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Wastewater Wars: Reuse Projects in Texas

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As Texas continues to grapple with an impending deficit of water supplies to meet its future water demands, many water purveyors are looking to their existing resources to meet such needs. Although many water purveyors have already begun planning direct reuse projects, also known as “flange-to-flange” reuse, others have begun to realize the value of wastewater treatment plant discharges. Depending on the quality and type of effluent produced, indirect reuse projects, also known as “bed-and-banks” reuse, may be even more valuable than direct reuse projects. Many entities are now realizing that large quantities of relatively high quality reclaimed water has for too long been considered a waste stream or liability rather than a resource. Generators of waste streams in the Trinity River Basin are no exception. This realization, in turn, has generated some degree of conflict between surface water rights holders whose water rights may be made more reliable by upstream return flows, and the generators of those flows, who value the water supply that can be made available from reuse of such return flows. This conflict has and will result in competing applications for reuse of return flows and a heightened awareness among Trinity River Basin interests of the significance of indirect reuse projects. When the interests of environmentalists, who logically view effluent return flows as reliable, high quality base flows in many streams, are also considered, the conflict grows even larger.

Indirect reuse projects require surface water rights that are issued by the Texas Commission on Environmental Quality (the “Commission”). Indirect reuse projects seek to appropriate the return flows discharged from municipal wastewater treatment plants, and the transport and rediversion of those discharges, less stream carriage losses, at point(s) downstream for subsequent reuse. The diversion and reuse of historical discharges of surface water-based return flows is considered a new appropriation of state water. The law treats differently the indirect reuse of return flows that are the product of groundwater, which also requires Commission approval, but is not considered a new appropriation. This distinction has given rise to a number of recent policy questions from the Commission regarding whether certain types of indirect reuse projects should be issued within the priority scheme of the prior appropriation system, what kind of notice requirements should be applied, and whether one entity should be allowed to appropriate the discharges of another.

There are a number of reasons that water purveyors in the Trinity River Basin, and elsewhere in Texas, are pursuing indirect reuse projects. First, discharges of return flows provide a continuous, relatively firm source of water supply, much like a daily rainstorm on a watershed. Second, by utilizing a state stream to convey return flows, entities can often reduce conveyance costs. Moreover, the conveyance of return flows may also provide meaningful base flows in a watercourse, which have considerable value for aesthetic and environmental flow purposes. Finally, many entities are considering indirect reuse projects in light of the long lead time associated with accessing other new sources of water supply. Entities that may be considering new reservoirs or other large-scale water supply projects most likely have lengthy timelines projected to get those resources permitted, designed, and constructed. Indirect reuse projects often require limited infrastructure, and if permitted prior to discharge, they should require limited technical review from a water rights permitting perspective.

Indirect reuse projects certainly represent the current frontier with respect to water supply. Indeed, a review of pending water rights applications at the Commission indicates upwards of 20 indirect reuse applications are currently under review, and these applications seek to appropriate hundreds of thousands of acre-feet of return flows. Many of these projects are being pursued by Trinity River Basin interests. According to the 2002 State Water Plan, reuse projects were expected to provide Texas with approximately 435,000 acre-feet of water supplies in the future. The preliminarily-approved new regional water plans suggest that reuse is even more important – over 1 million acre-feet of reuse projects are included in those plans. This reliance on reuse, particularly indirect reuse projects, to meet future demands for water, will serve to amplify the potential for dispute, contested case hearings, and litigation among surface water interests and with environmental groups.

As more entities recognize the value of their return flows as a water supply resource, and as a market for such flows further develops, Texas will likely see a host of new indirect reuse projects being pursued to meet future water supply demands. Water suppliers should carefully consider their future water needs, whether return flows can help address those needs, and whether such projects have the capability of harming other water rights holders or environmental interests.
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Document Type: Research Article

Publication date: 2006-01-01

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