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GCDs from A to Z

May 20, 2015




  • 1. GCDs from A to ZStacey A. Steinbach and Kathy Turner JonesTexas Alliance of Groundwater DistrictsTexas A&M University AWRA Student Chapter October 4, 2012

2. Topics for Discussion Evolution of Groundwater Management GCDs Joint Planning Evolution of Groundwater Ownership Previous cases Senate Bill 332/EAA v. Day Lone Star GCD as an example ofgroundwater management 3. Starting Point: Rule of Capture Adopted as Texas law in 1904 East decision Landowners have right to capture an unlimited amount ofgroundwater beneath their property Called law of non-liability and law of the biggest pump Exceptions: trespass, malicious or wanton conduct, waste,contamination, subsidence due to negligent overpumping 4. Groundwater Conservation Districts 5. History of GCDs 1917: Conservation Amendment to Texas Constitution 1949: Statutory framework for creation of GCDs 1997: GCDs are the States preferred method ofgroundwater management (SB 1) 2012: 96 confirmed GCDs; three awaiting confirmation 6. What is a GCD? Political subdivision of the state of Texas Creature of the Legislature, powers expressly granted Granted specific legal authority related to the management ofgroundwater; may regulate well spacing and groundwaterproduction Created to protect and balance private property interests 7. What isnt a GCD? Municipal water provider Water/wastewater treatmentprovider Groundwater owner 8. How are GCDs created? By the Texas Legislature, pursuant to Article XVI, Section59 of the Texas Constitution By TCEQ, pursuant to a a local petition By TCEQ, pursuant to the Priority GroundwaterManagement Area provisions**Confirmation elections are held to confirm creation ortax authority 9. GCD Facts More than half of water used in Texasis groundwater, 85% is within GCDs Oldest/largest GCD: High Plains(10,000 sq. miles, 16 counties) Smallest GCD: Red Sands, HidalgoCounty (31 sq. miles) Some GCDs have additional powers Cover all or part of 174 counties 10. Population Per GCD 35 30Number of GCDs 25 20 15 10 5 0< 10,000 10,001 -50,001 - 100,001 - > 500,00050,000 100,000 500,000Population Sizen=76 11. Number of Counties Per GCD OneNumber of Counties Two ThreeFour Five or More0 10 2030 4050 Number of GCDsn=77 12. Type of Community 84% Suburban15%Rural Urban1% 13. Largest Groundwater User in GCD Municipal Oil & GasWater Supply 8% 36% Combination Industrial/3%Commercial1% Domestic/ Agriculture Livestock36%16% n=74 14. Number of Board Members per GCD > 11Number of Board10-11 Members8-96-7 50 10 20 304050 Number of GCDsn=76 15. Elected v. Appointed Board Members 7% 70% ElectedAppointed23% Bothn=77 16. Tax-Based v. Fee-Based GCDs25% Fee 9%Tax66%Bothn=76 17. How Do GCDs Regulate? GCDs regulate/issue permits in the following ways: Well spacing Acreage-based regulations Use-based regulations Some wells are exempt from permitting requirements Wells specifically exempted by the board Certain domestic and livestock wells Certain wells related to oil and gas or mining activities 18. Joint Planning 19. Joint Planning GCDMAGGMA TWDB DFC 20. Joint Planning GCDMAGGMA OMG TWDB DFC 21. GCD = Groundwater Conservation District 22. GMA = Groundwater Management Area 23. DFC = Desired Future Condition Quantifiable future groundwater metric (what aquifer will look like atspecified time in future; average drawdown should not exceed __ after __) Process amended in 2011; in establishing DFCs, GCDs must consider:PrivateAquifer Uses State Water HydrologicalImpacts on Propertyor ConditionsPlan Conditions SubsidenceRights Any otherSocioeconomic Environmental Feasibility ofrelevant Impacts Impacts achieving DFCinformation 24. DFC Balancing Test Conservation, preservation, protection, recharging and prevention of waste of groundwaterand control of subsidence Highest practicablelevel of groundwater production 25. New DFC Adoption Process 26. TWDB = Texas Water Development Board Texas state agency; generally not regulatory in nature Provides loans and funding for state water projects Oversees the State Water Plan Provides groundwater expertise in the form of modeling (GAMs, MAGs), groundwater quality monitoring, and groundwater level monitoring Approves GCD management plans 27. MAG = Modeled Available Groundwater Amount of water that may be produced on an average annual basis toachieve a DFC In issuing permits, GCDs must manage total groundwater production on along-term basis to achieve an applicable DFC and consider :Yearly Previously Actual PrecipitationExempt UseMAGEstimatesAuthorizedProduction&WithdrawalsEstimatesProduction Patterns 28. Regional PlanningRWPG GCD MAG GMATWDB DFC 29. DFC Appeals Person with a legally defined interest in groundwater, a GCD(in or adjacent to), or a RWPG in the GMA can file petitionwith TWDB to challenge reasonableness First round: appeals filed in 7 of the 16 GMAs; all resolved Two separate concepts floated last session: Affected person files petition with GCD; SOAH hearing; PFD; GCD final order; appealable to district court in GMA GCDs adoption of DFC may be challenged in district court in local venue in same manner as GCD rule (substantial evidence) 30. Evolution of Groundwater Ownership 31. Important Cases Houston & Tex. Cent. R.R. Co. v. East Pecos County WCID No. 1 v. Williams (Comanche Springs) Friendswood Development Co. v. Smith-Southwest Industries, Inc. City of Corpus Christi v. City of Pleasanton Sipriano v. Great Spring Waters of America, Inc. (Ozarka) Barshop v. Medina County UWCD City of Del Rio v. the Hamilton Trust 32. Senate Bill 332 Recognizes that a landowner owns the groundwater below the surface ofthe landowners land as real property Landowner is entitled to drill for and produce groundwater, but not aspecific amount GCDs may limit or prohibit drilling based on spacing or tract size andregulate the production of groundwater as provided in the Water Code GCDs are not required to implement a correlative rights approach Does not affect ability of EAA or subsidence districts to manage groundwater 33. EAA v. Day and McDaniel 34. Facts 1956: irrigation well drilled on property; in use until 1970s Prior to 1983: well casing collapsed/pump removed; well continued toproduce water that was stored in holding tank and used for irrigationand recreation 1993: Edwards Aquifer Authority created; historic use period ends 1994: Plaintiffs purchase property at issue 1996: Plaintiffs timely request 700 acre-feet of Edwards water; EAAdenies full amount due to failure to satisfy historic use requirements 35. Issues Did the EAA err in limiting plaintiffs permit to 14 af? Do plaintiffs have a constitutionally protected interest in thegroundwater beneath their property? Did the EAAs denial of a permit in the amount requested bythe plaintiffs constitute a taking? Are plaintiffs other constitutional arguments valid? 36. Holding Did the EAA err in limiting plaintiffs permit to 14 af? No Do plaintiffs have a constitutionally protected interest in thegroundwater beneath their property? Yes Did the EAAs denial of a permit in the amount requested bythe plaintiffs constitute a taking? Dont know Are plaintiffs other constitutional arguments valid? No 37. Analysis Reasonable to determine that the groundwater became statewater when discharged to the lake Applied common law ownership of oil and gas togroundwater; held that rule of capture and ownership in placeare not mutually exclusive Landowner has a property interest in the groundwater underhis property, subject to the rule of capture and reasonableregulation by a GCD (police power) 38. Analysis Not enough information in record to determine whethertaking occurred Trial court will conduct a Penn Central (regulatory taking)analysis: economic impacts extent of interference with reasonable investment-backed expectations nature or character of the regulation 39. What We Know Land ownership includes a constitutionally-protectedinterest in groundwater in place that cannot be taken forpublic use without adequate compensation EAA acted in complete accordance with state-mandatedregulatory scheme Some regulation of groundwater production does notconstitute a compensable taking 40. What We Dont Know How much regulation is too much? Is there a distinction between EAA and Chapter 36GCDs when it comes to a takings claim? How will different uses be affected? Unintended consequences? 41. Whats Next? District court will decide whether taking occurred asto plaintiffs Day and McDaniel Legislative response? Wait and see; business asusual Larry D. Moore 42. Questions? Stacey A. SteinbachTexas Alliance of Groundwater Districts P.O. Box 152169 Austin, Texas [email protected] (512)