SAN ANTONIO, Texas (KAMR/KCIT) – As the 2022 Texas Groundwater Summit continued in its second day, data and policy stood as omnipresent themes for speakers and events. Summit participants were given a range of legislative explanations and updates throughout the morning, including panels of legislators and water managers. The afternoon, meanwhile, was split into two blocks of optional tracks that participants could attend according to preference, covering data-centric project updates and topics regarding the fine details of water management workflow.

Here is an overview and a few things to know about day two of the 2022 Texas Groundwater Summit, including a look at the panels, assorted speakers, and project updates.

What’s the deal with WOTUS?

Executive Director of the Water Environment Association of Texas, Julie Nahrgang, offered an overview of Waters of the United States, or WOTUS, and its related policies while marking the upcoming 50th anniversary of the Clean Water Act.

According to the EPA, the 1972 amendments to the Clean Water Act established federal jurisdiction over “navigable waters,” which are now known as “waters of the United States.” However, the Clean Water Act doesn’t define WOTUS specifically, leaving discretion for the EPA and the US Army Department to define it in regulations.

Because of the fluidity of the definition, the boundaries between what is considered navigable waters under federal oversight and what bleeds into state or private property have shifted due to changing court rulings, along with things like presidential policies and regulations from the EPA and the US Army Department.

Nahrgang highlighted three Supreme Court decisions that have addressed the definition of WOTUS over the decades, including:

• United States vs. Riverside Bayview Homes, Inc. (1985)
  • The Supreme Court of the United States (SCOTUS) deferred to the US’ assertion of jurisdiction and said that adjacent wetlands to navigable waters fall under WOTUS because they are “inseparably bound up” with navigable waters, and most have “significant effects on water quality and the aquatic ecosystem” of those waters.
    • The US Army Corps of Engineers defines WOTUS as waters used for interstate or foreign commerce, interstate wetlands, and “all other waters” that could impact interstate or foreign commerce if destroyed or degraded.
• Solid Waste Agency of Northern Cook County vs. US Army Corps of Engineers (SWANCC) (2001)
  • SCOTUS rejected a claim of federal jurisdiction over non-navigable, isolated, intrastate ponds that lack much connection to traditional navigable waters, and said that the term “navigable” must be given meaning with the context and application of the statute. Because of that, SCOTUS said that migratory birds using “isolated” non-navigable intrastate ponds was not a sufficient base by itself for exercising federal regulatory authority.
    • For example, if the US Army Corps of Engineers wanted to regulate a prairie on the High Plains full of playa lakes, they could not do so only because those lakes are used by migratory birds.
• Rapanos vs. the United States (2006)
  • A four-justice plurality said that WOTUS includes “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes,’” and ‘‘wetlands with a continuous surface connection’’ to a ‘‘relatively permanent body of water connected to traditional interstate navigable waters.’’ 
    • In a concurring opinion, Justice Kennedy said that “‘‘to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.’’ He stated that adjacent wetlands possess the requisite significant nexus if the wetlands ‘‘either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’’’ 
  • Four dissenting Justices, meanwhile, said that the term “waters of the United States” encompasses all tributaries and wetlands that satisfy either the plurality’s standard or Justice Kennedy’s.

Currently, according to the EPA and Nahrgang, the EPA and the US Army Corps of Engineers are interpreting “waters of the United States” according to the pre-2015 regulatory measures until further notice. While this means that groundwater sources are no longer actively excluded from being considered WOTUS, the exact definition, and circumstances in which groundwater would be considered WOTUS are not entirely settled.

However, as noted by Nahrgang, SCOTUS is expected to hear and rule on the next case regarding WOTUS definitions in the next year with Sackett vs. EPA, which will see oral arguments in October and may see a ruling in the summer.

On a state level, Texas differs from federal regulations in that all surface water belongs to the state, and can only be used with the state’s permission due to Texas Land Application Permits. Water rights regarding private ownership, state ownership, and federal ownership, as well as the interactions between those and those of other people or states, continue to be a complex and ever-evolving topic for policymakers and day-to-day citizens.

The state of Texas water

Brian Sledge, a managing partner with SledgeLaw Group, followed Nahrgang with an update on Texas water regulations, including discussing upcoming elections, sunset advisories, and topics from recent committee hearings.

Both the Texas Senate Committee on Water, Agricultural & Rural Affairs and the Texas House Natural Resources Committee hosted hearings in the last months, and the Texas Water Conservation Association is expected to host its fall conference in October. Amid these, according to Sledge, legislators and water management experts have been working to examine Texas groundwater management, water utility, and supply issues, as well as discussing policy changes to be put forward in the next legislative session.

These committees are especially important, noted Sledge, because of the scheduling and pacing of Texas’ legislative sessions. Because the sessions are so short, most debate and policy setting happens in the interim committees.

Also regarding committees and the upcoming legislative session, Sledge said that most of Texas’ natural resource-related agencies are under review from the Texas Sunset Advisory Commission, which is intended to evaluate agencies and issue recommendations for changes as well as set dates for when agencies will be abolished. The Texas Commission on Environmental Quality (TCEQ), the Texas Water Development Board (TWDB), the Public Utility Commission of Texas, and the Texas State Soil and Water Conservation Board are among those up for review.

More information on elections and voting in Texas can be found here.

Groundwater Management: When everyone wants a piece of Texas

Following Sledge’s update, a range of water management experts and community leaders gathered to discuss water management and growth in Texas. The individuals who participated included:

• Moderator: Natalie Ballew, Groundwater Technical Assistance Manager for the Texas Water Development Board
• Scott Brooks, Director, Clearwater UWCD
• Bill Dugat, Partner, Bickerstaff Health Delgado Acosta LLP
• Mike Keester, Principal, RW Harden & Associates
• Lon Shell, Hays County Commissioner
• Micah Voulgaris, General Manager, Cow Creek GCD

The panel members discussed the challenges of water management and policy in the midst of Texas’ population and economic growth, which ultimately requires increasing amounts of water when the state has a fast-fading supply to offer.

Those challenges discussed included:

• The fast economic and growth rates while people and businesses are reliant on groundwater;
• Property rights disputes with private property owners and groundwater;
• Developments being started without connections to city water systems;
• Water regulations of all sorts not being consistent across all districts and counties;
• The loopholes and inconsistencies at times which allow newer industries to use resources without many limitations or oversight.

Authority and oversight continue to be common points of confusion and conflict between GCDs, cities, counties, and other community regulatory entities. Panel members noted that GCDs, cities, and counties each have different rules in the Texas Administrative Code, Texas Water Code, and Local Government Code that can be vague, but also allow for regulatory measures to be established.

With that in mind, panel members said that entities setting minimum requirements for groundwater use applications could be useful for consistency and regulation, as well as considering water availability requirements with counties and water sustainability ordinances with counties and cities.

“There has to be some way for counties to plan for the type of growth we’re seeing,” Lon Shell, a commissioner in Hays County, said during the event.

Collectively, the panel encouraged communication and collaboration between cities, counties, and water managers in order to craft policy and strategies to maximize water use sustainability, and create an understanding of what meaningful local drought and water rules should look like. The key points of their suggestions surrounded promoting widespread education, communication, and cooperation in the effort to make rules “that have teeth” about groundwater management on a district level.

A talk with the legislators

A group of legislators then participated in a discussion with officials from the Texas Alliance of Groundwater Districts. The participants in this panel included:

• Moderator: Leah Martinsson, Executive Director for the Texas Alliance of Groundwater Districts
• Senator Sarah Eckhardt, District 14, Texas Senate
• Representative Kyle Kacal, District 12, Texas House of Representatives
• Representative Tracy King, District 80, Chairman of House Natural Resources Committee
• Senator Charles Perry, District 28, Chairman of Senate Agriculture, Water & Rural Affairs Committee

Education, communication, and cooperation were echoed focuses of the panel of legislators, as well. The lawmakers discussed groundwater issues and recent hearing takeaways, as well as drought in the upcoming session, the Sunset Commission, water quality, funding, and other priorities.

As for groundwater issues and hearing takeaways, the legislators discussed the ongoing struggle to draw focus to water as a relevant issue for policymaking. Panel members noted that water as a subject is “expensive”, “long-term,” and “not sexy” compared to other hot-button topics that are more common focuses for legislation, which can make it difficult to draw funding and needed attention.

For instance, panel members noted that water and oil well plugging, water transferring, and water infrastructure are pressing issues that need awareness and legislative tending. Although “Texas isn’t gonna write those checks,” panel members said that water infrastructure needs replacement and protection in the state.

“Water (and) aquifers are infrastructure,” said Representative Tracy King, who is a member alongside Representative Four Price, District 87, on the House Natural Resources Committee. The panel also noted that water and aquifer-related infrastructure will be cheaper to build now, rather than later.

Panel members did agree that Texas has a large legislature that needs water education, and lawmakers should pay more attention to water issues in the upcoming session. Legislative action is needed in order to build and repair infrastructure, fund importation and other water projects, handle orphaned wells, tend to the “protracted warfare” between Texas counties about water transfer, and other issues.

“The only benefit of a drought is remembering we don’t have a real, substantial water plan in Texas,” officials on the panel said regarding drought and the upcoming legislative session. Members described that the current Texas Water Plan is over 2 million acre-feet short in providing for the state’s water needs and projected growth.

While “we do know we have another drought coming,” as noted by Representative Kyle Kacal, the panel said that the legislature needs a conservation mindset regarding water issues. Senator Sarah Eckhardt also warned that legislators and citizens should not lose attention paid to water issues and drought preparation because of recent rainfall.

According to the TWDB, precipitation was well above average for most of Texas in August. This has resulted in the extreme drought conditions of the year improving statewide, and further improvements are expected during September. However, despite the surface area of the state impacted by drought reaching the lowest its been all year, the majority of Texas was still experiencing drought conditions between “moderate” and “extreme.”

Regarding the Sunset Commission review, panel members said that the legislature should be careful not to treat the commission as a regulatory body. Both Senator Perry, who is on both the Senate Ag, Water & Rural Affairs Committee as well as the Sunset Commission, and King were concerned about overreach with the commission and insisted that it should not be used to make policy.

Perry also said that while the TWDB “came through pretty clean” in its review by the commission, the board is experiencing wage pressures and losing many staff members to the private sector. Meanwhile, the TCEQ experienced “really hard scrutiny” and will be revisited due to commission overreach concerns, but Perry noted that the TCEQ needs more permit transparency and public involvement.

As for agencies and what they need, Eckhardt contended that the TCEQ, TWDB, along with other agencies need much more collaboration between each other, as well as a regulatory framework in order to foster a strong trust between the agencies and Texans.

After all, said Eckhardt, “Failure is really life and death.”

The panel also contended that the legislature should give more funding and focus to water quality issues such as unplugged and orphaned wells and water contamination regulatory schemes. Funding as well, said the panel, should go towards infrastructure, water distribution, pilot projects for produced water, and funding for services, small towns, and retaining state staff.

The Great Springs Project

Following the legislator panel was a keynote address by Garry Merritt, Chief Executive Officer for the Great Springs Project. According to Merritt, the aim of the project is to connect hike and bike trails between the major springs of Central Texas and add 50,000 acres of conserved land over the recharge zone for the Edwards Aquifer.

Merritt said that the project was spurred on by the need, in part, for more publicly accessible land and parks. The full plan for the Great Springs Project can be found here, along with a report on its projected economic benefits and opportunities to donate.

Fine Tuning: Groundwater modeling and measurement

During the first of the “breakout” tracks for the summit’s second day, a range of researchers and experts reported updates and findings for groundwater modeling and measurement-focused projects.

Groundwater use estimation and footprinting

Presented by Rohit Goswami, Principal Engineer for RRG Professional Engineering, Groundwater Availability Models (GAMs) are needed for management strategizing, but face difficulties regarding recharge and pumping rates, as well as estimating and geospatially allocating pumping.

GAMs are created, according to Goswami, using data about the “mass balance” of water and the physics of groundwater flow. However, not only are recharge and pumping rates too big to calibrate, but current GAM models are regional-centric and lack a lot of local-level data. Goswami promoted the need to shift GAM models to include more local-level data and encouraged researchers and managers to consider what could be seen as a balance between using local-level data and regional data when crafting GAM models.

The GULF 2023 Model: Modeling advances and preliminary results

John Ellis, a Supervisory Hydrologist with the United States Geological Survey (USGS), presented an update on the GULF 2023 Project, which focuses on land subsidence in the gulf coast region of Texas. The full report on the project is expected to be published in November.

Land subsidence, according to the USGS, is “a gradual settling or sudden sinking of the earth’s surface owing to subsurface movement of earth materials.” In the context of groundwater, as noted by Ellis, this can mean that the ground above an aquifer such as with the Gulf Coast Aquifer System can compact and make the aquifer smaller, impacting its recharge and storage capabilities.

Model-data Fusion of Hydrologic SImulations and Satellite Observations to Estimate Changes in Water Table Depth

Presented by Southwest Research Institute Lead Scientist Dimitrios Stampoulis, the institute offered an update on its own studies for fusing different types of water models in order to increase the accuracy and quality of GAMs.

While the current data approaches use Land Surface Models and remote sensing observations such as Gravity Recovery and Climate Experiment (GRACE) models, alongside groundwater models, gaps in accuracy and the timing of updates remain in current GAMs. According to Stampoulis, current research is investigating if and how those models could be improved using added data from Variable Infiltration Capacity (VIC) models from satellites in order to gain a more accurate view of surface and groundwater interactions.

Getting Creative: Water supply solutions

After in-depth data and measurement discussions, further researchers and presenters offered updates on studies and projects focused on water supply solutions, such as manmade aquifer recharge and storage processes, stormwater management, and regenerative agriculture production strategies.

The Future of ASR in Texas: TWDB ASR supporting studies

As described by the TWDB, Aquifer Storage and Recovery (ASR) is “the storage of water in a suitable aquifer through a well during times when water is available, and the recovery of water from the same aquifer during times when it is needed.”

The EPA noted that ASR is made up of manmade processes, or natural processes enhanced by humans, in order to bring water underground.

The TWDB’s Aquifer Storage and Recovery Program, according to the TWDB, is meant to offer information through public education, consolidate and map available study materials, and facilitate the application of best practices for groups considering aquifer storage and recovery.

Azzah AlKurdi, an engineering specialist with the TWDB, presented an update on the TWDB’s ASR program as well as other supporting studies.

Managed Aquifer Recharge Using Stormwater: Lessons from the Harris County Pilot Study

Texas A&M University Associate Professor Gretchen Miller presented the findings and general conclusions of an ASR-related pilot study in Harris County, which investigated three methods for retrofitting stormwater basins for groundwater recharge.

A stormwater basin in Harris County, as described by Miller, was fitted with three different systems meant to encourage groundwater recharge:

• Infiltration trenches, trenches dug and filled with permeable material;
• Soil amendments, or topsoil mixed up with permeable material;
• A proprietary system made using rods stuck into the ground.

Generally, Miller said, the conclusions of the study included:

• For year-round groundwater recharge:
  • Trenches resulted in the greatest infiltration quality.
  • Soil amendments resulted in the greatest infiltration quality.
• For flood control and stormwater quality, a longer time for water to be stored in the basins could be useful.
• For protecting groundwater quality, the permeable materials used in each integration method should be carefully vetted in order to minimize infusing the groundwater with possibly harmful minerals.

Impacts of Regenerative Ag on Water Storage and Soil Health

In a presentation especially relevant to agriculture on the High Plains, Texas A&M AgriLife Research Associate Professor Katie Lewis discussed the results of a study focused on the impacts of regenerative agriculture methods on soil health and water storage.

The study, said Lewis, was conducted in the Lubbock area and multiple types of soil, including Amarillo Sandy Loam soil, to study soil health and the ability of soil to cope with and minimize evapotranspiration.

Soil health was described as the capacity for soil to function and sustain life using both inherent and dynamic characteristics, such as the mineral makeup of soil and moisture levels. Evapotranspiration, meanwhile, is when water evaporates into the air from the soil and other surfaces instead of running off elsewhere or being absorbed by the ground.

“Regenerative Agriculture” has not been specifically defined, said Lewis, but general practices include:

• Managing more by disturbing the soil less
• Keeping the soil covered as much as possible
• Keeping a living root growing throughout the year
• Diversifying soil biota with plant diversity

Lewis’ presented research focused on studying the changes in soil chemical, physical, and biological properties following long-term conservation management methods in agricultural production systems. This often compared the use of a cover crop in a field, crop rotation in a field, and native rangeland.

The comparison for the cotton fields consisted of one method that switched between fallow and cotton throughout the year, and another that split the year between cotton, a cover crop, and idle time.

Regarding soil and water retention, Lewis noted that better soil moisture for the cotton crops resulted after the cover crop was terminated in the field, in comparison to the field that switched between cotton and fallow. Cover crops, overall, appeared to be a benefit for long-term soil moisture. As for soil nutrition, Lewis reported that with cover crops, introducing nitrogen earlier in the season resulted in a better yield.

Other benefits and consequences of the conservation cotton cropping systems, as noted by Lewis, included:

• Reduced susceptibility to wind erosion;
• Increased water infiltration;
• Increased carbon storage;
• Increased extracellular enzyme activities in the soil;
• Increased microbial community size and composition;
• Increased pathogenic nematode community;
• Decreased evaporation;
• Decreased cotton yields;
• Decreased soil pH;
• Decreased cotton yields;

As for the yield, Lewis noted that there did not seem to be an obvious relationship between soil health and cotton yield and that it would require more investigation.

Altogether, the second day of the 2022 Texas Groundwater Summit continued the conversation surrounding data, dollars, and dedication by highlighting the need for hard policy, funding for groundwater and natural resource-related agencies and their projects, along with more and better data in order to craft solid policy and groundwater management strategies. Further, legislators and other experts reiterated the need for a more common awareness of water topics, their specifics, and the issues faced by Texas in order to promote engagement and workable solutions for all those who live and work in the state.

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