Water Policy in Texas: Implications for Landowners and Easement Holders Stacey A. Steinbach Texas Alliance of Groundwater Districts Texas Land Conservation Conference February 27, 2014
May 20, 2015
Water Policy in Texas: Implications for Landowners and Easement Holders
Stacey A. SteinbachTexas Alliance of Groundwater Districts
Texas Land Conservation ConferenceFebruary 27, 2014
GCD Snapshot
Groundwater Ownership
Emerging Issues
Starting Point: 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”
• Provides little certainty and no protection
Insert the GCD
Conservation, preservation, protection, recharging and prevention of waste of
groundwater and control of subsidence
Highest practicable level of groundwater
production
Source: John Dupnik, BSEACD
History of GCDs
How GCDs Manage Groundwater• Contribute to scientific understanding of aquifers
• Educate and inform the community
• Regulate drilling of wells and production of groundwater
• Participate in joint and regional planning
Joint Planning• DFC = what aquifer will look like in future
• GCDs consider 9 factors (including private property interests), implement balancing test
• GCDs must manage total groundwater production on long-term basis to achieve DFC
• Reviewed every 5 years; public participation
GCD Snapshot
Groundwater Ownership
Emerging Issues
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)• Well used for farming/recreational use during historic period;
flowed under artesian pressure to tank
• EAA issued permit for 14af rather than 700af
• Issues:
– Did the EAA err in reducing permit?
– Can regulation of groundwater = a taking?
– Did the EAA’s action constitute a taking?
EAA v. Day (2012)• Well used for farming/recreational use during historic period;
flowed under artesian pressure to tank
• EAA issued permit for 14af rather than 700af
• Issues:
– Did the EAA err in reducing permit?
– Can regulation of groundwater = a taking?
– Did the EAA’s action constitute a taking?
No
Yes
???
EAA v. Day (2012)• 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)• Two pecan orchards, only one with historic use
• EAA’s issued one reduced permit and denied other
• Court of Appeals found EAA’s actions to be proper but applied Penn Central and found taking
• Compensation based on value of property immediately before and after decision
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)
Private Property Considerations• Penn Central and historic use
• Where does the legacy landowner fit in?
• Surface water / groundwater transfers
• How can/do conservation easements affect groundwater?
• Aquifer Storage and Recovery
GCD Snapshot
Groundwater Ownership
Emerging Issues
Coming Soon – 84th Legislature• Brackish groundwater• Oil and Gas Exemption• Long-term permitting• Aquifer Storage and Recovery• Well drilling and enforcement• New GCDs
Questions?Stacey A. Steinbach
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