Groundwater Management in Texas

Common Law No Tort Liability—The East Case –No Wasting Water—Pleasanton v. Corpus Christi –No negligent pumping (that causes subsidence)—Friendswood Development v Smith Southwest Industries

Common Law Corollary to “Absolute Ownership Doctrine” –Own everything from “heaven to hell” –Ownership with no protection from a trespass? –Does “Absolute Ownership” still apply?

Ownership Issues Who owns groundwater in situ and how is it protected? Cannot build a fence around groundwater. Courts won’t protect your property rights (East and Sipriano). Only option is to have a Groundwater Conservation District.

Ownership Issues Lawsuits trying to define the ownership interest: –City of San Marcos v. TCEQ—groundwater is like wild animals wandering from property to property –EAA v Day & McDaniel—takings claim based on “absolute ownership” of groundwater

Ownership Issues Lawsuits trying to define the ownership interest: –Bragg v EAA: Takings Claim. Judge issued preliminary ruling that Braggs are owed over $700,000 for denying one permit and issuing the other at less than the amount requested. –7KX Investments v TxDOT Condemnation case where damages for groundwater “taken” exceeds $7,000,000.

Ownership Issues Will these lawsuits help or hurt landowners? –Force GCDs to issue permits based on pure correlative rights? –Are GCDs a threat to property ownership? Which is the bigger threat?

Groundwater Hydrology

Typical Sandstone Aquifer

Domestic and Livestock

D&L and Irrigation

Add Major Municipal Use

Typical Recharge Zone- Down Dip Aquifer

Key Consideration: Aquifer Levels in Recharge Zone

Overproduction or Drought

“Mining” the Aquifer

Gulf Coast Aquifer

Multiple Aquifers

Surface Water System Pre-Development (Gaining Stream)

Surface Water System Post-Development (Losing Stream)

Groundwater Storage Estimated value –Area of aquifer –Saturated thickness –Storativity (or specific yield)

Length Width Saturated Thickness

Aquifer Groundwater

Drainable Groundwater Distinct from groundwater storage estimate Dependent on: –Well spacing –Well depth –(Economic) ability to withstand decreasing pumping rates

Drainable Groundwater Drainable groundwater is same as groundwater storage when: –Infinite number of wells, each pumping an infinitesimal amount to drain all storage

Groundwater Budgets Accounting of: –Inflows –Outflows –Storage Change

Predevelopment Groundwater System InflowOutflow Equilibrium: Inflow = Outflow

Postdevelopment Increased Inflow Pumping Decreased Outflow Decreased Storage

Dynamic Changes Due to Pumping Increased inflow –e.g. induced stream recharge Decreased (natural) outflow –e.g. decreased spring discharge Change in storage –e.g. decreased groundwater levels Relative increases and decreases are aquifer specific

Groundwater Conservation Districts

Conservation Amendment—Article XVI, Section 59 Chapter 36, Water Code Local Control of groundwater supplies

Current Planning Efforts Step 1: State divided into groundwater management areas

Groundwater Management Areas (GMA)

Current Planning Efforts Step 2: Each area establishes a “Desired Future Condition” (DFC) Step 3: TWDB runs models to determine the “Managed Available Groundwater” (MAG)

Current Planning Efforts Desired Future Conditions –Condition of the Aquifer in 50 years –Policy decision What is a “Desired Future Condition”? –No drawdown –No more than X amount of drawdown –Maintain springflow (gaining streams) –Maintain springflow during droughts

Current Planning Efforts Managed Available Groundwater –Generated by TWDB through Groundwater Availability Models –Used for Regional Planning –Used by GCDs for permitting

Current Planning Efforts Results: –MAG = limit to the amount of groundwater withdrawals –Eventually 100% of available water will be permitted –As exempt withdrawals grow, permits will shrink –GCDs must decide how to allocate available supplies

Current Planning Efforts Allocation options: –Protect historic uses “to the maximum extent practicable” §36.116(b) Protects investment-backed expectations Cannot be transferred to another place of use or purpose of use (Guitar v. Hudspeth) –Based on acreage or tract size, or acre-feet per acre (allocation correlates to land ownership)

Current Planning Efforts Once 100% of the MAG is allocated, what then? –Stop issuing permits? –Continue issuing permits by reducing existing permits? Exempt all Historic users from reductions? How will this affect 30-year transportation permits (municipal use)?

GCD Powers

Section , Water Code. Regulation of Spacing and Production (a) In order to minimize as far as practicable the drawdown of the water table or the reduction of artesian pressure, to control subsidence, to prevent interference between wells, to prevent degradation of water quality, or to prevent waste, a district by rule may regulate: (1) the spacing of water wells... and (2) the production of groundwater....

Regulation of Spacing is accomplished by: siting new wells minimum distances from property lines/adjoining wells; imposing minimum distances based on production capacity, pump size; other spacing requirements adopted by the board.

Regulation of Production is accomplished by: imposing per-well or well-field production limits; limiting production based on acreage or tract size; limitation based on maximum water to be produced from a defined number of acres assigned to an authorized site;

Regulation of Production is accomplished by: (cont.) by "managed depletion"; or by "limiting the maximum amount of water that may be produced on the basis of acre feet per acre or gallons per minute per well site per acre.“ (well capacity)

What exactly is a "beneficial use"? agriculture; gardening; domestic; stock raising; municipal; mining; manufacturing; commercial; recreational; "pleasure purposes".

"Beneficial" use also includes all the Railroad Commission regulated activities (oil, gas) and sulphur or other minerals. And "any other purpose that is useful and beneficial to the user."

pumping at a rate and volume that causes or threatens intrusion of water unsuitable for gardening, agriculture, stock raising or human consumption; pumping groundwater without putting it to a beneficial use; allowing the groundwater to move to a geologic strata where it cannot be recovered; polluting or contaminating the groundwater with salt or any other deleterious matter; willfully or negligently allowing groundwater to "escape" into a creek, river, roadside ditch, sewer, lake, etc.; allowing irrigated groundwater to escape as tailwater onto adjoining property without the landowner's permission; for groundwater pumped from an artesian well, willfully causing or allowing the water to run off the well owner's land or to "percolate through the stratum above which the water is found". "WASTE" is defined by the Texas Legislature (Section (8), Water Code) to include:

Section Permits for Wells; Permit Amendments. (c) A district may require that the following be included in the permit or permit amendment application: (4) a water conservation plan or a declaration that the applicant will comply with the district's management plan; and (7) a drought contingency plan.

Section Elements of Permit. (b) The permit may include: (9) any conservation-oriented methods of drilling and operating prescribed by the district; (10) a drought contingency plan prescribed by the district;

Conclusion Planning process will put a finite number on groundwater available for permitting State will continue to create GCDs to manage aquifers Lawsuits will continue to be filed until all of these issues are answered