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GCDs from A to Z

GCDs from A to Z






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    GCDs from A to Z GCDs from A to Z Presentation Transcript

    • GCDs from A to ZStacey A. Steinbach and Kathy Turner Jones Texas Alliance of Groundwater Districts Texas A&M University AWRA Student Chapter October 4, 2012
    • Topics for Discussion• Evolution of Groundwater Management – GCDs – Joint Planning• Evolution of Groundwater Ownership – Previous cases – Senate Bill 332/EAA v. Day• Lone Star GCD as an example of groundwater management
    • 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”• Exceptions: trespass, malicious or wanton conduct, waste, contamination, subsidence due to negligent overpumping
    • Groundwater Conservation Districts
    • History of GCDs• 1917: Conservation Amendment to Texas Constitution• 1949: Statutory framework for creation of GCDs• 1997: GCDs are the “State’s preferred method of groundwater management” (SB 1)• 2012: 96 confirmed GCDs; three awaiting confirmation
    • What is a GCD?• Political subdivision of the state of Texas• Creature of the Legislature, powers expressly granted• Granted specific legal authority related to the management of groundwater; may regulate well spacing and groundwater production• Created to protect and balance private property interests
    • What isn’t a GCD?• Municipal water provider• Water/wastewater treatment provider• Groundwater owner Freedigitalphotos.net
    • How are GCDs created?• By the Texas Legislature, pursuant to Article XVI, Section 59 of the Texas Constitution• By TCEQ, pursuant to a a local petition• By TCEQ, pursuant to the Priority Groundwater Management Area provisions**Confirmation elections are held to confirm creation ortax authority
    • GCD Facts• More than half of water used in Texas is groundwater, 85% is within GCDs• Oldest/largest GCD: High Plains (10,000 sq. miles, 16 counties)• Smallest GCD: Red Sands, Hidalgo County (31 sq. miles)• Some GCDs have additional powers• Cover all or part of 174 counties
    • Population Per GCD 35 30Number of GCDs 25 20 15 10 5 0 < 10,000 10,001 - 50,001 - 100,001 - > 500,000 50,000 100,000 500,000 Population Size n=76
    • Number of Counties Per GCD OneNumber of Counties Two Three Four Five or More 0 10 20 30 40 50 Number of GCDs n=77
    • Type of Community 84% Suburban15% Rural Urban1%
    • Largest Groundwater User in GCD Municipal Oil & Gas Water Supply 8% 36% Combination Industrial/ 3%Commercial 1% Domestic/ Agriculture Livestock 36% 16% n=74
    • Number of Board Members per GCD > 11Number of Board 10-11 Members 8-9 6-7 5 0 10 20 30 40 50 Number of GCDs n=76
    • Elected v. Appointed Board Members 7% 70% Elected Appointed 23% Both n=77
    • Tax-Based v. Fee-Based GCDs 25% Fee 9% Tax 66% Both n=76
    • How Do GCDs Regulate?• GCDs regulate/issue permits in the following ways: – Well spacing – Acreage-based regulations – Use-based regulations• Some wells are exempt from permitting requirements – Wells specifically exempted by the board – Certain domestic and livestock wells – Certain wells related to oil and gas or mining activities
    • Joint Planning
    • Joint Planning GCDMAG GMA TWDB DFC
    • Joint Planning GCDMAG GMA OMG TWDB DFC
    • GCD = Groundwater Conservation District
    • GMA = Groundwater Management Area
    • DFC = Desired Future Condition • Quantifiable future groundwater metric (what aquifer will look like at specified time in future; average drawdown should not exceed __ after __) • Process amended in 2011; in establishing DFCs, GCDs must consider: PrivateAquifer Uses State Water Hydrological Impacts on Propertyor Conditions Plan Conditions Subsidence Rights Any other Socioeconomic Environmental Feasibility of relevant Impacts Impacts achieving DFC information
    • DFC Balancing Test Conservation, preservation, protection, recharging and prevention of waste of groundwater and control of subsidence Highest practicablelevel of groundwater production
    • New DFC Adoption Process
    • TWDB = Texas Water Development Board • Texas state agency; generally not regulatory in nature • Provides loans and funding for state water projects • Oversees the State Water Plan • Provides groundwater expertise in the form of modeling (GAMs, MAGs), groundwater quality monitoring, and groundwater level monitoring • Approves GCD management plans
    • MAG = Modeled Available Groundwater• Amount of water that may be produced on an average annual basis to achieve a DFC• In issuing permits, GCDs must manage total groundwater production on a long-term basis to achieve an applicable DFC and consider : Yearly Previously Actual Precipitation Exempt Use MAG Estimates Authorized Production & Withdrawals Estimates Production Patterns
    • Regional PlanningRWPG GCD MAG GMA TWDB DFC
    • DFC Appeals• Person with a “legally defined interest in groundwater,” a GCD (in or adjacent to), or a RWPG in the GMA can file petition with TWDB to challenge reasonableness• First round: appeals filed in 7 of the 16 GMAs; all resolved• Two separate concepts floated last session: – “Affected person” files petition with GCD; SOAH hearing; PFD; GCD final order; appealable to district court in GMA – GCD’s adoption of DFC may be challenged in district court in local venue in same manner as GCD rule (substantial evidence)
    • Evolution of Groundwater Ownership
    • 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, Inc.• 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• “Recognizes that a landowner owns the groundwater below the surface of the landowners land as real property”• Landowner is 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 the production of groundwater as provided in the Water Code• GCDs are not required to implement a correlative rights approach• Does not affect ability of EAA or subsidence districts to manage groundwater
    • EAA v. Day and McDaniel
    • Facts• 1956: irrigation well drilled on property; in use until 1970s• Prior to 1983: well casing collapsed/pump removed; well continued to produce water that was stored in holding tank and used for irrigation and recreation• 1993: Edwards Aquifer Authority created; historic use period ends• 1994: Plaintiffs purchase property at issue• 1996: Plaintiffs timely request 700 acre-feet of Edwards water; EAA denies full amount due to failure to satisfy historic use requirements
    • Issues• Did the EAA err in limiting plaintiffs’ 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 by the plaintiffs constitute a taking?• Are plaintiffs’ other constitutional arguments valid?
    • Holding• Did the EAA err in limiting plaintiffs’ 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 by the plaintiffs constitute a taking? Don’t know• Are plaintiffs’ other constitutional arguments valid? No
    • Analysis• Reasonable to determine that the groundwater became state water when discharged to the lake• Applied common law ownership of oil and gas to groundwater; held that rule of capture and ownership in place are not mutually exclusive• Landowner has a property interest in the groundwater under his property, subject to the rule of capture and reasonable regulation by a GCD (police power)
    • Analysis• Not enough information in record to determine whether taking occurred• Trial court will conduct a Penn Central (regulatory taking) analysis: – economic impacts – extent of interference with reasonable investment-backed expectations – nature or character of the regulation
    • What We Know• Land ownership includes a constitutionally-protected interest in groundwater in place that cannot be taken for public use without adequate compensation• EAA acted in complete accordance with state-mandated regulatory scheme• Some regulation 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?• Unintended consequences?
    • What’s Next?• District court will decide whether taking occurred as to plaintiffs Day and McDaniel• Legislative response?• Wait and see; business as usual © Larry D. Moore
    • Questions? Stacey A. SteinbachTexas Alliance of Groundwater Districts P.O. Box 152169 Austin, Texas 78715-2169 stacey@texasgroundwater.org (512) 809-7785 www.texasgroundwater.org