As part of an interim charge to study freshwater loss in Texas, the House Natural Resources Committee is expected to meet this fall to examine aquifer storage and recovery (ASR) as a water storage method that could prevent loss to evaporation. ASR involves collecting water during wet periods and storing it underground in an aquifer from which it can be drawn during periods of peak demand.
According to the Texas Water Development Board, about 7.2 million acre-feet of water currently stored in surface water reservoirs evaporates in an average year. While surface reservoirs continue to feature prominently in the recently adopted 2017 state water plan, many consider ASR to have several advantages over reservoirs that justify its expanded use. In addition to resisting water loss through evaporation, ASR does not involve the acquisition and flooding of land above ground, which can be expensive and result in destruction of wildlife habitat and private property.
Although a few Texas municipalities have used ASR for a number of years, some say a principal challenge to more widespread implementation of it is a legal and regulatory framework for water policy that is not well adapted to the technology. In 2015, the 84th Legislature enacted HB 655 by Larson, which resulted in several changes to the way ASR is regulated. The bill specified how ASR facilities must account for the water they inject and recover and the role of groundwater conservation districts in such projects. The new law establishes the same regulatory framework for all ASR projects, whether the source of the stored water is groundwater, surface water, or treated wastewater. The new law also prescribes measures designed to protect water quality in the receiving aquifer and modifies the requirement that water meet drinking water standards before being injected.
Learn more about ASR in Texas in the House Research Organization’s focus report, Addressing water needs using aquifer storage and recovery.
The Texas attorney general said in a June 20 opinion that the education commissioner has authority to take possession of property of a charter school that is no longer in operation and that a court likely would conclude that such property was not “unappropriated public domain” belonging to the Permanent School Fund. The Texas Education Agency (TEA) had requested the opinion to address questions about the legal status and disposition of such property amid an increase in charter school revocations.
Education Code, sec. 12.128(c) requires the education commissioner to take possession and assume control of the property of a charter school that ceases to operate and to supervise the disposition of the property according to the law. Sec. 43.001(a)(2) states that all land recovered by the state by suit or otherwise is considered unappropriated public domain belonging to the Permanent School Fund.
The attorney general wrote that because the Legislature had “expressly set aside the returned public property” as subject to the control and disposition of the education commissioner, it likely was not unappropriated public domain for the Permanent School Fund. The opinion did not address ownership of any particular property, stating that to do so would involve the evaluation of questions of fact.
The opinion did not directly address the interests of private entities that may have helped finance certain charter school facilities but did review statutory and constitutional provisions that could affect the disposition of the property of a former charter school, concluding that:
- Natural Resources Code, ch. 31, does not authorize the General Land Office to unilaterally direct the disposition of returned charter school property but does provide for land office involvement in the education commissioner’s disposition of such property;
- Tex. Const., Art. 3, sec. 51 (banning most grants of public money to private interests) and sec. 52(a) (concerning debt not payable from property taxes) prohibit the education commissioner from gratuitously granting such property to private interests; and
- the fiscal 2016-17 general appropriations act provides that proceeds from the disposition of real property returned to the state from a charter school that is no longer in operation are appropriated to TEA for management and closure of entities and disposition of state property.
The opinion did not foreclose the possibility that other law could apply to the commissioner’s disposition of the property.
For more on this issue, see previous post: TEA seeks guidance on property of closed charter schools.
by Janet Elliott
The Texas Supreme Court on May 13 said the state’s school finance system meets the minimum requirements in the Texas Constitution for an efficient, free public school system and does not function as an unconstitutional statewide property tax. This ruling overturned a trial court’s 2014 finding that the system is constitutionally deficient.
Noting that the framers of the Texas Constitution “placed the responsibility for education policymaking squarely with the Legislature,” the court said the “judicial role is not to second-guess whether our system is optimal.” The justices, in a unanimous opinion, said there is “immense room” for improving the system, but that the authority to act rests with the Texas Legislature. Continue reading
The U.S. Food and Drug Administration (FDA) finalized a rule last week that extends the agency’s authority to additional products, including e-cigarettes. As part of its new rule, the FDA is prohibiting the sale of e-cigarettes to minors, a step the 84th Texas Legislature took in 2015.
The Texas Supreme Court earlier this month upheld the constitutionality of a law enacted in 2013 imposing a fee on certain tobacco companies that were not parties to a 1998 settlement with the state. The court ruled that the Legislature had a rational basis to distinguish between the tobacco manufacturers that were assessed the fee and those that had agreed to make annual payments to the state under the earlier settlement.
The law authorizing the fee had been challenged by a coalition of small tobacco companies arguing that it was a tax in violation of a requirement under Tex. Const., Art. 8 that taxation be equal and uniform. The Third Court of Appeals in 2014 ruled that the tax was not equal and uniform because it treated identical products differently based on the entity that was making the product.