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Page 1: Texas Groundwater Association

Groundwater Conservation Districts and Legislation

Stacey Allison Steinbach

Texas Alliance of Groundwater Districts

TGWA 2015 Annual Convention

February 27, 2014

Page 2: Texas Groundwater Association

GCD Snapshot

Groundwater Ownership

Legislative Update

Page 3: Texas Groundwater Association

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

Page 4: Texas Groundwater Association

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

Page 5: Texas Groundwater Association

Source: John Dupnik, BSEACD

History of GCDs

Page 6: Texas Groundwater Association

How GCDs Manage Groundwater

Science

EducationRegulation

of Wells

Joint Planning

Page 7: Texas Groundwater Association

Water Code Chapter 36

• Registration requirements

• Well construction standards

• Well spacing requirements

• Reporting requirements

• Permit requirements

• Production limitations

Regulation of Wells

Page 8: Texas Groundwater Association

Registration Construction Spacing Reporting Permitting Production Limits

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

Page 9: Texas Groundwater Association

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

Page 10: Texas Groundwater Association

GCD=Groundwater Conservation Districts

Page 11: Texas Groundwater Association

GMA=Groundwater Management Area

Page 12: Texas Groundwater Association

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

Page 13: Texas Groundwater Association

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

Page 14: Texas Groundwater Association

Joint Planning

Joint Planning

GCD

GMA

DFC

TWDB

MAG

Page 15: Texas Groundwater Association

TAGD’s GCD Inventory

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

Page 16: Texas Groundwater Association

GCD Snapshot

Groundwater Ownership

Legislative Update

Page 17: Texas Groundwater Association

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

Page 18: Texas Groundwater Association

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

Page 19: Texas Groundwater Association

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

Page 20: Texas Groundwater Association

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

Page 21: Texas Groundwater Association

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?

Page 22: Texas Groundwater Association

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

Page 23: Texas Groundwater Association

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)

Page 24: Texas Groundwater Association

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

Page 25: Texas Groundwater Association

• 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

Page 26: Texas Groundwater Association

• 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

Page 27: Texas Groundwater Association

Groundwater Takings Analysis?

• Economic impact

• Interference with investment backed

expectations

• Character of governmental action

• “Other Relevant Factors”

Page 28: Texas Groundwater Association

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

Page 29: Texas Groundwater Association

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)

Page 30: Texas Groundwater Association

GCD Snapshot

Groundwater Ownership

Legislative Update

Page 31: Texas Groundwater Association

Charles Perry*

Judith Zaffirini**

Brandon Creighton

Bob Hall

Juan “Chuy” Hinojosa

Lois Kolkhorst

José Rodriguez

Senate: Agriculture, Water & Rural Affairs

Page 32: Texas Groundwater Association

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

Page 33: Texas Groundwater Association

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

Page 34: Texas Groundwater Association

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

Page 35: Texas Groundwater Association

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

Page 36: Texas Groundwater Association

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

Page 37: Texas Groundwater Association

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

Page 38: Texas Groundwater Association

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

Page 39: Texas Groundwater Association

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

Page 40: Texas Groundwater Association

Brackish Groundwater Bills

• HB 30 – HB 2578 from 83rd Session

• HB 835 – TAGD consensus bill

• HB 836 – Bill considered by TWCA

Page 41: Texas Groundwater Association

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

Page 42: Texas Groundwater Association

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

Page 43: Texas Groundwater Association

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

Page 44: Texas Groundwater Association

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

Page 45: Texas Groundwater Association

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

Page 46: Texas Groundwater Association

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

Page 47: Texas Groundwater Association

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

Page 48: Texas Groundwater Association

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

Page 49: Texas Groundwater Association

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

Page 50: Texas Groundwater Association

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

Page 51: Texas Groundwater Association

Questions?Stacey Allison Steinbach

[email protected]

twitter.com/TXTAGD

facebook.com/texasgroundwater


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