Water Supply Options for School Facilities -
Exploring Alternative Sources to Address Water Demands for District Projects
By Trey H. Nesloney, Shareholder
When a school district analyzes locations for construction of potential facilities, water supply is often a key component of that evaluation. At times a location does offer easy access to an established and affordable municipal water supplier to whom a district can simply “hook up.” With an existing system, a school district will hope to pay a reasonable rate for water of a quality and quantity sufficient to meet its needs. Unfortunately, that is not always the case. A school district may need to examine obtaining an alternative water supply in order to meet the demand for its project or explore options to supplement its primary supply due to water quality, quantity, or cost concerns.
THE CCN – A REQUIREMENT TO SERVE
The first step in evaluating water supply options is to first determine if there is an existing entity that has an obligation to serve. That can be done by checking if a retail public utility possesses a Certificate of Public Convenience and Necessity (“CCN”) to provide the location with water service. A CCN essentially gives a retail public utility[1] a monopoly to serve a certain area or areas with water, but in exchange the utility “shall render continuous and adequate service within the area or areas.”[2] Water Supply Corporations, Investor Owned Utilities, and Affected Counties[3] are required to obtain CCNs, and some municipalities and certain types of districts[4] obtain CCNs as well to protect their service areas or to serve within another retail public utility’s lawful service area.
The Public Utility Commission of Texas (“PUC”), which has jurisdiction over water and sewer service rates, now provides an online “Water and Sewer CCN Viewer.”[5] Interested parties can research whether a water (or sewer) service CCN is present in any area of Texas. One can search by address, CCN number, county, or legislative district.
If there is a CCN that covers the school district’s project area, then the retail public utility that holds that CCN is statutorily required to provide continuous and adequate service to the potential facilities. The school district can then purchase water from the utility at the water rates approved by the PUC. If no CCN is present, it may be possible to negotiate with a nearby utility about extending water service outside of that utility’s current service area. If that also fails, then a school district may need to examine other alternatives to meet its water supply demands.
THE REGULATORY WATER CYCLE
The key to grasping Texas’s regulatory scheme for water is understanding that water in a “watercourse”[6] is public water, owned by the State of Texas. Although water resources are interconnected, the ownership of water under Texas law changes depending on where the water is taken from the water cycle. When it rains, if water can be captured before it enters a watercourse (either from the air or on the surface of the land), it is privately owned. However, once this water enters a watercourse (for example a creek or river), its legal “character” changes, and it becomes state-owned surface water. Conversely, state-owned surface water in river can seep into the stream bed and on into an aquifer below the surface, changing the water’s legal character to privately owned groundwater.
State-owned surface water in a watercourse can be appropriated and used, but one must obtain a usufructuary right (a right of use) from the State of Texas in order to beneficially use it. Since most of Texas’s river basins are fully appropriated (meaning very little surface is available due to demand), it is difficult to obtain a perpetual water right to use surface water from a watercourse. That leaves mainly groundwater and diffused surface water as viable water supply alternatives.
GROUNDWATER REGULATION AND PRODUCTION ISSUES
If a school district owns property, including the groundwater estate associated with the land, then the groundwater beneath that property can be produced and used to address its water supply needs. Groundwater in Texas is privately owned by the landowner. Regulation of groundwater production depends on whether a Groundwater Conservation District (“GCD”) has been created with jurisdiction to regulate groundwater production from the property. The Texas Water Development Board (“TWDB”) provides a map listing the GCDs created in the State of Texas and providing each GCD’s jurisdictional boundaries.[7]
If a school district’s property is located where no GCD has been created, this property lies in what is referred to as a “white area” on the GCD map. If property is located in a white area, groundwater production from that property is only subject to the common law rule of capture. Under the rule of capture, a Texas landowner can produce as much groundwater as he or she wants as long as there is no malicious intent (take water just to hurt a neighbor), no waste, or no subsidence resulting from negligent drilling or pumping.
If a school district’s property is located within the jurisdictional limits of a GCD, then groundwater production from that property is subject to the local GCD’s rules. Depending on the powers given to GCDs in Chapter 36 of the Texas Water Code and the details associated with their creation, GCDs can require permitting and registration of groundwater wells, regulate the spacing and production from wells, and make and enforce rules to prevent waste of groundwater. Due to these broad powers, a school district that is considering using groundwater as a primary or supplemental water supply source should review the local GCD’s rules and have discussions with the GCD before determining whether to utilize its groundwater for that purpose.
There are numerous examples of Texas school districts utilizing groundwater to meet their needs. The Texas Commission on Environmental Quality (“TCEQ”) provides an online database referred to as the “Texas Drinking Water Watch,”[8] which provides information on Public Water Systems (“PWS”)[9] across the state. According to this database, there are at least 67 school districts in Texas with active water systems that utilize groundwater as the primary source of water. This means that these school districts not only utilize groundwater, but they also have formed a PWS in their name to treat the water to TCEQ standards for their intended uses.
DIFFUSED SURFACE WATER AND RAINWATER HARVESTING
Another water supply option for Texas school districts is utilizing diffused surface water. This is water on the surface of the land that has yet to enter a watercourse. “Texas law categorizes surface water into…two general types: diffuse surface water and water in a watercourse. Diffuse surface water belongs to the owner of the land on which it gathers, so long as it remains on that land and prior to its passage into a natural watercourse.”[10]
Utilizing water before it enters a watercourse has become more common due to the popularity of rainwater harvesting projects, which allow for collection of water that falls from precipitation before it soaks into the land or enters a watercourse. “Rainwater harvesting can be classified into two broad categories: land-based and roof-based. Land-based rainwater harvesting occurs when rainwater runoff from the land is collected in ponds and small impoundments before it has a chance to reach a watercourse, river or stream. Roof-based rainwater harvesting, on the other hand, involves collecting the rainwater that falls on a roof before the water reaches the ground.”[11]
“The Texas Manual on Rainwater Harvesting”[12] identified Kerrville Independent School District, Menard Independent School District, and Austin Independent School District as having installed and utilized rainwater collection systems prior to 2005. According to the TWDB, Hays Consolidated Independent School District installed rainwater harvesting systems at two of their campuses that opened in 2010.[13] Dripping Springs Independent School District was recognized as a TWDB Texas Rain Catcher Winner in 2017 for using three rainwater harvesting system components in its project at Sycamore Springs Elementary/Middle School. Two components are used for toilet flushing, and the third is used to harvest rainwater for irrigating school grounds.[14]
WATER REUSE
Instead of searching for new available water sources, school districts can also utilize water reuse as a way of addressing their water supply needs. Water reuse involves taking water that has been beneficially used for one purpose and treating the water so it can be beneficially used again. There are two types of reuse—direct reuse and indirect reuse. Direct reuse involves transporting the treated wastewater directly from the treatment location to the place of second use. Indirect reuse involves discharging treated wastewater into a watercourse and subsequently diverting that water for a second use downstream from that watercourse.
Wimberley Independent School District has received recent notoriety for its water reuse efforts as part of its adoption of the “One Water” concept at the Blue Hole Primary School. “The One Water movement is an approach to water management that seeks to integrate the management of all water resources (including drinking water, wastewater, stormwater and groundwater) in a more sustainable manner [by viewing] them as part of a single interconnected system.”[15] Instead of using the initial plans for Blue Hole Primary School that would have involved construction of a new lift station and sewer line that would have cost roughly $750,000 and would have come with water supply and potential runoff contamination issues, the District chose a water reuse system that was more cost effective (just under $450,000), reduced waste, and utilized non-potable water to flush toilets and to irrigate the school’s landscaping.[16] In the 2020-2021 school year, these water reuse innovations led to Blue Hole Primary School using 49.4% less water and paying $24,150 less in water utility costs than nearby Jacob’s Well Elementary School, despite Blue Hole Primary School having 39 more students.[17]
CONCLUSION
Water supply alternatives can help a school district meet water demand at potential facilities, and at times, these alternatives can provide more cost-effective solutions than the traditional method of paying an existing retail water provider for service. Understanding Texas’s regulatory water cycle can allow a school district to evaluate all the water supply options that are available for its projects. If a local retail water provider is not an option, utilizing groundwater, diffused surface water, or water reuse can often provide a supplement or even a cheaper primary solution to meeting water demands.
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[1] A “retail public utility” means “any person, corporation, public utility, water supply or sewer service corporation, municipality, political subdivision or agency operating, maintaining, or controlling in [the State of Texas] facilities for providing potable water service or sewer service, or both, for compensation.” Tex. Water Code § 13.002(19).
[2] Tex. Water Code § 13.250.
[3] These are counties within 50 miles of the US-Mexico border, which are granted specific authority by statute to provide water service or sewer service.
[4] Examples include municipal utility districts, fresh water supply districts, water control and improvement districts, and special utility districts.
[6] A watercourse has been defined by Texas courts as having: (1) a defined bed and banks, (2) a current of water, and (3) a permanent source of supply. See Domel v. City of Georgetown, 6 S.W.3d 349, 353 (Tex. App.—Austin 1999, pet. denied) (citing Hoefs v. Short, 114 Tex. 501, 273 S.W. 785, 786-87 (Tex. 1925)).
[9] A Public Water System is a “system for the provision to the public of water for human consumption through pipes or other constructed conveyances, which includes all uses described under the definition for drinking water. Such a system must have at least 15 service connections or serve at least 25 individuals at least 60 days out of the year.” 30 Tex. Admin. Code § 290.38(73).
[10] Domel, 6 S.W.3d at 353 (citing Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221, 228 (1936)).
[11] TCEQ Regulatory Guidance Document RG-445, revised November 2012, p. 1-2, available at https://www.tceq.texas.gov/downloads/drinking-water/rg-445.pdf.
[12] The Texas Manual on Rainwater Harvesting, Texas Water Development Board, Third Edition, 2005, available at https://www.twdb.texas.gov/innovativewater/rainwater/doc/rainwaterharvestingmanual_3rdedition.pdf.
[15] “How the One Water Movement Made Blue Hole Primary School a Leader in Water Reuse,” Bedigian, Louis, Building Safety Journal, March 5, 2024, available at https://www.iccsafe.org/building-safety-journal/bsj-technical/how-the-one-water-movement-made-blue-hole-primary-school-a-leader-in-water-reuse/.
[16] Id.
[17] Id.