Groundwater Management Update
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Groundwater Management Update

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Stacey A. Steinbach ...

Stacey A. Steinbach
Texas Alliance of Groundwater Districts
TWCA Annual Meeting
March 7, 2012

SB 660: Amendments to DFC Adoption Process
Recent Rulemakings
DFC Appeals
Drought Update
Looking Ahead

www.twca.org

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  • Aquifer uses or conditionsState Water PlanHydrological conditionsEnvironmental impacts*Impacts on subsidenceSocioeconomic impacts*Impact on the interests and rights in private property*Feasibility of achieving DFC*Any other relevant information*(1) the adopted desired future conditions are physically possible and the consideration given groundwater use;  (2) the socio-economic impacts reasonably expected to occur;  (3) the environmental impacts including, but not limited to, impacts to spring flow or other interaction between groundwater and surface water;  (4) the state's policy and legislative directives;  (5) the impact on private property rights;  (6) the reasonable and prudent development of the state's groundwater resources; and  (7) any other information relevant to the specific desired future condition.
  • 54 slides – Bill’s presentation
  • 54 slides – Bill’s presentation;        Sec. 36.1084.  MODELED AVAILABLE GROUNDWATER.  (a)  The Texas Water Development Board shall require the [(o)  The] districts in a management area to [shall] submit to the executive administrator not later than the 60th day after the date on which the districts adopted desired future conditions under Section 36.108(d-3):              (1)  the desired future conditions adopted [established] under Section 36.108;              (2)  proof that notice was posted for the joint planning meeting; and              (3)  the desired future conditions explanatory report [this section to the executive administrator].
  • (1) the adopted desired future conditions are physically possible and the consideration given groundwater use;  (2) the socio-economic impacts reasonably expected to occur;  (3) the environmental impacts including, but not limited to, impacts to spring flow or other interaction between groundwater and surface water;  (4) the state's policy and legislative directives;  (5) the impact on private property rights;  (6) the reasonable and prudent development of the state's groundwater resources; and  (7) any other information relevant to the specific desired future condition.
  • (1) the adopted desired future conditions are physically possible and the consideration given groundwater use;  (2) the socio-economic impacts reasonably expected to occur;  (3) the environmental impacts including, but not limited to, impacts to spring flow or other interaction between groundwater and surface water;  (4) the state's policy and legislative directives;  (5) the impact on private property rights;  (6) the reasonable and prudent development of the state's groundwater resources; and  (7) any other information relevant to the specific desired future condition.
  • (1) the adopted desired future conditions are physically possible and the consideration given groundwater use;  (2) the socio-economic impacts reasonably expected to occur;  (3) the environmental impacts including, but not limited to, impacts to spring flow or other interaction between groundwater and surface water;  (4) the state's policy and legislative directives;  (5) the impact on private property rights;  (6) the reasonable and prudent development of the state's groundwater resources; and  (7) any other information relevant to the specific desired future condition.
  • A district, to the extent possible, shall issue permits up to the point that the total volume of exempt and permitted groundwater production will achieve an applicable desired future condition under Section 36.108 [permitted equals the managed available groundwater, if administratively complete permit applications are submitted to the district].
  • A district, to the extent possible, shall issue permits up to the point that the total volume of exempt and permitted groundwater production will achieve an applicable desired future condition under Section 36.108 [permitted equals the managed available groundwater, if administratively complete permit applications are submitted to the district].
  • Removes requirement to submit approved management plan to TCEQ, removes requirement for noncompliance review for failure to send approved management plan to other districts, requires proposed compliance agreement (rather than may) and shortens district review period to 30 days, adds definition for affected person (293.23 – petition for inquiry section), adds 9 reasons that petition for inquiry can be filed, amends required supporting documentation to coincide with reason for petition, adds requirement that petitioner provide a copy to all districts in GMA AND adjacent to GMA, amends definition of GCD rep on review panel to say s/he can’t be “affected person” instead of “located outside GMA”,
  • A district, to the extent possible, shall issue permits up to the point that the total volume of exempt and permitted groundwater production will achieve an applicable desired future condition under Section 36.108 [permitted equals the managed available groundwater, if administratively complete permit applications are submitted to the district].
  • Sunset: Appeals of district adoption of a DFC would be made to district court in the same manner as any challenge to a district rule under Texas Water Code, Chapter 36, Subchapter H, under substantial evidence review in any county in which the district lies. a district in or adjacent to the [groundwater] management area, or a regional water planning group for a region in the [groundwater] management area
  • Senate option would take away GCD’s ability to challenge; for house version, even though affected person includes GCD, how could GCD file petition with itself?How many bites at the apple?
  • A GCD, to the extent possible, shall issue permits up to the point that the total volume of exempt and permitted groundwater production will achieve an applicable desired future condition under Section 36.108 [permitted equals the managed available groundwater, if administratively complete permit applications are submitted to the district].
  • Down from 96% in October.
  • Survey results reiterate that there is no one-size-fits all solution to groundwater management challengesDistricts over aquifers that are impacted by the drought may be limiting production to protect usersDistricts with deeper formations may be authorizing greater groundwater production to offset reduced surface water supplies
  • Survey results reiterate that there is no one-size-fits all solution to groundwater management challengesDistricts over aquifers that are impacted by the drought may be limiting production to protect usersDistricts with deeper formations may be authorizing greater groundwater production to offset reduced surface water supplies
  • 54 slides – Bill’s presentation        Sec. 36.1084.  MODELED AVAILABLE GROUNDWATER.  (a)  The Texas Water Development Board shall require the [(o)  The] districts in a management area to [shall] submit to the executive administrator not later than the 60th day after the date on which the districts adopted desired future conditions under Section 36.108(d-3):              (1)  the desired future conditions adopted [established] under Section 36.108;              (2)  proof that notice was posted for the joint planning meeting; and              (3)  the desired future conditions explanatory report [this section to the executive administrator].
  • political boundaries/undue restrictions
  • as being unduly restrictive
  • Edwards Group of the Edwards Trinity (Plateau) AquiferPlateau RWPG et al. – not achievableFlying Guest Ranch – WVWA – s
  • as being unduly restrictive
  • arbitrary and capricious
  • End Op – Not enough stakeholder involvement; arbitrary and capricious; not measureable; impacts property rights and economic development unfairlyEnvironmental Stewardship – do not adequately consider the groundwater-surface water relationships
  • CRWA:Inconsistent with current regulatory practices; vague and ambiguousHays Caldwell: not physically possible; adverse socio-economic impacts; inconsistent with state policy; negatively impacts property rights
  • Was a district or person with a legally defined interest in the groundwater within the management area
  • Italicized in original statute; petition process did not change though sunset report recommended change

Groundwater Management Update Groundwater Management Update Presentation Transcript

  • Groundwater Management Update Stacey A. Steinbach Texas Alliance of Groundwater Districts TWCA Annual Meeting March 7, 2012
  • Topics for Discussion• SB 660: Amendments to DFC Adoption Process• Recent Rulemakings• DFC Appeals• Drought Update• Looking Ahead
  • Senate Bill 660
  • SB 660 – Adoption of DFCs• New DFC process allows for more public involvement and requires additional notice• In proposing DFCs, GCDs must now consider 9 specific factors and a balancing test• “District representatives” must meet at least annually and must establish propose for adoption DFCs at least every 5 years
  • New DFC Factors • DFC = quantitative description of desired condition of groundwater resources in a GMA at one or more future times; adopted per 36.108 • In establishing the Before voting on the proposed 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*
  • New DFC Balancing Test Conservation, preservation, protecti on, recharging and prevention of waste of groundwater and control of subsidence Highest practicablelevel of groundwater production
  • New DFC Adoption Process
  • New DFC Adoption Process District reps meet & Each GCD must hold a propose new DFCs for Proposed DFCs mailed to public hearing on adoption; 2/3 of all GCDs; 90-day comment relevant DFCs & makedistrict reps must vote to period begins copies available to public approve DFCs [Within 60 days,]* GCD votes on DFCs; GMA meeting(s) to district reps must submit prepares summary of consider GCD hearing DFCs, proof of notice, &comments & suggested summaries & adopt DFCs explanatory report to revisions (2/3 of all reps) TWDB (and GCDs) GCD meeting to adopt GCDs must update DFCs asap after receipt GCDs must amend rules management plans of explanatory report; within 1 year of updating within 2 years of DFC[info to TWDB within 60 management plan adoption at GMA days of adoption]*
  • Notice of DFC Meetings – GMA Level• 10-day and OMA notice required; must be posted at SOS, COs, and GCDs in GMA and must include: – Date, time, and location – Summary of proposed actions – List of GCDs in GMA and contact information• Failure or refusal of one or more GCDs to post does not invalidate actions• District reps may elect one GCD to be responsible for providing notice of a joint meeting
  • Notice of DFC Meetings – GCD Level• 10-day notice of hearings on DFCs and meetings to adopt DFCs• Notice must include: – Proposed DFCs and agenda items – Date, time, and location – List of GCDs in GMA and contact information – Information on submitting comments• DFC hearings must also be posted pursuant to GCD rulemaking hearing requirements (includes publication)
  • Explanatory Report• Adopted DFCs• Policy and technical justifications for each adopted DFC• Documentation showing how DFC factors were considered• List of DFCs considered but not adopted and reasons why• Analysis of public comments received
  • Using the MAG• Modeled is the new Managed• Defined as the amount of water that may be produced on an average annual basis to achieve a DFC• GCDs, to the extent possible, shall issue permits up to the point that the total volume of exempt and permitted groundwater production will achieve an applicable DFC [permitted equals the MAG, if administratively complete permit applications are submitted…]
  • Using the MAGIn issuing permits, GCDs must manage total groundwater production ona long-term basis to achieve an applicable DFC and consider: Yearly Exempt Previously Actual Precipitation MAG* Use Authorized Production & Estimates* Withdrawals Estimates Production Patterns
  • Agency Rulemakings
  • TWDB Proposed Rules• Dec. 2011: introduction to rulemaking plans for implementing SBs 660, 727, 737• Jan. 2012: Stakeholder meeting; comments accepted through January 31• April 2012: draft rules expected; informal public comment period before formal proposal by Board
  • TCEQ Proposed Rules• SB 313 (creation of GCDs in PGMAs)• SB 660 (Petitions for Inquiry)• Considered by TCEQ March 7• Comment period March 23 – April 23• Public hearing April 17
  • RRC Hydraulic Fracturing Rules• Implement HB 3328; wells permitted on or after January 2, 2012• Require disclosure of hydraulic fracturing fluid ingredients and amount of water used; operator must post on FracFocus on/before submission of well completion report• Exceptions: undisclosed, unintentional, and incidental ingredients and ingredients that are eligible for trade secret protection (can be challenged)
  • Joint Planning• xcv
  • DFC Appeals
  • DFC Appeals - Currently • Currently: 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 • Appeals filed in 7 of the 16 GMAs • Challenges included: Excessive economic/ Excessive Impacts to Use of best InsufficientGeographic private ecological surface available stakeholder area use property impacts waters science input impacts
  • DFC Appeals – What’s Next?• 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)• What about GCD appeal? Which vehicle is appropriate?• GCDs and TWCA members should consider consensus language
  • GCDs and the Drought
  • Effects of the DroughtHas the Drought Affected Your Are the Aquifers in Your District District? Showing Signs of the Drought? No No 13% 24% Yes Yes 76% 87%
  • Effects of the Drought Increase of "dry" wells in the district 46% Implementation of voluntary restrictions 21% Implementation of mandatory restrictions 15%Less time to focus on district administration 33% Increase in community outreach 52% Increase in well registrations 52% Increase in permit applications 73%
  • Effects of the Drought• No one-size-fits all solution to groundwater management challenges• Determining full impact of drought may take years• Encourages increased education and better planning
  • Looking Ahead• House and Senate Interim Charges• EAA v. Day and McDaniel• The Drought• Conservation Strategies & “New” Water Sources
  • Questions? Stacey A. SteinbachTexas Alliance of Groundwater Districts P.O. Box 152169 Austin, Texas 78715-2169 tagdexec@texasgroundwater.org (512) 809-7785 www.texasgroundwater.org
  • EAA v. Day and McDaniel
  • New DFC Adoption ProcessGCDs in GMA meet at OMA/10-day notice of 2/3 of all GCD reps least annually & GMA meetings must vote to approvepropose new DFCs for required; notice at DFCsadoption every 5 years SOS, COs, & GCDs OMA/10-day notice of GCD must hold public90-day comment period GCD meetings required; hearing on relevant begins when DFCs must include proposed DFCs & make copies mailed to GCDs DFCs available to public GCD votes on GMA meeting(s) (notice [Within 60 days,]* GCD DFCs, summarizes per above) to consider reps must submit comments from info & adopt DFCs (2/3 DFCs, proof of notice, &hearing, & suggests any of all members) explanatory report revisions GCD meeting (notice GCDs must update GCDs must amend rules per above) to adopt management plans within 1 year ofrelevant DFCs asap after within 2 years of DFC updating management explanatory report* adoption at GMA plan
  • DFC Appeals – GMA 1• July 2009: GCDs adopt DFCs• Aug. 2009: Mesa Water and G&J Ranch appeal DFCs of Ogallala Aquifer• Feb. 2010: TWDB finds DFCs reasonable• March 2010: Appellants file suit• Sept. 2010: Petition for Inquiry at TCEQ• Feb. 2012: Lawsuit dismissed – no controversy
  • DFC Appeals – GMA 7• July 2010: GCDs adopt DFCs• July 2011: Grass Valley Water appeals DFCs of the Edwards-Trinity (Plateau) Aquifer in Val Verde and Kinney Counties• Jan. 2012: Public hearings• April 2012: Petition to be presented to TWDB
  • DFC Appeals – GMA 9• Aug. 2008: GCDs adopt DFCs• Aug. 2009: Plateau RWPG, Kerr Co, and UGRA appeal DFCs for Edwards• Jan. 2010: TWDB finds DFC unreasonable• July 2010: GMA amends DFC for Edwards; adopts DFC for Trinity• March/July 2011: Flying L Guest Ranch and WVWA appeal DFC of Trinity• March 2012: TWDB finds DFCs reasonable
  • DFC Appeals – GMA 10• Aug. 2008: GCDs adopt DFCs• Jan 2010: Grass Valley Water appeals DFC of Edwards (Balcones Fault Zone) Aquifer in Kinney County• Jan. 2012: Public hearing on DFC• April 2012: Petition to be presented to TWDB
  • DFC Appeals – GMA 11 • April 2010: GCDs adopt DFCs • April 2011: Crown Pine Timber 1 and Forestar appeal DFC of Carrizo-Wilcox Aquifer • Feb. 2012: Public hearing on DFC • May 2012: Petition to be presented to TWDB
  • DFC Appeals – GMA 12 • Aug. 2012: GCDs adopt DFCs • July/Aug. 2011: End Op and Environmental Stewardship appeal DFCs of all or most aquifers • March 2012: Public hearings • June 2012: Petition to be presented to TWDB
  • DFC Appeals – GMA 13• April 2010: GCDs adopt DFCs• Feb./April 2011: CRWA and Hays Caldwell Public Utility Agency appeal DFC of most aquifers• Dec. 2011: Public hearing on DFCs• March 2012: TWDB finds DFCs to be reasonable
  • Petition for Inquiry – SB 660• Affected person: – A landowner in the GMA – A GCD in or adjacent to the GMA – A RWPG with a water management strategy in the GMA – A person who holds or is applying for a permit from a GCD in the GMA – A person who has groundwater rights in the GMA – Any other person defined by TCEQ rule
  • Petition for Inquiry – SB 660• Submit a management plan to TWDB• Participate in joint planning• Adopt rules• Adopt applicable DFCs adopted by the GMA• Update the management plan within 2 years of adoption of new DFCs• Update rules to implement applicable DFCs within a year after updating the management plan• Adopt rules designed to achieve DFCs*• Adopt rules that adequately protect groundwater*• Enforce rules for the adequate protection of groundwater*