Texas Groundwater Association

Groundwater Conservation Districts and Legislation

Stacey Allison Steinbach

Texas Alliance of Groundwater Districts

TGWA 2015 Annual Convention

February 27, 2014

GCD Snapshot

Groundwater Ownership

Legislative Update

The Role of the GCD

Conservation, preservation, protection, recharging and prevention of waste of

groundwater and control of subsidence

Highest practicable level of groundwater

production

Groundwater Conservation Districts

• Currently 97 GCDs and 2 subsidence districts

• Three GCDs currently awaiting confirmation

• Most often created by Legislative action; can be

created by petition of landowners or TCEQ

• GCDs currently cover 172 counties in whole or in part

Source: John Dupnik, BSEACD

History of GCDs

How GCDs Manage Groundwater

Science

EducationRegulation

of Wells

Joint Planning

Water Code Chapter 36

• Registration requirements

• Well construction standards

• Well spacing requirements

• Reporting requirements

• Permit requirements

• Production limitations

Regulation of Wells

Registration Construction Spacing Reporting Permitting Production Limits

Exempt D&L Wells • • •Exempt O&G Wells • • • •Exempt Mining Wells • • •Other Exempt Wells • • • •Non-ExemptWells • • • • • •

Joint Planning: The Acronyms

• GMA: Groundwater Management Area (GCDs grouped

generally by major aquifers for the purpose of joint planning)

• DFC: Desired Future Condition (a snapshot of what a specific

aquifer will look like at specified times in the future)

• MAG: Modeled Available Groundwater (science + policy)

HB 1763, 2005

GCD=Groundwater Conservation Districts

GMA=Groundwater Management Area

DFC=Desired Future Condition

• Desired future condition = quantifiable future groundwater metric

(what aquifer will look like in future); overall management objective

• GCDs must implement a balancing test and consider:

Aquifer Uses or Conditions

State Water Plan

Hydrological Conditions

Private Property

Rights

Impacts on Subsidence

Socioeconomic Impacts

Environmental Impacts

Feasibility of achieving DFC

Any other relevant

information

MAG=Modeled Available Groundwater

• Amount of water that may be produced on an average

annual basis to achieve a DFC

• One tool in GCD toolbox for achieving DFC:

MAG Exempt UseAuthorized

WithdrawalsActual

Production

Precipitation and

Production

Joint Planning

Joint Planning

GCD

GMA

DFC

TWDB

MAG

TAGD’s GCD Inventory

http://www.texasgroundwater.org/resources/gcdi.html

GCD Snapshot

Groundwater Ownership

Legislative Update

Rule of Capture

• Adopted as Texas law in 1904 East decision

• Landowners have right to capture an unlimited

amount of groundwater beneath their property

• Called “law of non-liability” and “law of the biggest

pump”

• Concerns with certainty and protection

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

• 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

Senate Bill 332 (2011)

• Landowners own groundwater below the surface as

real property

• Landowner entitled to drill for and produce

groundwater, but not a specific amount

• GCDs may limit or prohibit drilling based on spacing or

tract size and regulate production

EAA v. Day (2012): Facts

• 1956: irrigation well drilled; used until 1970s

• Before 1983: well casing collapsed/pump removed; well continued to produce water that was stored in holding tank and used for irrigation and recreation

• 1993: EAA created; historic use period ends

• 1994: Plaintiffs purchase property

• 1996: Plaintiffs timely request 700 acre-feet; EAA denies based on no historic use

EAA v. Day (2012): Issues

• Did EAA err in limiting permit to 14 af?

• Do plaintiffs have a constitutionally protected interest in the groundwater beneath their property?

• Did the EAA’s denial of a permit in the amount requested constitute a taking?

• Are plaintiffs’ other constitutional arguments valid?

EAA v. Day (2012): Holding

• Did EAA err in limiting permit to 14 af? No

• Do plaintiffs have a constitutionally protected interest in the groundwater beneath their property? Yes

• Did the EAA’s denial of a permit in the amount requested constitute a taking? Don’t Know

• Are plaintiffs’ other constitutional arguments valid? No

EAA v. Day (2012): Analysis

• Rule of capture/ownership in place NOT mutually exclusive

• Property interest in groundwater subject only to rule of capture and

GCD regulations

• Penn Central analysis: economic impacts, investment-backed

expectations, and nature of the regulation

• EAA acted in accordance with EAA Act; did NOT say whether taking

occurred (now settled)

EAA v. Bragg (2013): Facts

• Two pecan orchards, one with historic use

• EAA issued one reduced permit and denied other

• Braggs were forced to purchase water for irrigating (10% increase in irrigation costs)

• Trial court found for plaintiffs

• Who is the proper party – the EAA or the State?

• Did the EAA’s actions amount to a taking?

• How should damages be measured?

EAA v. Bragg (2013): Issues

• Who is the proper party – the EAA or the State? ?

• Did the EAA’s actions amount to a taking? Yes

• How should damages be measured? Value of orchards before and after

Holding

Groundwater Takings Analysis?

• Economic impact

• Interference with investment backed

expectations

• Character of governmental action

• “Other Relevant Factors”

What We Know

• Land ownership includes a constitutionally-protected interest in groundwater in place that cannot be taken for public use without adequate compensation

• That interest does not preclude regulation by a GCD in accordance with Chapter 36 of the Water Code

• Some limitation of groundwater production does not constitute a compensable taking

What We Don’t Know

• How much regulation is too much?

• Is there a distinction between EAA and Chapter 36 GCDs when it comes to a takings claim?

• How will different “uses” be affected?

• Will there be unintended consequences?

• How are damages are calculated? (but see Bragg)

GCD Snapshot

Groundwater Ownership

Legislative Update

Charles Perry*

Judith Zaffirini**

Brandon Creighton

Bob Hall

Juan “Chuy” Hinojosa

Lois Kolkhorst

José Rodriguez

Senate: Agriculture, Water & Rural Affairs

Senate: Nat. Resources & Economic Devel.

Brian Birdwell

Judith Zaffirini

Troy Fraser* Bob Hall

Juan “Chuy” Hinojosa

Craig Estes**

Carlos UrestiRobert Nichols

Kel Seliger

Eddie Lucio, Jr.

Kelly Hancock

Jim Keffer*

Trent Ashby**

Dennis Bonnen

Tracy King Eddie Lucio III

DeWayne Burns

James Frank

Kyle Kacal

Lyle Larson

Poncho Nevárez

Paul Workman

House: Natural Resources

TWCA Consensus Bills

• HB 950 – State Auditors’ Office Bill

• HB 930 – TDLR Bill

• HB 655 – ASR Bill

• HB 1248 – Permitting Bill

• HB 1221 – Seller’s Disclosure Bill

• Not yet filed: Chapter 36 Cleanup and Hearings

HB 950: State Auditor Bill (Lucio III)

• Would authorize the State Auditor’s Office to audit a GCD’s financial records just as it does for other water districts

• Would end the practice of having the State Auditor review a GCD’s management plan, leaving that to TCEQ

HB 930: TDLR Bill (Miller)

• Authorizes TDLR to reinstate its apprentice well driller and pump installer programs

• Requires conversions of an oil & gas well to a water well to be supervised by a licensed driller

• Authorizes TDLR to contract with governmental entities to assist with enforcement

HB 655: ASR Bill (Larson)

• Streamlines ASR projects and gives TCEQ exclusive jurisdiction over ASR projects (outlines considerations for permitting)

• Eliminates pilot project requirement and clarifies that a water right amendment is not required to use surface water for ASR

• Authorizes TCEQ to determine the amount of recoverable water; any water withdrawn beyond TCEQ’s authorization is subject to GCD's spacing, production, fee, and permitting rules

• Requires reporting, testing, and registration of all ASR wells

HB 1248: Permitting Bill (Lucio III)

• Automatic renewals if no conditions have changed

• Exceptions relate to fees, violations, and unpaid penalties

• Original permit remains active as long as amendment or renewal process ongoing

• Does not prohibit a GCD from amending a permit to carry out the purposes of Chapter 36

HB 1221: Seller’s Disclosure Bill (Lucio III)

• Requires sellers of residential real property to include GCD information on the state-required disclosure form provided to a potential buyer

Brackish Groundwater Bills

• HB 30 – HB 2578 from 83rd Session

• HB 835 – TAGD consensus bill

• HB 836 – Bill considered by TWCA

HB 30: Brackish Groundwater (Larson)

• TWDB identifies brackish groundwater production zones:– Separated by hydrogeologic barriers to avoid “significant” impacts

– Not serving as a primary water supply

– Not located in subsidence areas or EAA jurisdiction

• Groundwater owner may petition GCDs to adopt rules for issuing permits in the zone

• 30-year permits and unlimited production, except in cases of unanticipated impacts

HB 835: Brackish Groundwater (Larson)

• Groundwater owner may file a petition with a GCD to designate a brackish groundwater management zone:– Separated by hydrogeologic barriers to avoid “adverse” impacts

– Not area serving as a primary water supply or subject to a DFC

– Not located in subsidence areas or subsidence districts/EAA jurisdiction

• TWDB may participate through filing of technical report

• Production limits must be based on impacts to water

• outside of the zone; may be amended in case of unanticipated impacts

HB 836: Brackish Groundwater (Larson)

• Petition for creation of brackish groundwater production zone:– Separated by hydrogeologic barriers to avoid “unreasonable negative”

impacts

– Not area serving as a primary municipal or agricultural water supply

– Designation appealable to TWDB

• Permit at GCD level– Uncontested permit process with production limits, permit term, and

monitoring requirements consistent with zone designation

– If impacts are greater than anticipated, may be amended with approval from TWDB

HB 1191: Buffer Zones (Isaac)

• Establishes buffer zones – 5 miles outside the boundaries of a PGMA

• Commercial drillers in buffer zone must apply to TWDB and any GCD in the territory the well is located

HB 898: Well Confidentiality (Ashby)

• Would protect reports submitted by well owners to GCDs from disclosure under the Public Information Act

• Well owner must submit a written request for confidentiality

• GCD may release info only if summarized so individual owners/parcels cannot be identified

• Does not apply to public entities

TWDB / Water Planning

• HB 632 (Simpson): prohibits a RWP from including a project in another RWP area unless at least 2/3 of those RWP members consent

• HB 280 (Simmons): SWIFT info on website

• SB 413 (Seliger): changes TWDB board member requirement from law to production agriculture; requires one member to be from a rural area

TWDB / Water Planning

• HB 1232 (Lucio III): TWDB to study and map groundwater in aquifers by December 31, 2016

• HB 1296 (Flynn) – would authorize each commissioners court in Regional Water Planning Area D to appoint a member to that RWPG

SB 360: Takings (Estes)

• Amends definition to series of actions over 10-yr period

• Taking possible if reduces market value by 20%

• Taking could occur if 20% reduction of revenue/income from use or sale of the property

• Applies to municipalities and actions taken to comply with federal or state law, as well as actions to prevent waste or protect groundwater rights

SB 517: Injection Wells (Uresti)

• Would require an applicant for an injection well permit to provide notice to the GCD if the proposed injection well is within a 10-mile radius of the GCD’s jurisdiction

HB 551 (Johnson): Criminal Records

• Prohibits a licensing authority from suspending or revoking a license or disqualifying a person with a conviction from receiving a license:– Without first allowing the applicant to formally present arguments and

evidence in their favor; or

– For certain convictions under the penal code

• If applicant is still deemed ineligible, licensing authority must issue a letter detailing how the offense is a disqualifying conviction

Questions?Stacey Allison Steinbach

[email protected]

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