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Texas Groundwater Association

Jul 16, 2015

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Texas Groundwater

Groundwater Conservation Districts and LegislationStacey Allison SteinbachTexas Alliance of Groundwater Districts

TGWA 2015 Annual ConventionFebruary 27, 2014

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2The Role of the GCD

Groundwater Conservation DistrictsCurrently 97 GCDs and 2 subsidence districtsThree GCDs currently awaiting confirmationMost often created by Legislative action; can be created by petition of landowners or TCEQGCDs currently cover 172 counties in whole or in part

Source: John Dupnik, BSEACD

History of GCDs5How GCDs Manage Groundwater

6Water Code Chapter 36Registration requirementsWell construction standardsWell spacing requirementsReporting requirementsPermit requirementsProduction limitations

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RegistrationConstructionSpacingReportingPermittingProduction LimitsExempt D&L WellsExempt O&G WellsExempt Mining WellsOther Exempt WellsNon-Exempt Wells8Joint Planning: The AcronymsGMA: 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, 2005GCD=Groundwater Conservation Districts

10GMA=Groundwater Management Area

11DFC=Desired Future Condition

Desired future condition = quantifiable future groundwater metric (what aquifer will look like in future); overall management objectiveGCDs must implement a balancing test and consider:12MAG=Modeled Available Groundwater

Amount of water that may be produced on an average annual basis to achieve a DFCOne tool in GCD toolbox for achieving DFC:13Joint Planning

14TAGDs GCD Inventory

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

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Rule of CaptureAdopted as Texas law in 1904 East decisionLandowners have right to capture an unlimited amount of groundwater beneath their propertyCalled law of non-liability and law of the biggest pumpConcerns with certainty and protection

Important CasesHouston & Tex. Cent. R.R. Co. v. EastPecos County WCID No. 1 v. Williams (Comanche Springs)Friendswood Development Co. v. Smith-Southwest IndustriesCity of Corpus Christi v. City of PleasantonSipriano v. Great Spring Waters of America, Inc. (Ozarka)Barshop v. Medina County UWCDCity of Del Rio v. the Hamilton Trust

18Senate Bill 332 (2011)Landowners own groundwater below the surface as real propertyLandowner entitled to drill for and produce groundwater, but not a specific amountGCDs may limit or prohibit drilling based on spacing or tract size and regulate production

19EAA v. Day (2012): Facts1956: irrigation well drilled; used until 1970sBefore 1983: well casing collapsed/pump removed; well continued to produce water that was stored in holding tank and used for irrigation and recreation1993: EAA created; historic use period ends1994: Plaintiffs purchase property1996: Plaintiffs timely request 700 acre-feet; EAA denies based on no historic use

20EAA v. Day (2012): IssuesDid EAA err in limiting permit to 14 af?Do plaintiffs have a constitutionally protected interest in the groundwater beneath their property?Did the EAAs denial of a permit in the amount requested constitute a taking?Are plaintiffs other constitutional arguments valid?

21EAA v. Day (2012): HoldingDid EAA err in limiting permit to 14 af? NoDo plaintiffs have a constitutionally protected interest in the groundwater beneath their property? YesDid the EAAs denial of a permit in the amount requested constitute a taking? Dont KnowAre plaintiffs other constitutional arguments valid? No

22EAA v. Day (2012): AnalysisRule of capture/ownership in place NOT mutually exclusiveProperty interest in groundwater subject only to rule of capture and GCD regulationsPenn Central analysis: economic impacts, investment-backed expectations, and nature of the regulationEAA acted in accordance with EAA Act; did NOT say whether taking occurred (now settled)

23EAA v. Bragg (2013): FactsTwo pecan orchards, one with historic useEAA issued one reduced permit and denied otherBraggs were forced to purchase water for irrigating (10% increase in irrigation costs)Trial court found for plaintiffs

24Who is the proper party the EAA or the State?Did the EAAs actions amount to a taking? How should damages be measured? EAA v. Bragg (2013): Issues

25Who is the proper party the EAA or the State? ?Did the EAAs actions amount to a taking? YesHow should damages be measured? Value of orchards before and after Holding

26Groundwater Takings Analysis?Economic impactInterference with investment backed expectationsCharacter of governmental actionOther Relevant Factors

27What We KnowLand ownership includes a constitutionally-protected interest in groundwater in place that cannot be taken for public use without adequate compensationThat interest does not preclude regulation by a GCD in accordance with Chapter 36 of the Water CodeSome limitation of groundwater production does not constitute a compensable taking

28What We Dont KnowHow 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)

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Charles Perry*Judith Zaffirini**Brandon CreightonBob HallJuan Chuy HinojosaLois KolkhorstJos RodriguezSenate: Agriculture, Water & Rural Affairs31

Senate: Nat. Resources & Economic Devel.

Brian BirdwellJudith ZaffiriniTroy Fraser*Bob HallJuan Chuy HinojosaCraig Estes**Carlos UrestiRobert NicholsKel SeligerEddie Lucio, Jr.Kelly Hancock32

Jim Keffer*Trent Ashby**Dennis BonnenTracy KingEddie Lucio IIIDeWayne BurnsJames FrankKyle KacalLyle LarsonPoncho NevrezPaul Workman

House: Natural Resources33TWCA Consensus BillsHB 950 State Auditors Office BillHB 930 TDLR BillHB 655 ASR BillHB 1248 Permitting BillHB 1221 Sellers Disclosure BillNot yet filed: Chapter 36 Cleanup and Hearings

34HB 950: State Auditor Bill (Lucio III)Would authorize the State Auditors Office to audit a GCDs financial records just as it does for other water districtsWould end the practice of having the State Auditor review a GCDs management plan, leaving that to TCEQ

35HB 930: TDLR Bill (Miller)Authorizes TDLR to reinstate its apprentice well driller and pump installer programsRequires conversions of an oil & gas well to a water well to be supervised by a licensed drillerAuthorizes TDLR to contract with governmental entities to assist with enforcement

Would allow TDLR to contract with other governmental entities to assist them with enforcementTDLR well log information not mandatory36HB 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 ASRAuthorizes TCEQ to determine the amount of recoverable water; any water withdrawn beyond TCEQs authorization is subject to GCD's spacing, production, fee, and permitting rules Requires reporting, testing, and registration of all ASR wells

37HB 1248: Permitting Bill (Lucio III)Automatic renewals if no conditions have changedExceptions relate to fees, violations, and unpaid penaltiesOriginal permit remains active as long as amendment or renewal process ongoingDoes not prohibit a GCD from amending a permit to carry out the purposes of Chapter 36

38HB 1221: Sellers 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

39Brackish Groundwater BillsHB 30 HB 2578 from 83rd SessionHB 835 TAGD consensus billHB 836 Bill considered by TWCA

40HB 30: Brackish Groundwater (Larson)TWDB identifies brackish groundwater production zones:Separated by hydrogeologic barriers to avoid significant impactsNot serving as a primary water supplyNot located in subsidence areas or EAA jurisdictionGroundwater owner may petition GCDs to adopt rules for issuing permits in the zone30-year permits and unlimited production, except in cases of unanticipated impacts

41HB 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 impactsNot area serving as a primary water supply or subject to a DFCNot located in subsidence areas or subsidence districts/EAA jurisdictionTWDB may participate through filing of technical reportProduction limits must be based on impacts to wateroutside of the zone; may be amended in case of unanticipated impacts

42HB 836: Brackish Groundwater (Larson)Petition for creation of brackish groundwater production zone:Separated by hydrogeologic barriers to avoid unreasonable negative impactsNot area serving as a primary municipal or agricultural water supplyDesignation appealable to TWDBPermit at GCD levelUncontested permit process with production limits, permit term, and monitoring requirements consistent with zone designationIf impacts are greater than anticipated, may be amended with approval from TWDB

43HB 1191: Buffer Zones (Isaac)Establishes buffer zones 5 miles outside the boundaries of a PGMACommercial drillers in buffer zone must apply to TWDB and any GCD in the territory the well is located

44HB 898: Well Confidentiality (Ashby)Would protect reports submitted by well owners to GCDs from disclosure under the Public Information ActWell owner must submit a written request for confidentialityGCD may release info only if summarized so individual