Texas Attorney General Opinion: GA-0708 Page: 3 of 8
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The Honorable Jim Pitts - Page 3
to manage, conserve, preserve, and protect the aquifer and to increase the recharge of, and prevent
the waste or pollution of water in, the aquifer." Id. 1.08; see also TEX. WATER CODE ANN.
36.0015 (Vernon 2008) (stating purposes of groundwater districts). The Act requires the EAA to
"adopt rules necessary to carry out the authority's powers and duties." EAA Act 1.11 (a). See also
TEX. WATER CODE ANN. 36.0115 (stating that the state's preferred method of groundwater
management is through rules developed, adopted, and promulgated by a water district in accordance
with chapter 36), 36.101(a) (authorizing a groundwater district to make and enforce rules including
rules to provide for conserving, preserving, protecting, and recharging of the groundwater for certain
purposes). The Act also grants the EAA broad authority to enter into contracts. EAA Act
1.11 (d)(2). More specifically, section 1.44(a) of the Act authorizes the EAA to contract with any
political subdivision of the state to provide for "artificial recharge" of the aquifer for the subsequent
retrieval of the water by the political subdivision, and states further that the EAA may not
unreasonably deny a request for such a contract. Id. 1.44. Retrieval under such a recharge and
retrieval contract is not subject to the aquifer-wide cap. Id. 1.44(d).
The EAA has adopted rules to implement the Act,6 including rules related to aquifer recharge,
storage, and recovery projects. EAA Rules 711.240-.272 (subchapter J). The EAA's recharge
rules authorize an entity to obtain a permit to construct or modify an aquifer recharge facility or a
recharge and storage project, and a recharge recovery permit allowing an entity to recover water
previously recharged and stored in the aquifer. Id. 702.1(6), (51), 711.240-.272. The rules
provide that the EAA will not issue a permit for aquifer recharge "for any structure, facility, or works
constructed prior to September 1, 1993." Id. 711.245(a).7 But the rules allow the EAA to issue
permits for a facility constructed prior to September 1, 1993 if the facility is modified to increase the
amount of recharge. Id. 711.245(b).
Your predecessor's first question was whether the EAA has authority to adopt rules that deny
recharge, storage, and recovery permits for recharge facilities built before September 1, 1993.
Request Letter at 2. Because EAA rules do not deny such permits to recharge facilities that will
increase or augment the volume of its recharge beyond historic recharge levels, EAA Rules
(...continued)
of May 29, 1995, 74th Leg., R.S., ch. 933, 2, 6, 1995 Tex. Gen. Laws 4673, 4679, 4701. Chapter 36 applies to "any
district or authority created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, that has the
authority to regulate the spacing of water wells, the production from water wells, or both." See TEX. WATER CODE ANN.
36.001(1) (Vernon 2008). Thus, a court has held, "[b]ased on the plain language of the statute,... that Chapter 36
of the Water Code applies to the [EAA]." In re Edwards Aquifer Auth., 217 S.W.3d 581, 588 (Tex. App.-San Antonio
2006, orig. proc.).
6See Edwards Aquifer Authority Rules (rev. July 22, 2008), available at http://edwardsaquifer.org/pdfs/
rules/Final_Rules.pdf (last visited Apr. 13, 2009) [hereinafter EAA Rules].
7See also EAA Rules 702.1(88) (defining "historic recharge" as annual recharge estimated to occur due to
natural features and artificial structures or facilities constructed prior to September 1, 1993); 711.247 (stating that
recharge and storage permits and retrieval permits will not be granted for historic recharge).(GA-0708)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0708, text, April 15, 2009; (https://texashistory.unt.edu/ark:/67531/metapth275604/m1/3/: accessed March 28, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.