TWCA Annual Convention

1. TEXAS WATER CONSERVATION ASSOCIATION
72nd Annual Convention
March 3, 2016
GCD’s Role in Protection of Water
Quality
Presented by:
William D. Dugat III
Bickerstaff Heath Delgado Acosta LLP
Brian Smith, Ph.D, P.G.
Barton Springs Edwards Aquifer Conservation District

2. • GCD general authority over water
quality
• Case studies

3. Section 36.0015 Purpose
• Conservation, preservation, protection, recharging; and
• “Prevention of Waste”
Section 36.001(8)(D)
• “Waste”
 Pollution or harmful alteration of groundwater by
saltwater or other deleterious matter
 Admitted from another stratum or
 From the surface

4. • No definition of “pollution”
• Ch. 26 defines pollution:
Alteration of water rendering it
harmful or impairs its
usefulness

5. • Rulemaking
 Degradation of water quality/prevent waste
• Permitting
 Applicant must avoid waste/protect
groundwater quality
 Satisfy construction standard to prevent waste
• Spacing and production limits
• Enter land to investigate and inspect conditions
relating to water quality

6. • Management Plan Goals – waste control and prevention
• GMA members review effectiveness of each district’s
management plan to prevent “waste”
• DFC provide balance between groundwater production and
conservation, preservation, protection, recharging, and
waste prevention
• GMA may contract to study water quality

7.  Monitor well
network
 Water well testing
 Financial assistance
for well plugging

8. BSEACD Recharge Project

14. Purpose of BMP
• Improve quality of water entering cave
• Increase flow into cave
• Providing more springflow during
periods of drought

17. Contaminant reduction over 5 storm events:
• 2,436 lbs of nitrogen as nitrate and nitrite
• 295 lbs of total phosphorous
• 190,480 lbs of sediment (total suspended solids)

18. • Uranium mining
• Injection wells
• Landfills

19. Uranium mining
• RRC has jurisdiction over exploration and surface
mining
 Cased uranium exploration well used for
exploration or rig supply producing > 40 acre-feet
must be registered with GCD
 If rig supply only producing > 40 acre-feet subject
to production and registering requirements
• TCEQ has jurisdiction over in situ mining
 Must report to GCD water quality and
groundwater production information

20. • Goliad County GCD protest of UEC uranium
mining operation:
 Reduce groundwater supplies
 Insufficient to protect water quality
 Restoration plan inadequate
 Contaminate USDW
• ALJ recommended remand, alternatively, denial
• TCEQ granted application

21. Disposal Wells
• TCEQ has exclusive jurisdiction for all
disposal wells except O&G waste
 Draft permit and notice must go to
GCD
• RRC regulates injection of saltwater and
other oil and gas waste

22. • GCD’s active in participating in RRC permitting of
disposal wells
 Not required to notify GCD
 Notify “affected persons” including city,
county, surface owner and well operators within
½ mile
 Affected person – person who has or will suffer
economic damage or actual injury
• 2014 Marathon Oil in Gonzales County
 ALJ determined Gonzales County UWCD
“affected person”
 Wells outside district
 Commissioners reversed

23. Landfills
• Post Oak Clean Green Landfill
• Guadalupe County GCD Rule 8.1
 Notice of landfill application must be provided to
district and
“In no event may waste or sludge be permitted
to be applied in any manner in any outcrop
area of any aquifer within Guadalupe County
Groundwater Conservation District”
• October 2013, Post Oak Clean Green files application
for landfill over Carrizo-Wilcox
• April 2014, GCD files declaratory judgment action

24. • November 2014, TCEQ intervened and filed plea
to jurisdiction
 TCEQ has exclusive jurisdiction
 Improper attempt to stop TCEQ from acting on
permit
• Jurisdictional pleas overruled and GCDs partial
MSJ granted:
 Not preempted in prohibiting waste over
aquifer
 Rule constitutional and not vague
 Post Oak Clean Green violated Rule 8.1

25. • Denial of pleas to jurisdiction appealed by TCEQ
and applicant
 GCD’s claim not ripe; no injury unless TCEQ
permit granted; ripe after TCEQ acts
 Lacks standing: did not allege a reasonable
injury for failure to receive notice of
application
 Claim barred by exclusive jurisdiction – Solid
Waste Disposal Act
 Oral argument March 10, 2016

26. TEXAS WATER CONSERVATION ASSOCIATION
72nd Annual Convention
March 3, 2016
GCD’s Role in Protection of Water
Quality
Presented by:
William D. Dugat III
Bickerstaff Heath Delgado Acosta LLP
Brian Smith, Ph.D, P.G.
Barton Springs Edwards Aquifer Conservation District