A bid by San Antonio's water utility to declare ownership of the sewage it treats and releases has sparked a regional tug-of-war — one that could become more common as Texas' thirsty water users struggle to protect their supplies.
Every year, the San Antonio Water System treats close to 33 billion gallons of wastewater and discharges it into the San Antonio River. (Another 8 billion gallons are treated and used by golf courses and industrial customers.) Because Texas water law says all surface water is owned by the state, the city effectively cedes ownership of it once it is released into the river.
“What we’d like to do is to get authorization to retain ownership of that water, even after it’s put into the river," said SAWS spokesman Greg Flores III. "We do own that asset. Our ratepayers own that asset."
That means applying for what is called a "bed and banks" permit to the water, which stakes an owner's claim to released flows even when they're in a public waterway. SAWS submitted its application at the end of last year, and the Texas Commission on Environmental Quality will likely take several months to review it.
But water users downstream from San Antonio's wastewater treatment plant say the application, if approved, could severely limit their water resources, especially in times of drought. The San Antonio River flows into the Guadalupe River and then down to San Antonio Bay, and many significant water users lie along that route.
Bill West, general manager of the Guadalupe-Blanco River Authority, a water supplier and hydroelectric provider for 10 South Texas counties, said it would present a major challenge. For decades, the GBRA and companies including Dow Chemical have held water rights that depend on SAWS' wastewater, he said. "In dry years, those water right holders use the majority of that water," he added.
SAWS disputes that. Steve Kosub, a lawyer for the water utility, said most of GBRA’s permits were issued long before the San Antonio Water System began discharging wastewater into the river, and that its water primarily comes from the Guadalupe River.
Still, SAWS acknowledges that its permit application may irk some downstream water rights holders. If the TCEQ finds that any other water rights would be affected, the agency would likely put special conditions on the permit to prevent hardship.
SAWS' application marks a notable reversal from the policy of decades past, when wastewater was considered a liability because it would spoil the rivers into which it was dumped.
Martin Rochelle, a water lawyer for the Austin-based firm Lloyd Gosselink, said that in the past, water suppliers preferred not to have ownership of the wastewater once it left a sewage treatment plant, "because my gosh, when you dirty [a river] up, you want no liability." Today, he said, "the opposite is true."
That's because most wastewater now is treated to meet much higher standards. The San Antonio River actually benefits from SAWS' wastewater, which is believed to have revived species that had previously dwindled.
CPS Energy, the city's electric utility, has a permit to divert roughly 16 billion gallons of SAWS' wastewater each year. SAWS says that for now, it simply wants ownership of the remaining wastewater so that it can flow down to San Antonio Bay to protect the habitat for species like the endangered whooping crane, the focus of a high-profile federal lawsuit that could threaten the state's water supplies and planning process.
Rochelle says he believes SAWS has the legal basis for a permit, in part because of a law passed by the Texas Legislature in 1997 that details how an entity can "indirectly reuse" water. The law gives an advantage to cities like San Antonio that rely on groundwater from the Edwards Aquifer because Texas law treats groundwater as private property.
If SAWS were seeking ownership of wastewater derived from publicly owned surfacewater, Kosub said, "it would be a very different conversation, much more difficult."
But not everyone thinks SAWS will gain easy access to the permit. The wastewater is "state water for appropriation by other users downstream," said West, of the Guadalupe-Blanco River Authority.