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SB 1738, if passed, would make a number of changes to the
Water Code, in order to facilitate the creation of a legal regime for desalination
facilities which would provide drinking water to Texas. (The first section of
the bill is essentially a statement of intent which does not affect the code.)
Each numbered section of the bill, ten total, will be dealt with in turn.
(Emphasis of Section 11.156 of the Water Code, which deals with water supply
sources is a key component for the creation of this regime.)
Section 2 of the bill notes that the obligations of the
Commission as they exist in other sections of the code are not modified.
Section 3 introduces the first substantive change to code, by describing what
areas may be considered “water supply entities”. (The technical discussion
here, as well as Section 11.156 of the Water Code are key to the creation of the
desalination regime that this bill seeks to create.) It also notes that treated
marine seawater may only be conveyed if specific authorization has been
Section 4 is brief and adds a reference to 11.156 of the
Water Code to permitting requirements. Section 5 amends Subchapter D, Chapter
11 of the Water Code by incorporating the “water supply entity” definition.
This definition includes retail public utilities, wholesale water suppliers, or
irrigation districts. Section 5 also deals with points of diversion, and
seawater solids concentrations. Namely, a water supplier is not required to
attain a permit if their diversion point is more than six miles from shore, not
located in a bay or estuary, and if the water in question meets certain
concentration specifications. Section 5 also lists specific discharge
The final part of Section 5 states that the Parks and
Wildlife Department and the General Land Office are to conduct a study to
identify those zones in the Gulf of Mexico which are appropriate for the
discharge of marine seawater. This report is to be delivered no later than
September 1st 2020. Until this report is delivered, and until the
Commission develops its own rules, all water supply entities must still consult
with the Parks and Wildlife Department and the General Land Office regarding
marine water diversion.
Section 6 of the bill adds a small addition to the seeking
opportunities to develop large-scale desalination facilities. Section 7 of the
bill would add new language to the code regarding the discharge of treated
marine seawater or waste products produced during desalination procedures. Key
components of this section are those which state that treated seawater must
adhere to standards that are at least as stringent as those adopted by the
Commission, other state agencies, and the federal government. It also states
that waste products may not be discharged into a bay or estuary, and reiterates
the roll of the Department of Parks and Wildlife, and the General Land Office.
(All future discharge zones will be determined by these two agencies.
Section 8 of the bill adds additional requirements on that
water which would go through the desalination process for the purpose of
providing drinking water. Section 9 repeals a section of the Water Code.
Section 10 is the standard note for when the bill would come into effect.
SB 1738 is a rather involved bill, which makes a number of
important changes to the Water Code, but ultimately it goal, to create a
functional desalination regime, is clear enough. The changes made clearly point
back to this goal. It is our view that the management of water resources is a
legitimate function of the state, and the creation of a viable desalination
regime an important component of that water management role. Given that desalination, both from
brackish and marine sources, is likely to become more prevalent in the future, and
given the water pressures placed in Texas, the construction of a legal
structure around desalination is prudent.
Also helpful is the fact that SB 1738, unlike some other
bills, does not create any perverse incentives. Though a few specific pieces of
the bill could likely be improved, it is, on the whole, a beneficial addition
to the legal code, anticipating likely future water developments in Texas.
Given that water resource management has been institutionalized as a legitimate function of the
state, we support SB 1738.