Application of Historic Use Standards by Groundwater Districts Lynn Sherman November 4, 2004 presented by to Select Committee on Water Policy

“Historic use” is referenced only twice in Chapter 36 Section (e) -- A groundwater district “may impose more restrictive permit conditions on new permit applications and increased use by historic users” if they: 1.apply to all new permit applications and increased use by historic users, regardless of type or location of use; 2.bear a reasonable relationship to the existing district management plan; and 3.are reasonably necessary to protect existing use. Section (b) -- When promulgating rules limiting groundwater production, a groundwater district “may preserve historic use before the effective date of the rules to the maximum extent practicable consistent with the district’s comprehensive management plan….”

If “existing use” is considered, there are 3 more references Section (d)(2) – Before acting on a permit, a groundwater district must consider whether the proposed use “unreasonably affects existing groundwater and surface water resources or existing permit holders.” Section (c) -- A district “may not impose more restrictive permit conditions on transporters than the district imposes on existing in-district users,” except to the extent the district imposes restrictions on all new permits and increases in historic use, regardless of the type or location of use. Section (f)(2) – In reviewing a proposed export of groundwater out of the district, a district “shall consider…effects on existing permit holders and other groundwater users within the district.”

Conclusions from statutory language The only clear statement about “historic use” is: it can be preserved Existing use more restrictive conditions cannot be imposed a management plan. The “effects” of an out-of-district transfer on existing uses “maximum extent practicable” must be considered in permitting decisions to determine if the proposed use existing permits and resources, to protect existing use in production rules must be considered,but that are more restrictive than those imposed in-district. “unreasonably affects” No further guidance is given. but to the consistent with unless imposed on all new permits. conditions cannot be imposed

Issues regarding “historic use” Farmers Those within the historic period vs. Those outside the historic period Users of the past vs. Users of the future vs. Ranchers Farmers, Cities & Industry

Cities with Significant Reliance on Groundwater ( a sample) San Antonio El Paso Amarillo Lubbock Bryan - College Station Brady Bastrop Bay City Alpine Sugarland Orange Columbus Fredericksburg Burnet Houston Del Rio

Historically (since the 1950’s), groundwater districts have “grandfathered” existing wells, exempting them from production limits. Almost ½ of the groundwater districts have “grandfathered” existing wells from production limits.

The information reflected on this map was derived from a compilation of the following: telephone interviews with groundwater district personnel, review of groundwater district rules, and previous surveys and analysis by Jace Houston, Greg Ellis, and Hunter Burkhalter.

Very recently (since 2001), five groundwater districts have adopted the EAA’s use of a designated historic use period with a beginning and an ending date. Notably, they appear to include areas where there is significant controversy. These districts represent less than 7% of all the districts in the state.

The information reflected on this map was derived from a compilation of the following: telephone interviews with groundwater district personnel and review of groundwater district rules.

Hudspeth County GCD Created:1955 Rules adopted with “historic use”: 2002 Historic Use Period: Jan. 1, 1992 to May 31, 2002 Kinney County GCD Created: 2001 Rules adopted with “historic use”: 2002 Historic Use Period: Jan. 1, 1960 to Dec. 31, 1991 Existing Use Period: Jan. 1, 1992 to Jan. 7, 2003 Groundwater districts with “historic use” periods Edwards Aquifer Authority Created: 1993, but not active until 1996 Rules adopted with “historic use”: 1996 Historic Use Period: June 1, 1972 to May 31, 1993 Clearwater Underground Water CD Created: 1989 Rules adopted with “historic use”: 2004 Historic Use Period: June 1, 1972 to March 2004 Lone Star GCD Created: 2001 Rules adopted with “historic use”: 2002 Historic Use Period: Jan. 1, 1992 to Aug. 26, 2002 Post Oak Savannah GCD Created: 2001 Rules adopted with “historic use”: 2004 Historic Use Period: Jan. 1, 1992 to March 4, 2004

The information reflected on this map was derived from a compilation of the following: telephone interviews with groundwater district personnel, review of groundwater district rules, and previous surveys and analysis by Jace Houston, Greg Ellis, and Hunter Burkhalter.

Specified “historic use” periods appear to be the burning issue, not “grandfathering.” Conclusions and Considerations The issue seems to be “line drawing” among those who are here today. (Those who aren’t can’t advocate). Those who have issues with “historic use” are asserting their rights under the Rule of Capture (whether they know it or not). Interestingly, the same issues exist with “grandfathering.” Therefore, any attempt to address ”historic use” could affect districts that have grandfathered. “Historic use” is a political, not a legal, construct. From a “rule of capture” standpoint, it makes no sense, but from a political standpoint, it can make a lot of sense.