Groundwater Management in Texas

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Groundwater Management in Texas
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Common Law

• No Tort LiabilityThe East Case
• No Wasting WaterPleasanton v. Corpus Christi
• No negligent pumping (that causes
  subsidence)Friendswood Development v Smith
  Southwest Industries

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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?

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Ownership Issues

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

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Ownership Issues

• Lawsuits trying to define the ownership interest
• City of San Marcos v. TCEQgroundwater is like
  wild animals wandering from property to property
• EAA v Day McDanieltakings claim based on
  absolute ownership of groundwater

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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.

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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?

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Groundwater Hydrology
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Typical Sandstone Aquifer
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Domestic and Livestock
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DL and Irrigation
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Add Major Municipal Use
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Typical Recharge Zone-Down Dip Aquifer
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Key Consideration Aquifer Levels in Recharge
Zone
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Overproduction or Drought
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Mining the Aquifer
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Gulf Coast Aquifer
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Multiple Aquifers
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Surface Water SystemPre-Development (Gaining
Stream)
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Surface Water System Post-Development (Losing
Stream)
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Groundwater Storage

• Estimated value
• Area of aquifer
• Saturated thickness
• Storativity (or specific yield)

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Width
Length
Saturated Thickness
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Aquifer
Groundwater
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Drainable Groundwater

• Distinct from groundwater storage estimate
• Dependent on
• Well spacing
• Well depth
• (Economic) ability to withstand decreasing
  pumping rates

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Drainable Groundwater

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

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Groundwater Budgets

• Accounting of
• Inflows
• Outflows
• Storage Change

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Predevelopment
Groundwater System
Inflow
Outflow
Equilibrium Inflow Outflow
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Postdevelopment
Pumping
Decreased Outflow
Increased Inflow
Decreased Storage
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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
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Groundwater Conservation Districts
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Groundwater Conservation Districts

• Conservation AmendmentArticle XVI, Section 59
• Chapter 36, Water Code
• Local Control of groundwater supplies

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Current Planning Efforts

• Step 1 State divided into groundwater management
  areas

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Groundwater Management Areas (GMA)
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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)

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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

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Current Planning Efforts

• Managed Available Groundwater
• Generated by TWDB through Groundwater
  Availability Models
• Used for Regional Planning
• Used by GCDs for permitting

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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

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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)

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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)?

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GCD Powers
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Section 36.116, Water Code. Regulation of Spacing
and Production

• 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....

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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.

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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

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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)

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

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• "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."
•  

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"WASTE" is defined by the Texas Legislature
(Section 36.001(8), Water Code) to include

• 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".

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Section 36.113. 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.
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Section 36.1131. 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
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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