update certain Water Availability Models (WAMs) at the agency. A funding component is also included. * These bills were not original TWCA consensus bills, but are similiar versions that may be combined with TWCA’s.

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INNOVATIVE SOLUTIONS and TEXAS-SIZED

Takeaways at Water for Texas 2017

By TWDB Chairman Bech Bruun

When I attend a conference, either as a presenter or registered attendee, I try to gain at least one takeaway from each session I participate in—for example, a meaningful story, better understanding of a subject, a new water colleague, or a question that stumped me and requires further investigation. With as many water industry conferences as there are in Texas, it can be easy to lose sight of why we’re coming together in the first place and what we can achieve as a result.

When the Texas Water Development Board (TWDB) began to plan our own conference, Water for Texas 2017, which was held January 23–25, 2017, in Austin, we had a few goals in mind. We knew we wanted to make this an opportunity for conference-goers to learn something new and enhance their knowledge of certain water-related topics. We also wanted to enable people to engage in dialogue and be part of the conversation, not just listen to it.

And lastly, we wanted the central theme of innovation to be present throughout the event, because innovation is critical to addressing the state’s growing water demands.

To accomplish these objectives, we offered an agenda of assorted breakout session topics and dynamic presenters; secured engaging keynote speakers; and created opportunities to network with experts and professionals from around the state and beyond.

and non-industry professionals, students, legislative representatives and the general public. Breakout sessions fell within the tracks of Emergency Management and Flood; Science, Technology, and Conservation; Planning and Infrastructure Financing; and Policy and Law. It was important to us to limit the number of slide presentations and instead format several of the sessions as moderated panels with time for audience Q&A. Most of the panels were moderated by TWDB staff and Board members. I’d like to think people attended the sessions for our fantastic moderating skills, but the real credit goes to the panelists, many of whom are well-known industry experts and representatives of cities and other entities. A number of TWDB staff also hosted workshops and demonstrations highlighting financial assistance programs and technology available through the agency. With three to four concurrent sessions running throughout each day of the conference, we aimed to offer something of interest to everyone: flood, desalination, conservation, alternative project delivery, Gulf Coast restoration, groundwater and more.

Available presentations are accessible for download on the Water for Texas 2017 conference website, waterfortexas.twdb.texas. gov/recap.asp.

Engaging Keynote Speakers Between breakouts, general sessions and meals brought all attendees together for keynote remarks by elected officials and other

Diverse Breakout Topics and Speakers We chose topics thoughtfully to appeal to the more than 550 attendees made up of industry 11

Texas Tribune CEO Evan Smith moderates the “Eye on the Future: Policy Issues for the 85th Legislative Session” general session panel featuring Chairman Lyle Larson, Chairman Eddie Lucio III, and Chairman Charles Perry to discuss water policy challenges and solutions and the need for innovation.

motivational speakers. Texas Comptroller Glenn Hegar spoke at the January 24 luncheon about the Texas economy—the tenth largest in the world—and the need for water conservation education and investments in water infrastructure to meet the demands of a state growing by 1,200 people a day.

With the 85th Texas Legislative Session in town, we were able to host a moderated panel of legislative members to discuss key water issues. In front of a packed room, Texas Tribune Co-Founder Evan Smith led a discussion between Senator Charles Perry, Representative Eddie Lucio III and Representative Lyle Larson regarding water policy challenges, solutions and the need for innovation.

Roy Spence, co-founder and chairman of the creative agency GSD&M and co-founder and CEO of the Purpose Institute, delivered a powerful presentation about purpose at the January 24 awards banquet. He encouraged everyone to “Do good and be happy,” and said, “Every day that you work for water, you’re doing good.” Spence admitted that he previously had no idea of the water challenges our state faces, but after reading the 2017 State Water

Plan (in three hours!), he was committed to supporting our mission to provide water for Texas. He said to the audience, “If you don’t let the people of Texas know what’s at stake [regarding diminishing water supplies and growing demands], you’re cheating them out of an opportunity to make a better Texas.”

To conclude the conference and help tell the bigger picture of how water fits into the state budget—especially this legislative session— Lieutenant Governor of Texas Dan Patrick left attendees more informed about the state’s economic and population growth. Thanking the TWDB, similar organizations and everyone helping to ensure a bright future for the state, he said, “Everything we’re doing is to ensure a strong Texas...Everything else is important, but water is vital to us.”

Other Networking and Learning Opportunities Outside of structured discussions, there were short breaks between the sessions to encourage the sharing of ideas and dialogue.

The Interactive Room hosted by the TWDB’s Texas Natural Resources Information System 12

Chairman Bech Bruun moderates “The Future of Flood: What’s on the Horizon” panel with Jessica Baker, Texas Floodplain Management Association; Dr. Robert Mace, TWDB; Mark Null, National Weather Service – West Gulf River Forecast Center; and Don Ferguson, City of Wimberley, at Water for Texas 2017.

(TNRIS) featured hands-on activities like the Visual Texas display, an immersive Google Earth experience and Virtual Sandbox, an augmented reality sandbox.

To further highlight real examples of innovative success, three projects which exemplify innovative thinking in the areas of conservation, education and technology were honored as the winners of the first-ever Innovative Water Supply Awards at the awards banquet. The City of Lago Vista was named the winner of the Conservation category; Texas A&M AgriLife Research’s Water University received the award in the Education category; and Enviro Water Minerals and NorrisLeal’s El Paso Full Recovery Desalination Project was named the winner in the Technology category.

We also recognized the Leadership Montgomery County Class of 2014, recipient of the All-Star Rain Catcher Award for its Harvesting the Rain Project.

Ensuring sufficient water supply for our future requires thoughtful planning and implementation of innovative solutions throughout the state, and my hope is that every attendee at Water for Texas left feeling inspired and educated to do just that. I can say with absolute certainty that my TWDB colleagues and I did—my list of takeaways is proof.

Photo highlights and additional information about the conference may be viewed at waterfortexas.twdb.texas.gov/.

Lieutenant Governor Dan Patrick speaks about the state’s economic and population growth and how water fits into the state budget during a luncheon.

Bech Bruun was appointed Chairman of the Texas Water Development Board by Governor Greg Abbott on June 10, 2015. He has served as a board member of the Texas Water Development Board since September 1, 2013. A native of Corpus Christi, Bruun resides in Austin with his wife Glenna and their children Cilla Kay and Radford.

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2017 ANNUAL CONVENTION RECAP

By Adeline Fox

One of the many highlights of the convention was the awards dinner, which honored six outstanding individuals for their service in the water industry. Retired GBRA General Manager Bill West and Robin Lloyd of Lloyd Gosselink Rochelle & Townsend, P.C., received Honorary Lifetime Membership awards. The convention was dedicated to Robin Lloyd. Congratulations to all our award winners.

The 2017 Annual Convention was in Austin on March 1-3. More than 400 attendees participated in the three-day event. A range of speakers and topics provided an overview of current issues in many sectors of the water industry. From networking opportunities to honoring outstanding individuals at the awards dinner, this annual convention was nothing short of a success.

Texas Land Commissioner George P. Bush provided the keynote address during the first day of the conference. He discussed how the Texas General Land Office handles water issues, which included detailing recent initiatives evaluating coastal barriers as a method to reduce hurricane damage along the Texas coast. The keynote address on the second day was Charles Brittingham, II with Cassidy and Associates. During the TWCA/NWRA Luncheon, Brittingham updated the crowd on the new administration’s effects on environmental and water regulation moving forward.

From a state policy level, attendees listened in on the latest bill filing initiatives and heard from Chairman Charles Perry and Chairman Lyle Larson regarding their legislative plans. TWCA filed a total of 15 bills in the Senate and House.

• President’s Awards

Emily Rogers, Bickerstaff Heath Delgado Acosta, LLP

Kim Wilson, Texas Commission of Environmental Quality

• Leroy Goodson Leadership in Water Award Alvin Schuerg, Guadalupe-Blanco River Authority

• Honorary Lifetime Memberships

Bill West, Guadalupe-Blanco River Authority

Robin Lloyd, Lloyd Gosselink Rochelle & Townsend, P.C.

• Dedication of Annual Conference

Robin Lloyd, Lloyd Gosselink Rochelle & Townsend, P.C.

The annual conference would not be possible without our sponsors. TWCA board and staff appreciate the contributions and participation from all our sponsors. The Mid-Year Conference will be at Moody Gardens Hotel and Spa in Galveston. Stay tuned for details.

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Dean Robbins shares kind words about Robin Lloyd as he accepts his Lifetime Membership Award. Bill West also received a Lifetime Membership Award, but was unable to attend the dinner.

Alvin Schuerg, with GBRA, received the Leroy Goodson Leadership in Water Award.

Dean and Stacey pose with the Lloyd Gosselink Rochelle & Townsend, P.C. staff and Robin Lloyd (C) following the award ceremony.

President Phil Kelley awards Emily Rogers of Bickerstaff Heath Delgado Acosta LLP the President’s Award.

President Phil Kelley poses with Robin Lloyd who received a Lifetime Membership Award. TWCA also dedicated the conference in his name.

Kim Wilson with TCEQ received the President’s Award from Phil Kelley.

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More photos from the Annual Convention

President Phil Kelley with Texas Land Commissioner George P. Bush during the first day of the convention, which was also Ash Wednesday.

Michael J. Nasi with Jackson Walker LLP.

Tony Smith with Carollo Engineers.

President Phil Kelley and TWCA/NWRA Luncheon keynote Charles Brittingham, II with Cassidy & Associates.

TWCA General Manager Dean Robbins moderates the panel featuring Chairman Larson and Chairman Perry.

Paulina Williams with Baker Botts LLP.

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Mason Miller with AmaTerra Environmental.

Meghan Hope with the Office of the Comptroller.

Texas Water Day 2017

By Tom Ray

We had a great turnout at Texas Water Day 2017. The TWCA group expressed its concerns with the Water Supply Rule, including concerns for not properly recognizing Texas primacy over its water, the potential unintended consequences stemming from a Corps of Engineers accounting of waters used by its non-federal sponsors for water supply, and the general confusion with the rule in its current form. Kevin Ward with the Trinity River Authority, Denis Qualls with Dallas Water Utilities, Linda Christie and Dan Buhman with Tarrant Regional Water District and others gave examples of potential issues and expressed concerns. Daniel Inkelas, legal counsel assigned to the rule, attended the meeting; his recommendation for a number of the specific questions raised was to submit detailed comments.

of Engineers, USGS, Bureau of Reclamation, Congressional committee staff, and Texas Congressional members’ staff. Major General Edward Jackson, the Deputy Commanding General for Civil and Emergency Operations, and Kiel Weaver, with the Natural Resources Committee attended and spoke to the group.

It was an excellent opportunity for TWCA members to visit informally with key leadership of the Corps and other federal agencies, to talk casually with Congressional staff and to have an overall good time.

Texas Water Speakers Series On Thursday, after a hardy breakfast and a quick review of the day’s activities, the group assembled at the U.S. Capitol, House Visitors’ Center for our speakers. Both Senator John Cornyn and Senator Ted Cruz spoke to the group and took time to answer questions.

Both senators were accompanied by their key staff handling water issues, and both senators encouraged TWCA members to visit with those staff on issues related to Texas water and the federal government. Senator Cornyn was

Reception Honoring the Texas Congressional Delegation Our Texas Water Day reception Wednesday evening was outstanding. The room was filled with representatives from the Corps 17

MG Jackson visits with several TWCA folks

Senator John Cornyn addreses the audience.

pleased that there would “Finally be a stop to the WOTUS Rule.” The Senators recognized the burden of over regulation through Executive and Congressional actions. The Congressional Review Act intends to mitigate these practices.

Don Cline, Associate Director of Water for the USGS, recognized the importance of efforts to restore the federal share of funding to maintain USGS gages throughout Texas and the nation. He has led a recent reorganization of several USGS departments working with water. Robert Joseph, the long-time head of the Texas USGS team will have a key role under this new organization.

Kiel Weaver is the majority staff director of the Water, Power and Oceans Subcommittee of the Natural Resources Committee that has jurisdiction over matters concerning the nation’s water resources, including interstate water issues and federal hydropower. Speaking as a staff director, Kiel acknowledged that with the new administration came a great opportunity, but “Now, it’s on us” to get things done; there are no excuses. Kiel drafted the Title XVI competitive grant provision included in the WRDA 2016 (the WIIN Act) reshaping and giving new life to the federal support of water reuse and recycling projects. He spoke to the need for grant applicants under the new Title XVI program to demonstrate clear national benefits. Many issues from the Endangered Species Act, interstate water transfers under the Lacey Act, to infrastructure and the need for a “one-stop shop” for environmental permitting will be considered by his subcommittee. He encouraged

TWCA members to become directly involved, particularly during the 115th Congress.

WRDA 2016 (WIIN Act) Water Resources Development Acts (WRDAs) provide the Congressional authority for the Corps of Engineers to carry-out all of its programs and projects. This includes major legislation affecting the water Corps management of current water operations, the procedures for permitting under Section 404 and 408, and the approval for new planning and construction projects. Late last year the previous Congress passed and President Obama signed the Water Infrastructure Improvements for the Nation or WIIN Act, often referred to as WRDA 2016. Making this legislation a reality was a major undertaking and achievement.

The versions passed by the House and Senate were totally different. The House version was concise, traditional, often referred to as a “pamphlet” bill, while the Senate passed a massive 500-plus page bill that included not only Corps measures, but also new drinking water programs, funding for Flint, a major Native American water rights settlement, measures to help address the California drought, the Title XVI reuse program, and many other non-traditional WRDA provisions. Bringing these two together, “conferencing” these versions, seemed to most observers an impossible task, particularly in the closing weeks of the 114th Congress. But, somehow it got done.

The two key subcommittee staff directors, highly involved in getting a WRDA 2016 done, Geoff Bowman of the Water Resources and 18

Texas Water Day 2017 had a great turnout.

Senator Ted Cruz discusses federal water issues.

Environment Subcommittee and Charles Brittingham, former Senior Water Resources Advisor for the Senate Environment and Public Works Committee, spoke informally on the efforts involved. As one of the only viable bills remaining in the 114th Congress, it became a “blank Christmas tree” for non-traditional items like Flint. Charles remarked that “It slowed the process…but the ground shifted with the election (Presidential).” Compromises were made and commonalities were used to conference the final bill.

On WRDA 2016 implementation, Geoff urged the TWCA group to work with members’ staff to make sure Congressional intent is properly considered. Both were hopeful that WRDA 2016, the second WRDA enacted on a two-year cycle, represents a return to biennial legislation. Geoff indicated that the House Transportation and Infrastructure Committee is underway with plans for a WRDA 2018—TWCA needs to have input.

is the primary issue for the House Financial Services Committee that has jurisdiction over NFIP. The need is great. NFIP is over $25 billion in debt and, according to Roy, requires $400 million annually to service the debt. The losses in 2016 alone were $4.5 billion.

Carrying the Priority Water Issues – Individual Office Visits After input, review and several iterations, a one-page briefing paper summarizing the Texas Water Day 2017 Priority Water Issues was distributed to the Texas Congressional Delegation. The goal was to provide each member’s office, specifically the member’s staff with responsibility for water-related matters with the 2017 priorities. Thursday afternoon, six small groups were dispatched to the Texas members’ offices to present the briefing paper and discuss the issues with those staff.

Combining the individual, small group office visits with the Speakers Series gives those attending Texas Water Day the opportunity to hear from members on key water issues and discuss the details with members’ staff.

NFIP Reauthorization We were fortunate to have Roy Wright, the Federal Emergency Management Agency’s (FEMA) Deputy Associate Administrator for Insurance and Mitigation, to speak on the National Flood Insurance Program (NFIP) and the Federal Flood Risk Management Standard (FFRMS). Roy heads the NFIP. He made it clear that FEMA is looking for any way or combination of ways for NFIP “…to have a sound financial framework.” This included private markets and community-based systems.

The NFIP is being reauthorized this session; it

J. Tom Ray, PE, D-WRE, joined Lockwood, Andrews & Newman in 2001 as the Water Resources Programs Manager.

His background is water resources engineering and project management, working with numerous federal, state, regional and local agencies.

He can be reached at j-tray@lan-inc.com.

19

Court Addresses Reuse Permitting Requirements in the Brazos River Basin

By Emily Rogers

For more than a decade, the State of Texas, the Texas Commission on Environmental Quality (TCEQ), and stakeholder groups have grappled with how wastewater return flows should be treated in the water rights permitting context. The Reuse Committee of the Texas Water Conservation Association prepared and published a white paper during the 2007 State Water Planning process that provided some basic legal background concerning the reuse of wastewater under current Texas law, identified disputed issues with existing law in Texas, summarized the various arguments offered on both sides of these issues, and discussed potential consequences of various policy alternatives. That white paper outlined five disputed issues: (1) whether, under current law, the use of wastewater effluent after discharge to a stream is “state water” subject to the laws of prior appropriation or whether it is subject to a different regulatory scheme; (2) whether current law allows effluent derived from different sources of water to be treated differently for purposes of evaluating a request to reuse this effluent; (3) whether current law provides for different treatment of effluent derived from “future” and “existing” return flows, regardless of the source; (4) who is authorized to obtain indirect reuse rights; and (5) to what extent should the protection

of environment factor into reuse permitting decisions? Tex. Water Development Bd., Water for Texas 2007, Vol. 1, p. 29-38, “Texas Water Rights and Wastewater Reuse, Prepared by the Reuse Committee of the Texas Water Conservation Association,” (Document No. GP-8-1, January 2007). The Fourteenth Court of Appeals in the R.E. Janes Gravel Co. v. Texas Comm’n on Environmental Quality, et al., has, in part, addressed some of these questions. R.E. Janes Gravel Co. v. Texas Comm’n on Environmental Quality, et al., ___ S.W.3d ___, 2016 WL 7323307 (Tex. App. – Houston [14th Dist.] December 15, 2016, no pet.).

Background In 2001, the City of Lubbock, Texas (City), which is located in the Brazos River basin, was granted a wastewater discharge permit that allows the City to discharge a maximum of 10,081 acre-feet (AF) of wastewater into the North Fork of the Brazos River. The City began discharging wastewater under the permit in 2003. Id. at *2. The City’s treated effluent is derived from two sources: (1) surface water originating in the Canadian River basin that is purchased by the City from the Canadian River Municipal Water Authority (CRMWA) and transported by pipeline to the City; and (2) groundwater from wells owned by the City and 20

CRMWA. To take advantage of this supply of water, the City filed a water rights amendment application with the TCEQ seeking a bed and banks permit under Texas Water Code § 11.042(c) to transport 10,081 acre-feet per year of treated effluent from the City’s discharge point to its point of diversion 2.7 miles downstream on the North Fork of the Brazos River. Id. at *2.

The TCEQ conducted its analysis of the application and prepared a draft permit granting the application. The R.E. Janes Gravel Company protested the application. The gravel company owns a 1968 water right authorizing it to divert up to 450 acre-feet of water annually from a diversion point downstream of the City’s diversion point on the North Fork. The company, in its protest, complained that the City’s application and permit would adversely affect its water supply and operations. Id. The Commission referred the case to the State Office of Administrative Hearings, which conducted a hearing on the merits of the application. The Administrative Law Judge issued a proposal for decision recommending the TCEQ grant the application and issue the permit. The Commission agreed with the proposal and issued a final order in 2012 granting the amended permit to the City. Id. The gravel company filed an appeal in Travis County District Court seeking judicial review of the Commission’s decision. The trial court upheld the Commission’s order, and R.E. Janes Gravel Company appealed.

authorization. The authorization shall allow to be diverted only the amount of water put into a watercourse or stream, less carriage losses and subject to any special conditions that may address the impact of the discharge, conveyance, and diversion on existing permits, certified filings, or certificates of adjudication, instream uses, and freshwater inflows to bays and estuaries . . . . Tex. Water Code Ann. § 11.042(c) (Vernon’s 2008). Texas Water Code § 11.046(c) states that: Except as specifically provided otherwise in the water right, water appropriated under a permit, certified filing, or certificate of adjudication may, prior to its release into a watercourse or stream, be beneficially used and reused by the holder of a permit, certified filing, or certificate of adjudication for the purposes and locations of use provided in the permit, certified filing, or certificate of adjudication.

Once water has been diverted under a permit, certified filing, or certificate of adjudication and then returned to a watercourse or stream, however, it is considered surplus water and therefore subject to reservation for instream uses or beneficial inflows or to appropriation by others unless expressly provided otherwise in the permit, certified filing, or certificate of adjudication. Tex. Water Code Ann. § 11.046(c) (Vernon’s 2008).

R.E. Janes Gravel argued that section 11.046(c) applies to the discharged effluent because, in part, the water is returned to the water course and becomes state water. Id. at *5. The gravel company further argued that, to obtain a bed and banks permit under section 11.042(c), the City was required to obtain the bed and banks permit before it began discharging the effluent. Thus, the City’s requested diversion should constitute a new appropriation, and the “discharges [should be] ‘subject to reservation’ for Janes’ appropriation by virtue of its first-intime permit issued in 1968.” Id. The City and the TCEQ disagreed. They argued that because the City’s request seeks to divert no more than the amount discharged minus carriage losses, the diversion of the effluent was not a new appropriation of state water subject to the rights of senior water rights

The Dispute At issue in this case is whether the City can obtain authorization to reuse its wastewater through a bed and banks amendment authorization under Texas Water Code § 11.042(c), or whether the City was required to obtain a new appropriation because discharged wastewater was surplus water under Texas Water Code § 11.046(c). Texas Water Code § 11.042(c) states that: [A] person who wishes to convey and subsequently divert water in a watercourse or stream must obtain the prior approval of the commission through a bed and banks 21

holders in the basin. Id. at *6. They contended that section 11.122(b) of the Texas Water Code applies, which provides that an amendment application must be granted if it will not cause adverse impacts to other water rights holders or the environment of “greater magnitude than under circumstances in which the permit . . . was fully exercised according to its terms and conditions as they existed before the requested amendment.” Tex. Water Code Ann. § 11.122(b); R.E. Janes Gravel Co., at * 10.

section 11.042(c) to reuse treated effluent that is derived from both out-of-basin sources and groundwater sources. The treatment of other types of return flows, such as return flows derived from in-basin surface water or return flows derived solely from groundwater, are not addressed by Janes Gravel case.

However, some of the questions raised by the Reuse Committee a decade ago were, at least in part, addressed by the Commission in Brazos River Authority’s System Operations water right permit application case. See TCEQ’s September 16, 2016 Order Granting in part the Amended Application by the Brazos River Authority for Water Use Permit No. 5851 and Approving its Water Management Plan; TCEQ Docket No. 2005-1490-WR; SOAH Docket No. 582-10-4184. The TCEQ’s decision in Brazos River Authority System Operations case has been appealed in the Travis County District Court. See Lake Granbury Coalition v.

Texas Commission on Environmental Quality, Cause No. D-1-GN-16-005965 (345th Judicial Dist. Of Travis County); Friends of the Brazos River v. Texas Commission on Environmental Quality, Cause No. D-1-GN-16-005966 (353rd Judicial Dist. Of Travis County); Bradley B. Ware and William and Gladys Gavranovic v. Texas Commission on Environmental Quality, Cause No. D-1-GN-16-005959 (261st Judicial Dist.

Of Travis County). Depending on the outcome of the Brazos River Authority case, the courts could further clarify how reuse water should be treated in the water rights permitting context.

The Court’s Holding The court agreed with the City and the TCEQ. The court noted that “[n]othing in section 11.042(c) precluded the City from obtaining a bed-and-banks permit although it already had been discharging the effluent.” Id. at *9. The court disagreed that the City was precluded from obtaining a bed and banks permit simply because it began discharging the wastewater before it obtained the permit. Id. The court concluded that the Commission did not misapply sections 11.042(c) or 11.046(c), and the TCEQ was not required to evaluate the effects on senior water rights holders. Id. With respect to Janes’ argument that section 11.122(b) does not apply in this case, the court disagreed and found there would be no effect on Janes’ water right. The court noted that (1) the City was authorized under its original permit to reuse a maximum of 22,910 acre-feet per year of water originating from its effluent and was not required to discharge any of that effluent into the North Fork; (2) the original permit was issued subject to all superior rights in the Canadian River basin, not the Brazos River basin; and (3) the amended permit only allows the City to divert the amount of effluent that it discharges less carriage losses. Id. 10. The court said, “The effect of the amended permit is no different than if the City used a pipeline instead of the North Fork to transport the effluent from the treatment facilities to the diversion point.”

Id. Thus, the court found that the trial court did not err by upholding the Commission’s order and affirmed the lower court’s decision.

Based on this case, it appears that a person may seek a bed and banks authorization under

Emily Rogers is a water attorney at Bickerstaff Heath Delgado Acosta LLP. She represents public entities in matters involving surface and groundwater rights and water and wastewater utility matters.

Contact Emily via phone 512-472-8021 or email her at erogers@bickerstaff.com.

22

CHAOS & CALAMITY

ON TEXAS ROADS

By TWCA Risk Management Fund

As Texas drivers we have all seen the kinds of driving behaviors that lead to accidents.

If the truth be known, some of us have even been guilty of behind the wheel transgressions like speeding or following too closely. Despite the best training efforts of the Fund’s Loss Control Consultants there are still violations of driving best practices. Although members of the Fund have their own unique driving duties and vehicle types, the Fund’s claim experience mirrors the overall patterns of all drivers in Texas. Each year the Texas Department of Public Safety publishes a compilation of all accidents reported to them by local law enforcement authorities. The most recent data is for 2015.

It is a sobering file of information about the causes and results of driving accidents. This article will present some of the important highlights of the Texas database and compare it to the recent claim database of the Fund.

Automobile accidents continue to be costly to water districts and authorities. Automobile accidents have four main cost components: • • •

•

Many times all four cost components are seen in an accident. The Texas DPS database estimates the total economic cost of all accidents but does not record the dollar cost of the different types of accidents. However, they do report the most costly result – fatalities. The pie chart illustrates the number of fatalities by the top six causes in Texas in 2015. These six causes account for 85 percent of the fatalities in 2015 and 72 percent of total accidents reported to the database by local law enforcement departments. The table illustrates the frequency of accidents by the top six causes. The largest cause of accidents is “Failed to control speed” which is also the second leading cause of fatalities in 2015.

However, the fatality rate in the “Failed to control speed” category is only .37 percent compared to the fatality rate of 1.4 percent in the “Failed to drive in a single lane” category.

The death rate is even higher for “Unsafe speed” at 1.53 percent. These percentages seem small but they represent hundreds of Texans killed in largely preventable accidents. Another category that is of growing concern is “Driver inattention.” One of the primary causes of fatalities and accidents in this category is the use of cell phones while driving.

The most common in terms of frequency is physical damage to the member’s vehicle.

The damage your vehicle does to someone else’s vehicle or property is another element.

But the most costly claims are injuries to occupants of the vehicles involved in an accident. Occupants of the other vehicle are covered by Automobile Bodily Injury Liability.

District drivers are covered by Workers’ Compensation.

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Over the last five years the Fund’s claims data shows a total of 521 automobile liability and automobile physical damage claims out of a fleet of 2,614 vehicles (2015/16 audited vehicle count). This translates to a rate of 19.9 percent of all vehicles being involved in some kind of automobile claim over that five year span. A total of $2,521,522 has been paid so far for all automobile liability and physical damage claims during that period. Fortunately, there were no fatalities from any of the Fund accidents during this time. The trends and causes observed in 2015 are definitely continuing and the Fund will continue its efforts to help its members prevent automobile accidents that are so costly to the public, district staff and to district property.

One of the primary causes of fatalities and accidents in this category is the use of cell phones while driving.

2015 Texas Fatal Crash Data - Top Six Causes

283

292

502 407

Faulty evasive action Unsafe speed Driver inattention Failed to control speed Failed to drive in a single lane Other

326 417

Source: Texas Department of Public Safety

Number

2015 Total Statewide Crashes Cause

136,383

Failed to control speed

94,876

Driver inattention

36,238

Failed to drive in single lane

34,157

Changed lane when unsafe

30,741

Failed to yield right of way turning left

29,394

Other 24

Texas Water Leader to be Inducted in AWWA Hall of Fame

By Adeline Fox

It is hard to find someone in the Texas water industry who doesn’t know Carole Baker. For one thing, she is hard to forget once you meet her, and for another, she has been involved in many landmark water conservation initiatives.

Carole has dedicated her career to water conservation education, especially in Texas.

Now, her hard work and contributions to the water industry are being recognized on an even larger scale.

Each year, the American Water Works Association (AWWA) inducts water leaders in the Water Industry Hall of Fame. Nominations are submitted by any AWWA member, committee, division or section. This year, the Texas Section of AWWA nominated Carole as their outstanding water industry professional, and the national organization selected her as one of two recipients for the award in 2017.

Upon receiving news that she was selected, it occurred to her that she is probably the first person chosen for the award whose career has been dedicated to water conservation policy.

“I certainly don’t have all the talents as the engineers, scientists, operators, etc., people who actually produce, treat and provide water to us all,” Carole humbly stated. “I was happy not to let my Texas folks down because I tried to talk them out of nominating me since it was such a long shot, but they went over my head!”

Although Carole is a modest public servant, her track record proves she makes an impact in anything she does. Carole is currently President/ CEO of the Texas Water Foundation, an organization that aims to maintain and enhance the quality of life for all Texans by mobilizing Texans to recognize the vital role water plays in protecting human health, supporting economic growth and safeguarding natural resources. Before leading the Texas Water Foundation, Carole worked as the Director of Intergovernmental Relations at the Harris Galveston Subsidence District (HGSD) for 21 years serving as legislative liaison to the Texas Legislature’s Senate and House Natural Resource

“Carole Baker’s professionalism and dedication to the water industry have distinguished her as a passionate leader.” *Excerpt from TAWWA’s nomination proposal

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Committees. Early accomplishments include contributions in water conservation legislation, specifically relating to state water planning efforts.

In addition to running a statewide nonprofit organization, Carole is a very active public speaker on water issues around the country, including a past presentation at the International Water Conference in Paris in 2009.

She also presented at the 2011 United Nations Global Water Initiative Conference in New York.

Throughout her career, her activities have included numerous statewide and national roles.

She is currently the Chair Emeritus of the Board for the Alliance for Water Efficiency (AWE), a national non-profit organization working to enhance the more efficient use of water. She is also a former board member of TWCA. Carole will be inducted in the Water Industry Hall of Fame during the Opening General Session of the AWWA Conference on June 12, 2017 in Philadelphia, Pennsylvania.

Congratulations on your Hall of Fame induction, and thank you for your contributions to the state and national water industries, Carole!

LITTER

COST Analysis Shows Tip of the Iceberg

By Courtney Griffin Mykawa and Fuqua in Houston. Taken 3/17.

Unfortunately, everyone has passed a stream and seen litter; a decayed mattress strewn across a bank, soggy plastic bags caught on nearby brush, beer cans half buried in the bottom of a creek bed. It is so common that many Texans do not notice it anymore. But, your pocket book does, and so do your governmental entities.

In February, Texans for Clean Water, a nonprofit organization formed by business leaders to address the problem of waterway litter, commissioned a study to quantify how much litter and illegal dumping is directly costing communities. The study, conducted by consulting firm Burns & McDonnell, examines annual cost data for prevention, education and outreach, abatement and enforcement efforts to address trash and debris littered or dumped in nine cities. According to the study, the nine cities spend a total estimated $50 million per year trying to address litter and illegal dumpingrelated issues. This number comes with a caveat, however. The study used only direct costs reported by local governments and associated organizations and by not including expenditures by private business or valuation of volunteer time, $50 million is likely a lower estimate than actual costs.

“We wanted to present a study of hard data,” said Scott Pasternak, Senior Project Manager with Burns & McDonnell, “By using only direct costs, without extrapolation, we can show the real-world receipts of these efforts.”

The cities studied — Austin, Corpus Christi, El Paso, Fort Worth, Houston, Laredo, Lufkin, Midland and San Antonio — represent 25

percent of the state’s population. The report gathered data from multiple entities, including nonprofit organizations, water districts, cities, counties and law enforcement, which are commonly involved in efforts to prevent and cleanup litter.

While the study’s data provides more than enough to dig into, it definitely shows that most entities spend their money reacting against litter rather than preventing it. The study states nearly 80 percent of costs are incurred on abatement and enforcement efforts – all actions that take place after trash is already “misplaced.”

These abatement and enforcement efforts include street cleaning operations, city-staffed cleanup programs, litter clean-up events, and booms and dredge boats for waterways. Keep Texas Beautiful affiliates, a city’s storm water utility, parks and recreations, solid waste services, street services and code departments are often the entities running the efforts. Others involved also include transportation or tolling authorities, county departments, water districts and flood control districts. And although many cities had similar departments involved in cleanup efforts, no city was the same in its makeup or approach to combating litter and illegal dumping. The wide swaths of methods used on prevention, education and outreach, abatement and enforcement show how complex litter and illegal dumping problems can become.

With that complexity comes costs, which when taken individually may not raise much attention but taken together tells a new story.

For example, City of Houston raised 26

Direct Costs of Managing Litter and Illegal Dumping

Litter (Abatement) Illegal Dumping (Prevention) Illegal Dumping (Abatement) Enforcement Education & Outreach Litter (Prevention)

Source: Texans for Clean Water Report 2017

“That stuff makes its way into the stormwater system and comes to a pumping system that we have… it’s a pretty good chore to remove all of it,” he said.

The pumping station crew uses automated methods mixed with old fashioned elbow grease to ensure the station’s screens do not become blocked. Kelley said accumulations can cause pressure differentials within the pumping station, which could be “catastrophic” if the litter was not removed. Brian Mast, government consultant with the San Antonio River Authority (SARA), told the same committee that litter was a huge problem for his entity as well. SARA governs a nine-mile stretch of the San Antonio River, including the famous River Walk that runs through the city. Mast testified that in 2015, SARA collected 100 tons of trash and spent 3,000 man hours, plus additional contractors’ time, cleaning up litter in their jurisdiction.

This effort equated to several millions of dollars spent on staff and equipment.

“We’re collecting thousands of pounds of trash after a rain event and it’s taking up an enormous amount of time,” he told lawmakers.

Later in May 2016, the same House committee heard testimony on an additional charge relating to illegal dumping of scrap tires.

Delta Lake Irrigation District, which has the largest amount of irrigated agriculture of the 26 irrigation districts in the Lower Rio Grande Valley, consistently struggles with the cost of tires and dumped debris. Yet, without dedicated enforcement or state funding, it, too, foots cleanup and disposal costs from its general revenue. “This cost … is a cost that our district has had to put in its budget for cleaning (and disposal), and in the past we weren’t faced with this issue,” said Troy Allen, General Manager

approximately $22 million from new property added to the tax rolls in the 2014-2015 budget year and in that same year the community spent more than $21 million to curb or clean up litter and illegal dumping.

“Multiple entities and departments, overlapping jurisdictions, budgetary constraints– it’s a tricky issue but once you add up the costs, it puts the problem into perspective,” said Maia Corbitt, governmental consultant with Booth, Ahrens and Werkenthin, a water and environmental law firm. “This is a great study, but there is much left unanswered,” Corbitt added, “including which methods are the best at reducing the amount of materials being littered and illegally dumped. It also does not show how litter and dumping takes a toll on the states watercourses.”

Responding to growing concerns, the state legislature held two interim charges to study the effects of windblown and waterborne litter along with aesthetic water quality standards for surface water management entities. The Senate committee on Agriculture, Water, and Rural Affairs produced a report that sited a dramatic increase of more than 80 percent in litter on state farm-to-market roadways, which constitute the largest amount of centerline road miles in Texas – 28,861 more than the U.S. highways miles in the state. Phil Kelley, general manager with the Jefferson County Drainage District No.7 and current TWCA president connected the dots for residents and lawmakers, who may have not realized that roadside litter, and litter in general, does not stay put. At the House Committee on Environmental Quality Kelley testified that during rain events, no matter how hard the nearby city of Port Arthur tried, his drainage district saw a flood of litter.

27

Pieces of Litter in Millions

TXDOT Roadside Litter Survey of Delta Lake Irrigation District.

Like SARA, Allen said that his 1,600 district regularly works with the 1,400 nearby county to help ensure 1,200 waterways remain clear of debris 1,000 Texas communities clearly benefit, economically, in ensuring their 2009 800 waterways are clean and trash2013 600 free, especially when tourism is 400 concerned. A 2014 economic study commissioned by a partnership 200 of the City of San Antonio, San 0 FM Roads Interstate State U.S. Total Litter Antonio River Authority, and Highways Highways the Paso Del Rio Association 2013 TXDOT Litter Survey determined approximately 11.5 million people visit the San TXDOT Roadside Litter Survey Antonio River or the River Roadway Centerline Number of Littered Items % Change Type Miles 2009-2013 Walk each year – generating an 2005 2009 2013 estimated $3.1 billion annually FM Roads 40,965 430,709,842 528,823,879 954,821,303 81% for the local economy and Interstates 3,233 72,971,697 94,121,255 77,614,712 -18% supporting 31,000 jobs.

State 16,331 170,488,104 260,656,708 291,159,745 12% Highways “So, if the river’s not clean, U.S. it’s impacting us, the city of 12,104 153,035,881 218,168,944 157,019,311 -28% Highways San Antonio, and Bexar County TOTAL: 72,633 827,205,524 1,101,770,786 1,480,615,070 34% immediately,” Mast said. These testimonies and recent study, 2013 TXDOT Litter Survey taken together, paint a picture of a litter and 1094, which established a successful model for dumping problem that is costing millions of state coordination of the Water Conservation taxpayer dollars across multiple jurisdictions.

Implementation Task Force.

And while area nonprofits and municipalities “Illegal dumping and litter — roadside, seem to be working well together, these windblown or waterborne — doesn’t recognize collaborations may not be broad enough to municipal boundaries,” said Michael Booth, encompass the scope of the problem. State president of Booth, Ahrens and Werkenthin. “It’s and regional coordination may offer additional going to take a coordinated effort from multiple tools for these efforts. Both democratic and sides to tackle this problem as our state’s republican lawmakers have continued the population continues to grow.” interim’s effort to address issues of litter and illegal dumping before it becomes more overwhelming. This session. House Bill 1884, filed by Rep. “Doc” Anderson, R-Waco, would add a community service requirement for litter violators. House Bill 2140, filed by Rep. Ryan Courtney Griffin currently does Guillen, D- Rio Grande City, also sets out to communications and research tackle litter and illegal dumping. If passed, it work for Booth, Ahrens and gathers together a statewide group to determine Werkenthin, a water and environmental law firm in the best management practices and funding Austin, Texas. Previously, she mechanisms to solve the problem of windblown was an award-winning journalist and waterborne litter. This bill is modeled for multiple newspapers. after the 78th Regular Session’s Senate Bill 639

28

SAWS Opens Brackish Desalination Plant at H2Oaks Center

By Bill Stein, P.G., Richard Donat and Saqib Shirazi, P.E.

Figure 1. Photograph from the Grand Opening.

San Antonio Water System (SAWS) recently opened a new desalination plant to treat slightly salty, or brackish, water from the Wilcox Aquifer, further adding to San Antonio’s increasingly diverse water supply portfolio.

The reverse osmosis (RO) plant had its grand opening January 27, 2017 (Figure 1). The first phase will produce up to 10 million gallons per day (MGD) of permeate that will be added with up to 2 MGD of raw water bypass blend for a total water capacity of 12 MGD. The SAWS brackish wellfield and plant is located at the H2Oaks Center in southern Bexar County which also encompasses the existing SAWS aquifer storage and recovery (ASR) and local Carrizo production (Figure 2). The ASR stores excess water from the Edwards Aquifer during wet times in the Carrizo Aquifer, which is later pumped out and returned to the city during drier times. The local Carrizo wells

produce freshwater from the Carrizo Aquifer while controlling groundwater drift of the stored ASR water.

SAWS began exploring the brackish option in 2005. Initial studies looked at brackish water resources in the San Antonio area with evaluation of existing data such as oil and gas geophysical logs. Next, the drilling, completion and testing of the first test wells took place in 2008. The first eight production wells and first injection well were constructed in 2012. The last four production wells, second injection well, pipelines and treatment plant were constructed from 2014 to 2016.

The brackish water supply for the desalination project is produced from the lower Wilcox Formation, which consists of silty sands within the interbedded clays at depths ranging from 1,200 to 1,600 feet below ground level. The lower Wilcox is below the Carrizo Aquifer and 29

that will provide opportunities for SAWS to partner with local universities in order to advance the science of desalination and concentrate disposal. The plant is designed to treat 11.1 million gallons per day (MGD) of brackish water with average total dissolved solids (TDS) of about 1,500 milligrams per liter (mg/l) to produce 10 MGD of clean permeate with 1.1 MGD of waste concentrate.

One challenge in developing the SAWS desalination project is the silt and associated turbidities that the production wells yield. A silt density index (SDI) is a measure of the fouling capacity of water in the RO systems. The SDI test measures the rate at which a 0.45-micron filter is plugged when subjected to a constant water pressure of 30 pounds per square inch (psi) averaged over a period of time such as 15 minutes. SDI values greater than five are a concern for an RO membrane plant.

Because of the inherent nature of the finer grained sediments of the lower Wilcox Aquifer, the water from the wells can have some turbidity and silt. When the wells first come online they produce more turbid water. This initial water is discharged until turbidities decline and the water can be sent to the plant.

Additionally, to provide polishing of the raw water and to minimize impacts to the RO system, pre-treatment utilizing five micron cartridge filters are used to help remove additional silt and sand from the wells prior to being treated in the RO system. These cartridge

is hydraulically separated by the clays of the upper Wilcox Formation (Figure 3). Water from the Carrizo and Wilcox is treated in two plants located on the same property. Each production well produces about 700 to 1,000 gallons per minute (gpm) of brackish water.

Injection wells are utilized for concentrate disposal, which are completed into Edwards limestone at depths of about 5,000 feet and separated from the Wilcox sands by about 2,300 feet of mostly clay formations (Figure 3).

The TDS of the native injection formation is approximately 90,000 mg/L. The injection wells are located 18 to 20 miles down dip and across several major faults and therefore hydrologically isolated from the freshwater portions of the Edwards Aquifer currently utilized by the city.

The injection wells handle about 300 to 400 gpm of concentrate disposal per well. SAWS was the first to go through the TCEQ Class 1 UIC General Permit approval process, which was created to streamline the injection well approval process for disposing of concentrate from a municipal desalination operation.

The RO treatment plant includes a public education component that allows the public to enter and tour the facility safely without disrupting operations. Since the plant’s opening, SAWS tours have consisted of a wide array of audiences ranging from technical and educational groups to San Antonio residents and policy makers. In addition, SAWS constructed a designated research space within the facility

Figure 3. Geologic section of the production and injection intervals for SAWS Brackish Project.

30

filters are in large stainless steel vessels located in front of the treatment skids containing pressure vessels with the RO membranes (Figure 4). The cartridge filter housings are oriented horizontally for ease of access during cartridge replacement.

Cartridge filter replacement frequency will vary based on water quality, but SAWS anticipates replacement every six weeks.

Another concern associated with RO membrane plants is iron (Fe) fouling. In order to reduce the probability of iron fouling, the membranes, well conveyance and RO systems operate as a closed system with no introduced oxygen.

Additionally, a pre-treatment utilizing acid and antiscalent is added in the source water prior to the raw water entering the RO system. This pre-treatment lowers the pH of the feed water which keeps constituents in solution and prevents scaling deposits on the membranes.

The RO system is designed for three stages to obtain about 90 percent water recovery and utilization.

The feed water to the RO treatment requires additional pressurization to produce the reverse-osmotic pressure needed to force water through the membranes. The amount of pressure required is based on the quantity and type of dissolved solids, the temperature of the water, and the amount of water produced.

Figure 2. Location Map for SAWS Brackish Project.

Figure 4. Foreground-right is stainless steel filter vessels for cartridge filter.

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Based on the design parameters, the primary two-stage RO skids require a feed pressure of 125-175 psi, which will be accomplished by additional pumps. The skids for the third stage of the RO system require a higher feed pressure of about 200-250 psi.

The membrane elements for the RO skids are a standard eight inch diameter, spiral-wound with thin film composite polyamide membranes.

The skids are designed using standard eight inch fiberglass pressure vessels (Figure 4). Each primary RO skid has hundreds of membranes and operate in a two-stage configuration, with the concentrate from the first 40 stage pressure vessels providing the feed water to the 20 pressure vessels in the second stage. About 80 percent recovery will be achieved within the first two stages. The extra recovery will occur in the third stage of treatment. All the membranes will undergo periodic cleaning in place to maintain optimal membrane performance and extend membrane life. The SAWS team anticipates that regular maintenance of the RO membranes will help them last five to ten years.

The TDS of the water treated by the RO system (permeate) has a finished concentration of about 20 to 50 mg/l. The desired TDS of the finish water is compatible with existing supplies. As a result, between 10 and 20 percent of the raw water bypass can be blended back with the RO permeate. Additional posttreatment such as calcium addition and pH adjustment occur to match existing SAWS water supplies from the Edwards Aquifer. The water is then chlorinated before leaving the RO plant site and transferred by pipeline to the ground

storage tank clearwells prior to distribution to the city. The brackish supply has flexibility to be sent via a newly constructed pipeline into the western high growth portion of the city or a pipeline into the eastern portion.

SAWS started testing the entire system in mid-2016. To perform the functional test, the entire system was divided into 20 sub-systems; each sub-system was tested to demonstrate that the program assets meet the performance and reliability requirements of the plans and specifications. SAWS used both potable and production well water to perform the test. After successfully completing the functional test, and other start-up activities, on November 9, 2016, SAWS BGD plant started sending treated RO water to the distribution system. Since the plant is relatively new, SAWS’ operation and engineering staff continue to collect and review valuable data from the online data historian.

This information will help determine ways to optimize the performance and efficiency of the plant.

Future phases of the brackish desalination plant are planned for another 12 MGD and 6 MGD to bring the total capacity up to 30 MGD. The treatment plant is master designed to accommodate the future expansions.

Richard Donat is a Water Resource Planner at San Antonio Water System (SAWS), contributing to the development of a new brackish groundwater supply for the city of San Antonio. He began working for SAWS in 2010. Richard can be reached at (210) 233-3556 or rdonat@saws.org.

Bill Stein is Associate Vice President with LBG-Guyton Associates in San Antonio.

Bill has work in the groundwater industry for over 30 years with LBG-Guyton Associates and the U.S. Geological Survey. Bill is a P.G. in Texas and past president of the GWS division of the TGWA. Bill can be reached at (210) 5901331 or bstein@lbg-guyton.com.

Saqib Shirazi is a project manager at San Antonio Water System (SAWS). He began his career at SAWS in January 2013 as a project engineer in the desalination engineering team. Saqib can be reached at (210) 233-3556 or sshirazi@saws.org.

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TWCA Board of Directors 2017-2018 PHIL KELLEY President MICHAEL J. BOOTH President-Elect JOHN W. GRANT Immediate Past President DRAINAGE DISTRICT

Mike Yost, Pearland – 2019 (Chair) Kim Carroll, Beaumont – 2019 (EC) Don Carona, Orange – 2019 Chris Gallion, Clute – 2020 Andre’ McDonald, Sugarland – 2018 Alan Moore, Harlingen – 2020 J.L. Rose, Brookshire – 2018

GENERAL & ENVIRONMENTAL

Timothy Brown, Austin– 2020 (Chair) Martin Rochelle, Austin– 2019 (EC) Carolyn Ahrens, Austin– 2018 David Harkins, Austin– 2020 Robert M. Johnson, Dallas– 2019 Tom Ray, Waco– 2019 Ed Shackelford, Woodlands– 2018 GROUNDWATER Jim Conkwright, Lubbock– 2019 (Chair) Kathy T. Jones, Conroe– 2018 (EC) Dirk Aaron, Belton– 2020 Joe B. Cooper, Stephenville– 2019 Drew Satterwhite, Denison– 2019 John Seifert, Houston– 2020 Brian Sledge, Austin– 2018 INDUSTRIAL James Kowis, Austin– 2019 (Chair) Glenn Lord, Freeport– 2018 (EC) Ricky Clifton, Houston– 2020 Gary Gibbs, Austin– 2018 Jimmie Schindewolf, Houston– 2019 Sara Tays, Austin– 2019 Paulina Williams, Austin– 2020

IRRIGATION

Sonny Hinojosa, San Juan – 2020 (Chair) Glenn Jarvis, McAllen – 2018 (EC) Troy Allen, Edcouch – 2019 Tom McLemore, Harlingen – 2020 Kyle Miller, Wichita Falls – 2019 Tito Nieto, Los Fresnos – 2019 Steve Walthour, Dumas – 2018

MUNICIPAL

Wayne Owen, Fort Worth – 2020 (Chair) Fiona Allen, Arlington – 2018 (EC) Fred Arce, San Antonio – 2020 Jun Chang, Houston – 2019 Heather Cooke, Austin – 2019 Denis Qualls, Dallas – 2019 Hope Wells, San Antonio – 2018 NAVIGATION & FLOOD CONTROL Lyn Clancy, Austin – 2018 (Chair) Tom Gooch, Fort Worth – 2019 (EC) Carolyn Brittin, Austin – 2020 Frank Brogan, Corpus Christi – 2020 Patrick Brzozowski, Edna – 2018 Doug Caroom, Austin – 2019 Mary Beth Stengler, Anahuac – 2019 RIVER AUTHORITIES Kevin Ward, Arlington – 2019 (Chair) Walt Sears, Hughes Springs – 2019 (EC) Scott Hall, Beaumont – 2019 John Hofmann, Austin – 2020 David Montagne, Orange – 2020 Kent Satterwhite, Sanford – 2018 Cole Walker, Big Spring – 2018 UTILITY DISTRICTS John Chisholm, San Antonio – 2018 (Chair) Michael F. Thuss, San Antonio – 2019 (EC) Darrell D. Grubbs, Mt. Pleasant – 2018 Kelley Holcomb, Lufkin – 2019 Donna Howe, Austin – 2019 David Weidman, Mount Vernon – 2020 Christopher Wingert, Abilene – 2020

LEROY GOODSON GENERAL MANAGER EMERITUS

Indicates new board members

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PAST TWCA PRESIDENTS Franklin B. Moon, Houston John H. Specht, Pocatello, ID R.H. “Bob” Parker, Houston Fred N. Pfeiffer, San Antonio Sam. F Collins, Newton Ronald J. Neighbors, LaGrange James P. Murphy, Angleton Danny F. Vance, Arlington Robert Lee Johnson, Dallas Robert J. Huston, Austin Con Mims, Uvalde Alan H. Plummer Jr., Fort Worth James M. Oliver, Fort Worth Robert Wagner, Crystal City A.T. “Tommy” Hebert Jr., Beaumont W.E. “Bill” West Jr., Seguin C.E. Williams, White Deer Wayne Halbert, Harlingen Robert H. Lloyd, Austin Joseph J. Beal, Bastrop Peggy W. Glass, Austin Gregory E. Rothe, Hondo John E. Burke, Bastrop Jerry L. Clark, Buna M. Jeff Taylor, Houston Sonia Lambert, San Benito James M. Parks, Wylie Luna Buckner, Hondo Phillip J. Ford, Waco Robert J. Brandes, Austin John W. Grant, Big Spring

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How well do you know your TWCA staff?

We are trying something new. We thought it would be fun to ask each other random questions to learn more about our staff and then share our responses with all of you. The answers may or may not surprise you.

Question: What did you want to be when you grew up? Still don’t know?

Question: Where is your favorite place to be?

STACEY

DEAN My first major in college was architecture, but I soon realized I wasn’t much of an artist. I ended up switching to engineering and the rest is history.

Creede, Colorado, where you can find me hiking in the San Juans or fly fishing the headwaters of the Rio Grande.

Question: Who is your favorite band from the 80s?

Question: What is your favorite TV show?

LISA

ADELINE

Do I have to pick one? This is hard. I guess I would say Duran Duran and Fleetwood Mac.

If I’m wanting to laugh it’s Parks & Rec or The Office. For action and pure drama, it is hands-down Game of Thrones.

Question: Where would you live if you could live anywhere in the world?

BECKY I would like to live in Australia.

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Thank you to all our Confluence Sponsors for making this publication available to our members.

PLATINUM Bickerstaff Heath Delgado Acosta LLP Sabine River Authority of Texas GOLD Brown & Gay Engineers, Inc. Halff Associates, Inc. INTERA, Inc. Lloyd Gosselink Rochelle & Townsend, P.C. San Jacinto River Authority SILVER Barton Springs/Edwards Aquifer CD Northeast Texas M.W.D. Upper Neches River Municipal Water Authority BRONZE Blanton & Associates, Inc. LRE Water, Inc. NewGen Strategies & Solutions, LLC.

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