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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 granted.
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 requirements.
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.